[Federal Register Volume 67, Number 23 (Monday, February 4, 2002)]
[Rules and Regulations]
[Pages 5170-5194]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-1754]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[Region 2 Docket No. NY55-237, FRL-7132-5 ]


Approval and Promulgation of Implementation Plans; New York's 
Reasonable Further Progress Plans, Transportation Conformity Budgets, 
Reasonably Available Control Measure Analysis and 1-hour Ozone 
Attainment Demonstration State Implementation Plan

AGENCY: Environmental Protection Agency (EPA or Agency).

ACTION: Final rule.

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SUMMARY: EPA is approving New York State Implementation Plan revisions 
involving the 1-hour Ozone Plan which is intended to meet several Clean 
Air Act requirements for the New York portion of the New York-Northern 
New Jersey-Long Island nonattainment area. These requirements include 
the Reasonable Further Progress Plans, projection year inventories and 
transportation conformity budgets for milestone years 2002, 2005 and 
2007, ozone contingency measures, Reasonably Available Control Measure 
Analysis, 1-hour Ozone Attainment Demonstration and enforceable 
commitments. The intended effect of this action is to approve programs 
required by the Clean Air Act which will result in emission reductions 
that will help achieve attainment of the 1-hour national ambient air 
quality standard for ozone in the New York-Northern New Jersey-Long 
Island nonattainment area.

EFFECTIVE DATE: This rule will be effective March 6, 2002.

ADDRESSES: Copies of the State's submittals are available at the 
following addresses for inspection during normal business hours:
Environmental Protection Agency, Region 2 Office, Air Programs Branch, 
290 Broadway, 25th Floor, New York, NY 10007-1866
New York State Department of Environmental Conservation, Division of 
Air Resources, 625 Broadway, 2nd Floor, Albany, New York 12233
Environmental Protection Agency, Air and Radiation Docket and 
Information Center, Air Docket (6102), 401 M Street, S.W., Washington, 
D.C. 20460

FOR FURTHER INFORMATION CONTACT: Kirk J. Wieber, Air Programs Branch, 
Environmental Protection Agency, 290 Broadway, 25th Floor, New York, 
New York 10007-1866, (212) 637-3381.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. What actions is EPA taking today?
II. What are the details of EPA's specific actions?
    A. 2002, 2005 and 2007 Projection Year Emission Inventories
    B. 2002, 2005 and 2007 Reasonable Further Progress Plans
    C. Ozone Contingency Measures
    D. Conformity Budgets
    E. New York's Reasonably Available Control Measure (RACM) 
Analysis
    F. 1-hour Ozone Attainment Demonstration State Implementation 
Plan (SIP) including enforceable commitments
    1. NOX SIP Call submittal
    2. Clean Air Act measures and control measures relied on in the 
modeled 1-hour Ozone Attainment Demonstration SIP
    3. Enforceable commitments
III. What comments were received in response to EPA's proposals and 
how has EPA responded to those comments?
    A. Attainment Demonstration
    1. General Comments
    2. Weight of Evidence
    B. Reliance on the NOX SIP Call and the Tier 2/Sulfur 
Rule
    C. Comments on RACM
    1. General RACM Comments
    2. RACM Requirements (Comments on EPA's October 16, 2000 Notice 
of Availability)
    3. Point Source NOX Controls
    4. Mobile Source Control Measures
    D. Approval of Attainment Demonstrations That Rely on State 
Commitments or State Rules For Emission Limitations to Lower 
Emissions in the Future not yet Adopted by a State and/or Approved 
by EPA
    E. Adequacy of Motor Vehicle Emissions Budgets
    F. Attainment Demonstration and Rate of Progress Motor Vehicle 
Emissions Inventories
    G. VOC Emission Reductions
    H. Credit for Measures not Fully Implemented
    I. Enforcement of Control Programs
    J. MOBILE6 and Motor Vehicle Emissions Budgets
    K. MOBILE6 Grace Period
    L. Two-Year Option to Revise the Motor Vehicle Emissions Budgets
    M. Measures for the 1-hour national ambient air quality 
standards (NAAQS) and for Progress Toward 8-hour NAAQS
    N. Attainment and Post 1999 Reasonable Further Progress 
Demonstrations
IV. What are EPA's conclusions?
V. Administrative Requirements

I. What Action Is EPA Taking Today?

    EPA is approving several State Implementation Plan (SIP) revisions 
submitted by New York to address Clean Air Act (CAA) requirements 
related to attainment of the 1-hour national ambient air quality 
standard (NAAQS) for ozone. These SIP submittals address the 
requirements for the New York-Northern New Jersey-Long Island ozone 
nonattainment area, which is classified as severe nonattainment. The 
New York portion of the New York-Northern New Jersey-Long Island Area 
is composed of New York City and the counties of Nassau, Suffolk, 
Westchester and Rockland and the towns of Blooming Grove, Chester, 
Highlands, Monroe, Tuxedo, Warwick and Woodbury in Orange County (40 
CFR 81.333). This nonattainment area will be referred to as the New 
York Metro Area.
    Specifically, EPA is approving New York's:

--Emission inventories for 2002, 2005 and 2007 (referred to as 
projection year inventories);

[[Page 5171]]

--2002, 2005 and 2007 Reasonable Further Progress (RFP) Plans;
--Ozone contingency measures;
--2002, 2005 and 2007 transportation conformity budgets (also referred 
to as motor vehicle emissions budgets);
--A Reasonably Available Control Measure (RACM) Analysis; and,
--A 1-hour Ozone Attainment Demonstration including enforceable 
commitments

    Table 1 identifies the submittal dates and amendment dates for the 
RFP Plans, RACM Analysis, conformity budgets and 1-hour Ozone 
Attainment Demonstration, which include the projection year inventories 
and the contingency measures:

   Table 1.--Summary of Submittals Relevant to New York's 1-hour Ozone
                      Attainment Demonstration SIP
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November 27, 1998.................  Submittal of the 1-hour Ozone
                                     Attainment Demonstration SIP
                                     including the RFP plans,
                                     contingency measures, projection
                                     inventories, regional scale
                                     modeling and 2002 and 2005
                                     transportation conformity budgets.
April 15, 1999....................  Supplement to the 1-hour Ozone
                                     Attainment Demonstration SIP
                                     containing response to comments
                                     documentation.
April 18, 2000....................  Supplement to the 1-hour Ozone
                                     Attainment Demonstration SIP
                                     containing measures to address the
                                     NOX SIP Call, revised 2007
                                     transportation conformity budgets
                                     and enforceable commitments for
                                     future actions.
June 15, 2001.....................  Supplement to the 1-hour Ozone
                                     Attainment Demonstration SIP
                                     containing New York's proposed RACM
                                     Analysis.
October 1, 2001...................  Supplement to the 1-hour Ozone
                                     Attainment Demonstration SIP
                                     containing New York's final RACM
                                     Analysis.
------------------------------------------------------------------------

II. What Are the Details of EPA's Specific Actions?

A. 2002, 2005 and 2007 Projection Year Emission Inventories

    On November 27, 1998, New York submitted a SIP revision which 
contained the 2002, 2005 and 2007 ozone projection year emission 
inventories for the New York Metro Area. These emission inventories 
contained information on both volatile organic compounds (VOCs) and 
nitrogen oxides (NOX). EPA proposed approval of the 
inventories on August 13, 2001 (66 FR 42479) and extended the comment 
period for this proposal on October 16, 2001 (66 FR 53560).

B. 2002, 2005 and 2007 Reasonable Further Progress Plans

    On November 27, 1998, New York submitted a SIP revision which 
contained the 2002, 2005 and 2007 RFP Plans for the New York Metro 
Area. New York has identified the control measures necessary to achieve 
the required emission reductions and all the measures have been adopted 
and implemented. These plans identify the control measures which will 
be generating the emission reductions needed to achieve the three 
percent per year reduction averaged over each consecutive three-year 
period until the area reaches attainment. EPA proposed approval on 
August 13, 2001 (66 FR 42479) and extended the comment period for this 
proposal on October 16, 2001 (66 FR 53560).

C. Ozone Contingency Measures

    On November 27, 1998, New York submitted a SIP revision which 
contained the ozone contingency measures for the New York Metro Area 
necessary to fulfill the RFP and ozone attainment requirements of 
section 172(c)(9) of the CAA. Contingency measures are control measures 
that must be implemented should an ozone nonattainment area fail to 
achieve RFP or to attain the NAAQS within the time-frames specified 
under the CAA. Consistent with EPA guidance, New York used a 
combination of excess VOC and NOX emission reductions (0.3 
percent VOC and 2.7 percent NOX), resulting from the 
implementation of adopted State control programs, which will occur by 
each milestone and the attainment year which in both cases are 2002, 
2005 and 2007. EPA proposed approval of the contingency measures on 
August 13, 2001 (66 FR 42479) and extended the comment period for this 
proposal on October 16, 2001 (66 FR 53560).

D. Conformity Budgets

    On November 27, 1998, New York submitted a SIP revision which 
contained the 2002, 2005 and 2007 transportation conformity budgets for 
the New York Metro Area. On November 16, 1999 (64 FR 62194) EPA found 
the 2002 and 2005 budgets for RFP adequate for conformity purposes. On 
April 18, 2000, New York revised the 2007 budgets to reflect the 1-hour 
Ozone Attainment Demonstration SIP for the New York Metro Area. On June 
9, 2000 (65 FR 36690), EPA found the revised 2007 budget for RFP and 
attainment adequate for conformity purposes. EPA proposed approval of 
the conformity budgets on August 13, 2001 (66 FR 42479) and extended 
the comment period for this proposal on October 16, 2001 (66 FR 53560).
    These conformity budgets (see Table 2), which EPA is approving 
today, are consistent with the measures in New York's RFP and 
attainment plans that are also being approved today. It is important to 
note that New York has committed to revise the 2007 transportation 
conformity emissions budget that EPA is approving today within one year 
of the official issuance of the MOBILE6 motor vehicles emissions model 
for regulatory purposes. Therefore, EPA is approving these budgets only 
until New York meets its commitments and submits new 2007 budgets, and 
EPA finds those budgets adequate. Accordingly, once the revised budgets 
are submitted by the State and found adequate by EPA, they will replace 
the 2007 emissions budgets being approved today for conformity 
purposes.

[[Page 5172]]



                               Table 2.--Emission Budgets for Conformity Purposes
                                                 [Tons per day]
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                                              2002                      2005                      2007
              County               -----------------------------------------------------------------------------
                                        VOC          NOX          VOC          NOX          VOC          NOX
----------------------------------------------------------------------------------------------------------------
Bronx.............................           11           17           10           16            9           12
Kings.............................           17           22           16           21           15           17
Nassau............................           38           50           36           48           36           44
New York..........................           15           15           13           14           12           11
Lower Orange County Metro Area....            4            8            4            8            3            6
Queens............................           23           31           21           29           19           23
Richmond..........................            7           10            6           10            7            9
Rockland..........................            9           15            8           15            7           11
Suffolk...........................           35           56           33           55           34           51
Westchester.......................           22           41           20           39           21           37
                                   -----------------------------------------------------------------------------
    Total.........................         *179         *266         *167         *254         *161        *221
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*The totals represent the actual motor vehicle conformity emissions budgets for VOC and NOX. New York subdivided
  the county budget numbers from the totals and rounded off to the nearest whole number, therefore, a sum of the
  county budget numbers identified in Table 2 may be slightly different from the total budget numbers identified
  in Table 2. New York did not adopt subregional budgets, the county breakdowns are only for informational
  purposes in explaining how New York established the totals.

E. New York's Reasonably Available Control Measure (RACM) Analysis

    On June 15, 2001 and supplemented on October 1, 2001, New York 
submitted to EPA its assessment of whether any additional RACM are 
available to advance the 1-hour ozone attainment date from 2007 to an 
earlier year for the New York Metro Area. On September 11, 2001 (66 FR 
47139) EPA proposed approval of New York's RACM Analysis and EPA 
extended the comment period for that proposal on October 16, 2001 (66 
FR 53560). EPA is approving New York's RACM Analysis and has determined 
that there are no additional RACM's beyond those measures already 
included in the New York SIP that, when implemented, would advance the 
attainment date in the New York Metro Area from 2007 to an earlier 
year. However, EPA does believe that the control strategies considered 
in New York's RACM analysis may have potential for reducing ozone 
levels over the longer term, and we recommend that New York and other 
states in the Ozone Transport Region revisit these control strategies 
when they begin implementation of the 8-hour ozone standard.

F. 1-Hour Ozone Attainment Demonstration State Implementation Plan 
(SIP) Including Enforceable Commitments

    On December 16, 1999 (64 FR 70364)), EPA proposed approval of New 
York's 1-hour Ozone Attainment Demonstration SIP. EPA's December 16, 
1999 proposed approval of New York's 1-hour Ozone Attainment 
Demonstration SIP was contingent upon New York submitting the 
following:
     The adopted NOX SIP Call program as a SIP 
revision;
     The adopted CAA required measures for severe nonattainment 
areas and adopted measures relied on in the modeled 1-hour Ozone 
Attainment Demonstration SIP;
     Enforceable commitments to:

--Adopt additional control measures to meet that level of reductions 
identified by EPA for attainment of the 1-hour ozone standard;
--Work through the Ozone Transport Commission (OTC) to develop a 
regional strategy regarding the measures necessary to meet the 
additional reductions identified by EPA;
--Adopt and submit intrastate measures for the emission reductions 
(Backstop) in the event the OTC process does not recommend measures 
that produce emission reductions;
--Submit revised SIP and motor vehicle emissions budget if additional 
adopted measures affect the motor vehicle emissions inventory;
--Revise SIP and motor vehicle emissions budget within 1 year after 
MOBILE6 is issued;
--Perform a mid-course review and submit the results to EPA by December 
31, 2003.

    On April 18, 2000, New York submitted a revision to the 1-hour 
Ozone Attainment Demonstration SIP for the New York Metro Area which 
addressed the requirements identified above. How New York fulfilled 
these requirements is discussed in more detail below.
(1) NOX SIP Call Submittal
    On November 15, 1999, New York adopted Part 204, ``NOX 
Budget Trading Program,'' of New York's Code of Rules and Regulations 
(NYCRR) in order to strengthen its 1-hour Ozone Attainment 
Demonstration SIP and to comply with the NOX SIP Call. On 
May 22, 2001 (66 FR 28059), EPA approved New York's regulations as 
complying with the NOX SIP Call. It is important to note 
that New York is implementing its NOX SIP Call rules 
requiring source compliance by 2003, even though an order from the DC 
Circuit Court allowed that full implementation could be rolled back to 
2004.
(2) Clean Air Act Measures and Control Measures Relied on in the 
Modeled 1-Hour Ozone Attainment Demonstration SIP
    New York has adopted the control measures already required under 
section 182 of the CAA for the New York Metro Area. Table 3 presents a 
summary of the control measures that are relied on in the 1-hour Ozone 
Attainment Demonstration SIP, including Rate of Progress (ROP--plans 
which require emission reductions from 1990 through 1996) and RFP plans 
(plans which require emission reductions from 1996 through the 
attainment year of 2007) for the New York Metro Area. The reader is 
referred to EPA's November 3, 1999 (64 FR 59706) and August 13, 2001 
(66 FR 42479) proposed approvals of New York's ROP and RFP Plans for a 
more detailed discussion of the control measures identified.

[[Page 5173]]



                                      Table 3.--Summary of Control Measures
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               Control measures                                         Type of measure
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Non-Road Mobile Source:
    Reformulated Gasoline (Phases I & II)....  Federal.
    New Engine Standards.....................  Federal.
On-Road Mobile Source:
    Reformulated Gasoline (Phases I & II)....  Federal.
    Tier I--New Vehicle Standards............  Federal.
    Low Emission Vehicle.....................  State adopted and SIP approved.
    Enhanced Inspection and Maintenance (I/M)  State adopted and SIP approved.
    2004 NOX Emission Standards..............  Federal.
Stationary Source control measures:
    VOC Reasonably Available Control           State adopted and SIP approved.
     Technology (RACT).
        --Control Techniques Guidelines (CTG)
         major sources
        --Non-CTG major sources
    MACT (Federal Air Toxics Measures).......  Federal.
    Ozone Transport Commission (OTC) Phase II  State adopted and SIP approved.
     Baseline.
    NOX RACT.................................  State adopted and SIP approved.
    NOX SIP Call.............................  State adopted and SIP approved.
    Large Municipal Waste Combustors.........  State adopted and SIP approved.
Area Source control measures:
    Architectural and Industrial Maintenance   State adopted and SIP approved.
     Coatings.
    Auto Body Refinishing....................  Federal.
    Commercial Bakeries......................  State adopted and SIP approved.
    Consumer Products........................  Federal.
    Graphic Art Facilities...................  State adopted and SIP approved.
    Hospital Sterilizers.....................  State adopted and SIP approved.
    Municipal Solid Waste Landfills..........  State adopted and SIP approved.
    Stage II gasoline vapor recovery.........  State adopted and SIP approved.
    Transit/Loading Losses...................  State adopted and SIP approved.
    Surface Cleaning.........................  State adopted and SIP approved.
----------------------------------------------------------------------------------------------------------------

(3) Enforceable Commitments
Additional Measures To Further Reduce Emissions
    On April 18, 2000 New York submitted an enforceable commitment to 
adopt additional control measures to meet that level of reductions 
identified by EPA in its December 16, 1999 (64 FR 70364) proposed 
approval of New York's 1-hour Ozone Attainment Demonstration SIP and to 
submit those measures by October 31, 2001.
    In addition, as a backstop, New York committed to adopt intrastate 
measures sufficient to achieve the additional reductions if the 
regional measures are not adopted by the relevant states, and to submit 
such rules by October 31, 2001.
    New York also committed to work through the OTC process to develop 
a regional strategy regarding the measures necessary to meet the 
additional reductions identified by EPA. In fact, New York has taken a 
leadership role in the OTC process of identifying and developing 
regional control strategies that would achieve the necessary additional 
reductions to attain the 1-hour ozone standard. New York plans to 
implement regulations consistent with the OTC recommendations, which 
include a consumer products rule, an architectural and industrial 
coatings rule, a mobile equipment refinishing rule, a solvent cleaning 
rule, controls on portable fuel containers as well as the 
NOX model rule (NOX reductions from sources that 
are neither included in the 1994 OTC NOX Memorandum of 
Understanding for regional NOX reductions or covered by 
EPA's NOX SIP Call). New York has begun its regulatory 
development process for these measures. EPA believes that New York is 
making sufficient progress to support approval of the commitment, 
because New York will adopt and implement the additional measures 
within a time period fully consistent with the New York Metro Area 
attaining the standard by November 15, 2007. In a letter dated December 
31, 2001, New York provided additional information on their progress in 
addressing the shortfall in emission reductions. See also section III. 
D. for an expanded discussion on New York's commitment.
Conformity Budgets
    a. On April 18, 2000, New York committed to recalculate and submit 
a revised motor vehicle emissions budget if any of the additional 
emission reductions pertain to motor vehicle measures.
    b. All states whose attainment demonstration includes the effects 
of the Tier 2/sulfur program have committed to revise and re-submit 
their motor vehicle emissions budgets after EPA issues MOBILE6. On 
April 18, 2000, New York submitted an enforceable commitment to revise 
its attainment year transportation conformity budgets within one year 
after MOBILE6 is issued.
    As we proposed in the July 28, 2000 supplemental notice of proposed 
rulemaking (65 FR 46383), the final approval action we are taking today 
will be effective for conformity purposes only until revised motor 
vehicle emissions budgets are submitted and EPA has found them 
adequate. EPA is limiting the duration of its approval in this manner 
because it was only approving the attainment demonstrations and their 
budgets contingent on the states commitment to revise them after EPA 
issues MOBILE6. Therefore, once EPA has confirmed that the revised 
budgets are adequate, they will be more accurate to be used for 
conformity purposes than the budgets EPA is approving today.
    In addition, EPA reopened the comment period to allow comment on 
the additional materials that were placed in the dockets for the 
proposed actions close to or after the initial comment period closed on 
February 14, 2000 (65 FR at 46383, July 28, 2000). For many of the 
areas, including New York, additional information had been placed in 
the docket close to or since the initial comment period concluded. In 
general,

[[Page 5174]]

these materials were identified as consisting of motor vehicle 
emissions budgets, and revised or additional commitments or 
reaffirmations submitted by the states (65 FR at 46387, July 28, 2000).
Mid-Course Review
    On April 18, 2000, New York submitted an enforceable commitment to 
perform a mid-course review and submit the results of this review to 
EPA by December 31, 2003.

III. What Comments Were Received in Response to EPA's Proposals and 
How Has EPA Responded to Those Comments?

    EPA received comments from the public on the Notice of Proposed 
Rulemaking published on December 16, 1999 (64 FR 70364) for New York's 
1-hour Ozone Attainment Demonstration SIP.
    In addition, EPA received comments from the public on the 
supplemental notice of proposed rulemaking published on July 28, 2000 
(65 FR 46383) on the attainment demonstrations, in which EPA clarified 
and expanded on two issues relating to the motor vehicle emissions 
budgets in the attainment demonstration SIPs.
    EPA also received comments on the August 13, 2001 (66 FR 42479) 
proposed approval of the New York RFP plans and transportation 
conformity budgets for 2002, 2005 and 2007 and the September 11, 2001 
(66 FR47139) proposed approval of the New York RACM Analysis.

A. Attainment Demonstration

1. General Comments
    Comment: Several commenters urged EPA to disapprove the attainment 
plan because they believe the plan does not include complete modeling, 
enforceable versions of all RACM and a control strategy sufficient to 
achieve attainment. One commenter went on to say that because they 
believe the plan should be disapproved under the consent decree in NRDC 
v. Browner, Civ. No. 99-2976, EPA must commence promulgation of a 
Federal Implementation Plan (FIP). One commenter supported the proposed 
approval.
    Response: In the following responses, we address the specific 
concerns raised by the commenters in more detail. We believe the plan 
provided by the State of New York is fully approvable under the CAA and 
will provide for attainment as expeditiously as practicable which is by 
November 15, 2007, and that the plan includes all RACMs. Therefore, we 
are finalizing our approval in this action. Furthermore, because we are 
fully approving the plan as meeting the requirements of 182(c)(2) and 
(d) of the CAA, it is unnecessary to commence development of a FIP.
    Comment: New York has not provided modeling that shows attainment 
in 2007. A commenter also states that there is no demonstration of 
maintenance of the ozone standard below the 0.12 parts per million 
(ppm) one-hour standard beyond 2007.
    Response: EPA has taken the position that for nonattainment areas 
subject to the requirements of subpart 2 of part D of the CAA, the area 
needs to demonstrate that in the attainment year, the area will have 
air quality such that the area could be eligible for the two one-year 
extensions provided under section 181(a)(5) of the CAA. Under section 
181(a)(5), an area that does not have three-years of data demonstrating 
attainment of the ozone NAAQS, but has complied with all of the 
statutory requirements and has no more than one exceedance of the NAAQS 
in the attainment year, may receive a one-year extension of its 
attainment date. Assuming those conditions are met the following year, 
the area may receive an additional one-year extension. If the area has 
no more than one exceedance in this final extension year, then it will 
have three-years of data indicating that it has attained the ozone 
NAAQS.
    This position is consistent both with EPA's modeling guidance and 
with the structure of subpart 2 of the CAA. Under EPA's modeling 
guidance, states model air quality for the attainment year--they do not 
model air quality for the three-year period preceding the attainment 
year. As a function of how the model operates, the data produced only 
predicts the air quality for one year. EPA's modeling guidance has 
existed for many years and has been relied on by numerous nonattainment 
areas for demonstrating attainment of the ozone standard. Moreover, EPA 
believes this approach is consistent with the statutory structure of 
subpart 2. Under subpart 2, many of the planning obligations for areas 
were not required to be implemented until the attainment year. Thus, 
Congress did not assume that all measures needed to attain the standard 
would be implemented three years prior to the area's attainment date. 
For example, areas classified as marginal--which had an attainment date 
of three years following enactment of the 1990 Clean Air Act amendments 
were required to adopt and implement RACT and I/M ``fix-ups'' that 
clearly could not be implemented three years prior to their attainment 
date. Similarly, moderate areas were required to implement RACT by May 
1995, only 18 months prior to their attainment date of November 1996. 
Also, the ROP requirement for moderate and above areas, including the 
15 percent ROP plan for reductions by November 1996, applies through 
the attainment year. Thus, EPA believes that Congress did not intend 
that these additional mandatory reductions be in excess of what is 
needed to achieve three-years of ``clean data.''
    For the reasons provided above, EPA does not agree with the 
commenter that the State's attainment demonstration needs to 
demonstrate that the area will have three-years of data showing 
attainment in the attainment year. However, EPA does believe that the 
CAA requires and that it is prudent for states to implement controls as 
expeditiously as practicable. EPA also believes that for the New York 
Metro Area, all measures are being implemented as expeditiously as 
practicable and that the area has demonstrated attainment consistent 
with EPA's modeling guidance.
    A plan for maintenance of the standard is not necessary for the 
attainment demonstration to be approved. A state is not required by the 
CAA to provide a maintenance plan until the state petitions for an area 
to be redesignated to attainment which will not occur until the New 
York Metro Area has three-years of data showing compliance with the 1-
hour ozone standard. While it is not necessary for the State to provide 
for maintenance of the standard at this time, we do believe emissions 
in the New York Metro Area will continue to decrease after 2007 due to 
on- and off-road vehicle emission control programs that will continue 
to provide additional reductions as the fleet continues to turnover 
after 2007. So there is reason to believe that air quality will 
continue to improve after the attainment date.
2. Weight of Evidence
    Comment: The weight of evidence approach does not demonstrate 
attainment or meet CAA requirements for a modeled attainment 
demonstration. Commenters added several criticisms of various technical 
aspects of the weight of evidence approach, including certain specific 
applications of the approach to particular attainment demonstrations. 
These comments are discussed in the following response.
    Response: 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

[[Page 5175]]

attain the 1-hour standard. Section 182(c)(2)(A) provides that ``this 
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, EPA allows states to supplement their 
photochemical modeling results with additional evidence designed to 
account for uncertainties in the photochemical modeling, to demonstrate 
attainment. This approach is consistent with the requirement of section 
182(c)(2)(A) that the attainment demonstration ``be based on 
photochemical grid modeling,'' because the modeling results constitute 
the principal component of EPA's analysis, with supplemental 
information designed to account for uncertainties in the model. This 
interpretation and application of the photochemical modeling 
requirement of section 182(c)(2)(A) finds further justification in the 
broad deference Congress granted EPA to develop appropriate methods for 
determining attainment, as indicated in the last phrase of section 
182(c)(2)(A).
    The flexibility granted to EPA under section 182(c)(2)(A) is 
reflected in the regulations EPA promulgated for modeled attainment 
demonstrations. These regulations provide, ``The adequacy of a control 
strategy shall be demonstrated by means of applicable air quality 
models, data bases, and other requirements specified in [40 CFR part 51 
Appendix W] (Guideline on Air Quality Models).'' \1\ 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 part 
51, Appendix 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.
---------------------------------------------------------------------------

    \1\ 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 
concentration above 0.124 ppm ozone indicates that the area is expected 
to exceed the standard in the attainment year and a prediction at or 
below 0.124 ppm indicates that the area is expected to not exceed the 
standard. Under the statistical test, attainment is demonstrated when 
all predicted (i.e., modeled) 1-hour ozone concentrations inside the 
modeling domain are at, or below, an acceptable upper limit above the 
NAAQS permitted under certain conditions (depending on the severity of 
the episode modeled).\2\
---------------------------------------------------------------------------

    \2\ 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 \3\ to update the 1991 guidance 
referenced in 40 CFR part 51, Appendix 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, a state can rely on, and EPA 
will consider in addition to the results of the modeled attainment 
test, other factors such as other modeled output (e.g., changes in the 
predicted frequency and pervasiveness of 1-hour ozone NAAQS 
exceedances, and predicted change in the ozone design value); actual 
observed air quality trends (i.e. analyses of monitored air quality 
data); estimated emissions trends; and the responsiveness of the model 
predictions to further controls.
---------------------------------------------------------------------------

    \3\ Ibid.
---------------------------------------------------------------------------

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

    \4\ ``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.
---------------------------------------------------------------------------

    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 is predicting the 
change in ozone from the base period to the future attainment date. The 
three yearly design values (highest across the area) are averaged to 
account for annual fluctuations in

[[Page 5176]]

meteorology. The result is an estimate of an area's base year design 
value. The base year design value is multiplied by a ratio of the peak 
model predicted ozone concentrations in the attainment year (i.e., 
average of daily maximum concentrations from all days modeled) to the 
peak model predicted ozone concentrations in the base year (i.e., 
average of daily maximum concentrations from all days modeled). The 
result is an attainment year design value based on the relative change 
in peak model predicted ozone concentrations from the base year to the 
attainment year. Modeling results also show that emission control 
strategies designed to reduce areas of peak ozone concentrations 
generally result in similar ozone reductions in all core areas of the 
modeling domain, thereby providing some assurance of attainment at all 
monitors.
    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 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 
reach attainment 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 would contribute to three 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 base 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 
reach attainment.
    A commenter 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 future design value--
should be considered a model-predicted estimate. Therefore, results 
from this technique are an extension of ``photochemical grid'' modeling 
and are consistent with section 182(c)(2)(A). Also, a commenter 
believes that EPA has not provided sufficient opportunity to evaluate 
the calculations used to estimate additional emission reductions. EPA 
provided a full 60-day period for comment on all aspects of the 
proposed rule. EPA has received several comments on the technical 
aspects of the approach and the results of its application, as 
discussed above and in the responses to the individual SIPs.
    A commenter states that application of the method of attainment 
analysis used for the December 16, 1999 proposals 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 parts per 
billion (ppb) on every modeled day. However, the commenter's approach 
may overestimate needed controls because the form of the standard 
allows up to three exceedances in three years 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 WOE 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. This information includes model results for the majority of the 
control measures. Although not all measures were modeled, EPA reviewed 
the model's response to changes in emissions as well as observed air 
quality changes to evaluate the impact of a few additional measures, 
not modeled. EPA's decision was further strengthened by each State's 
commitment to check progress towards attainment in a mid-course review.
    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 part 51, Appendix 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 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 in order to estimate additional emission reductions to achieve 
an additional increment of ambient improvement in ozone.

[[Page 5177]]

    For example, if monitoring or modeling results indicate that ozone 
was reduced by 25 parts per billion 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--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 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: (1) it obviates the need to expend more time and 
resources to perform additional modeling; (2) it is more consistent 
with recommendations referenced by Appendix W because the adjustment 
factor is a locally derived relationship between ozone and its 
precursors based on air quality observations and/or modeling which does 
not assume a direct proportional relationship between ozone and its 
precursors; (3) lastly, the requirement that areas perform a mid-course 
review (a check of progress toward attainment) provides a margin of 
safety.
    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 upon a proportional rollback technique 
in this rulemaking, 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 proposal and has responded to all comments 
received on that guidance elsewhere in this document.
    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: (1) Only selected time periods were modeled, not 
the entire three-year period used as the definitive means for 
determining an area's attainment status; (2) 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 of these 
limitations, 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.
    The commenter also complained that EPA has applied the WOE 
determinations to adjust modeling results only when those results 
indicate nonattainment, and not when they indicate attainment. 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.
    The commenter further criticized EPA's application of the WOE 
determination on grounds that EPA ignores evidence indicating that 
continued nonattainment is likely, such as, according to the commenter, 
monitoring data 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 and has determined that the 1999 monitor values do not 
constitute substantial evidence indicating that the SIPs will not 
provide for attainment. The values given do not reflect either the 
local or regional control programs which are scheduled for 
implementation in the next several years. Once implemented, the local 
or regional control programs 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 reductions 
anticipated by control measures, that are or will be approved into the 
SIP, there is no way to determine how the UAM predictions for 1999 
compare to the 1999 air quality. Therefore, we can not determine 
whether or not the monitor values exceed the NAAQS by a wider margin 
than the UAM predictions for 1999. In summary, there is little evidence 
to support the conclusion that high exceedances in 1999 will continue 
to

[[Page 5178]]

occur after adopted control measures are implemented.
    In addition, the commenter argued that in applying the WOE 
determinations, EPA ignored factors showing that the SIPs under-predict 
future emissions, and the commenter included as examples certain mobile 
source emissions sub-inventories. EPA did not ignore possible under-
prediction in mobile emissions. EPA is presently evaluating mobile 
source emissions data as part of an effort to update the computer model 
for estimating mobile source emissions. EPA is considering various 
changes to the model, and is not prepared to conclude at this time that 
the net effect of all these various changes would be to increase or 
decrease emissions estimates. For attainment demonstration SIPs that 
rely on the Tier 2/Sulfur program for attainment or otherwise (i.e., 
reflect these programs in their motor vehicle emissions budgets), 
states have committed to revise their motor vehicle emissions budgets 
after the MOBILE6 model is issued. 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: The NAAQS require that in order to demonstrate attainment 
of the 1-hour NAAQS that no more than 4 ambient ozone concentrations 
exceed 0.12 ppm (235 micrograms per cubic meter) within any three-year 
period. That standard was based on the evidence needed to establish a 
margin of safety for ozone. Unlike the 8-hour standard, the 1-hour 
standard contains no ``rounding convention.'' No provision of the rule 
provides authority for EPA to approve SIPs that will only achieve 124 
ppb (242.6 grams per cubic meter). Thus even if EPA has authority to 
adopt WOE criteria as a substitute for modeled demonstrations of 
attainment, which we dispute, then the New York SIP submission does not 
demonstrate attainment of the 1-hour NAAQS because it only proposes to 
reduce ambient ozone to 124 ppb.
    Response: Although the 1-hour NAAQS itself includes no discussion 
of specific data handling conventions similar to that of the 8-hour 
NAAQS, EPA's publicly articulated position and the approach long since 
universally adopted by the air quality management community is that the 
interpretation of the 1-hour ozone standard requires rounding ambient 
air quality data consistent with the stated level of the standard. EPA 
has clearly communicated the data handling conventions for the 1-hour 
ozone NAAQS in regulation and guidance documents. In the 1990 
Amendments to the CAA, Congress expressly recognized the continuing 
validity of EPA guidance.
    As early as 1977, two years before EPA promulgated the 1-hour ozone 
NAAQS, EPA provided in guidance that the level of the standard dictates 
the number of significant figures to be used in determining whether the 
standard was exceeded (Guidelines for the Interpretation of Air Quality 
Standards, OAQPS No. 1.2-008, February 1977 ). In addition, the 
regulations governing the reporting of annual summary statistics from 
ambient monitoring stations for use by EPA in determining national air 
quality status clearly indicate the rounding convention to be used for 
1-hour ozone data (40 CFR Part 58, Appendix F). In 1979, EPA issued 
additional guidance specific to ozone in which EPA provided that ``the 
stated level of the standard is taken as defining the number of 
significant figures to be used in comparisons with the standard. For 
example, a standard level of 0.12 ppm means that measurements are to be 
rounded to two decimal places (.005 rounds up), and, therefore, 0.125 
ppm is the smallest concentration value in excess of the level of the 
standard.'' (Guideline for the Interpretation of Ozone Air Quality 
Standards, EPA-450/4-79-003, at p. 6.) EPA's guidance on air quality 
modeling is consistent with those Guidelines. See e.g., Guidance on Use 
of Modeled Results to Demonstrate Attainment of the Ozone NAAQS, July 
1996.
    The level of the 1-hour ozone NAAQS is defined in 40 CFR 50.9 as 
0.12 ppm, not 120 ppb as implied by the commenter. In other words, the 
1-hour ozone NAAQS is specified as two significant digits and the data 
handling approach employed to compare ambient air quality data to the 
1-hour ozone standard is to round to two decimal places as per the 
regulations and guidance referenced above.
    In the 1990 Amendments to the CAA, Congress expressly provided that 
``[e]ach regulation, standard, rule, notice, order and guidance 
promulgated or issued by the Administrator under this Act, as in effect 
before the date of the enactment of the CAA Amendments of 1990 shall 
remain in effect according to its terms * * *'' Thus, under the amended 
CAA, Congress expressly carried forth EPA interpretations set forth in 
guidance such as the guideline documents interpreting the NAAQS.

B. Reliance on the NOX SIP Call and the Tier 2/Sulfur Rule

    Comment: Several commenters stated that given the uncertainty 
surrounding the NOX SIP Call at the time of EPA's proposals 
on the attainment demonstrations, there is no basis for the conclusion 
reached by EPA that states should assume implementation of the 
NOX SIP Call, or rely on it as a part of their 
demonstrations. One commenter claims that there were errors in the 
emissions inventories used for the NOX SIP Call Supplemental 
Notice (SNPR) and that these inaccuracies were carried over to the 
modeling analyses, estimates of air quality based on that modeling, and 
estimates of EPA's Tier 2 tailpipe emissions reduction program not 
modeled in the demonstrations. Thus, because of the inaccuracies in the 
inventories used for the NOX SIP Call, the attainment 
demonstration modeling is also flawed. Finally, one commenter suggests 
that modeling data demonstrates that the benefits of imposing 
NOX SIP Call controls are limited to areas near the sources 
controlled.
    Response: These comments were submitted prior to several court 
decisions largely upholding EPA's NOX SIP Call, Michigan v. 
United States Env. Prot. Agency, 213 F.3d 663 (D.C. Cir. 2000), cert. 
denied, U.S., 121 S. Ct. 1225, 149 L.Ed. 135 (2001); Appalachian Power 
v. EPA, 251 F.3d 1026 (D.C. Cir. 2001). Although a few issues were 
vacated or remanded to EPA for further consideration, these issues do 
not concern the accuracy of the emission inventories relied on for 
purposes of the NOX SIP Call. Moreover, contrary to the 
commenter's suggestion, the NOX SIP Call modeling data bases 
were not used to develop estimates of reductions from the Tier 2/Sulfur 
program for the severe area 1-hour attainment demonstrations. 
Accordingly, the commenter's concerns that inaccurate inventories for 
the NOX SIP Call modeling lead to inaccurate results for the 
severe area 1-hour attainment demonstrations are inapposite.
    The remanded issues do affect the ability of EPA and the states to 
achieve the full level of the NOX SIP Call reductions by May 
2004. First, the court vacated the rule as it applied to two States--
Missouri and Georgia--and also remanded the definition of a co-
generator and the assumed emission limit for internal combustion 
engines. EPA has informed the states that until EPA addresses the 
remanded issues, EPA will accept SIPs that do not include those small 
portions of the emission

[[Page 5179]]

budget. However, EPA is planning to propose a rule shortly to address 
the remanded issues and ensure that emission reductions from these 
states and the emission reductions represented by the two source 
categories are addressed in time to benefit the severe nonattainment 
areas. Also, although the court in the Michigan case subsequently 
issued an order delaying the implementation date to no later than May 
31, 2004, and the court in the Appalachian Power case remanded an issue 
concerning computation of the electric generating unit growth factor, 
it is EPA's view that states should assume that the NOX SIP 
Call reductions will occur in time to ensure attainment in the severe 
nonattainment areas. Both EPA and the states are moving forward to 
implement the NOX SIP Call.
    Finally, contrary to the commenter's conclusions, EPA's modeling to 
determine the region-wide impacts of the NOX SIP Call 
clearly shows that regional transport of ozone and its precursors is 
impacting nonattainment areas several states away. This analysis was 
upheld by the court in Michigan.
    Comment: New York State Department of Environmental Conservation 
(NYSDEC) commented that EPA is proposing that the State submit the 
NOX SIP Call prior to EPA's taking final action on the 
December 16, 1999 proposal. However, the State agency believes that it 
cannot submit a SIP until EPA publishes a correction to its ``Technical 
Amendment to the Finding of Significant Contribution and Rulemaking for 
Certain States for Purposes of Reducing Regional Transport of Ozone.''
    Response: New York submitted this comment in early 2000, prior to 
the time EPA published a technical amendment (see 65 FR 11222, March 2, 
2000), which revised the NOX statewide emissions budget for 
New York and other affected states. Since that time, New York submitted 
its rule in response to the NOX SIP Call rule and EPA 
approved the rule (66 FR 28059).
    Comment: New York has decided to commit to the California Low 
Emission Vehicle Program (CA LEV II), rather than meeting EPA's Tier 2 
tailpipe emissions program. The Department recommends that EPA's final 
rulemaking permit New York the option of modeling CA LEV II.
    Response: EPA has permitted New York the option of modeling CA LEV 
II. On June 9, 2000 (65 FR 36690) EPA notified the public that EPA has 
found that the motor vehicle emissions budget for VOC's and 
NOX, in the submitted 2007 1-hour Ozone Attainment 
Demonstration SIP for the New York Metro Area, is adequate for 
conformity purposes. New York's motor vehicle emissions budget reflects 
the results of a modeled CA LEV II program.

C. Comments on RACM

1. General RACM Comments
    Comment: Several commenters have stated that there is no evidence 
that New York has adopted RACM or that the SIP provides for attainment 
as expeditiously as practicable. Specifically, the lack of 
Transportation Control Measures (TCMs) was cited in several comments, 
but commenters also raised concerns about potential stationary source 
controls. One commenter stated that mobile source emission budgets in 
the plans are by definition inadequate because the SIPs do not 
demonstrate timely attainment or contain the emissions reductions 
required for all RACM. That commenter claims that EPA may not find 
adequate a motor vehicle emission budget that is derived from a SIP 
that is inadequate for the purpose for which it is submitted. The 
commenter alleges that none of the motor vehicle emissions budgets 
submitted by the states that EPA is considering for adequacy is 
consistent with the level of emissions achieved by implementation of 
all RACM, nor are they derived from SIPs that provide for attainment. 
Some commenters stated that for measures that are not adopted into the 
SIP, the State must provide a justification for why the measures were 
determined to not be RACM.
    Response: EPA reviewed the initial SIP submittals for the New York 
Metro Area and determined that they did not include sufficient 
documentation concerning available RACM measures. For all of the severe 
areas for which EPA proposed approval in December 1999, EPA 
consequently issued policy guidance memorandum to have these states 
address the RACM requirement through an additional SIP submittal. 
(Memorandum of December 14, 2000, from John S. Seitz, Director, Office 
of Air Quality Planning and Standards, re: ``Additional Submission on 
RACM from States with Severe 1-hour Ozone Nonattainment Area SIPs'').
    However, New York supplemented its original SIP with an analysis of 
RACM (request to parallel process submitted on June 15, 2001 and 
adopted revision submitted on October 1, 2001). EPA proposed to approve 
this supplement to the SIP as meeting the RACM requirements on 
September 11, 2001 (66 FR 47139). Based on this supplement, EPA 
concluded that the SIP for the New York Metro Area meets the 
requirement for adopting RACM.
    Section 172(c)(1) of the CAA requires SIPs to contain RACM and 
provides for areas to reach attainment as expeditiously as practicable. 
EPA previously provided guidance interpreting the requirements of 
172(c)(1). See 57 FR 13498, 13560. In that guidance, EPA indicated its 
interpretation that potentially available measures that would not 
advance the attainment date for an area would not be considered RACM. 
EPA also indicated in that guidance that states should consider all 
potentially available measures to determine whether they were 
reasonably available for implementation in the area, and whether they 
would advance the attainment date. Further, states should indicate in 
their SIP submittals whether measures considered were reasonably 
available or not, and if measures are reasonably available they must be 
adopted as RACM.
    Finally, EPA indicated that states could reject measures as not 
being RACM because they would not advance the attainment date, would 
cause substantial widespread and long-term adverse impacts, would be 
economically or technologically infeasible, or would be unavailable 
based on local considerations, including costs. The EPA also issued a 
recent memorandum re-confirming the principles in the earlier guidance, 
entitled, ``Guidance on the Reasonably Available Control Measures 
(RACM) Requirement and Attainment Demonstration Submissions for Ozone 
Nonattainment Areas.'' John S. Seitz, Director, Office of Air Quality 
Planning and Standards. November 30, 1999. Web site: http://www.epa.gov/ttn/oarpg/t1pgm.html.
    On June 15, 2001, New York submitted a proposed analysis of RACM 
for the New York Metro Area which was adopted after public hearing on 
October 1, 2001 without substantive changes. The RACM analysis included 
an evaluation of potential TCMs for on-road mobile sources, potential 
control measures for point, area and off-road sources, and other non-
TCM on-road control measures.
    New York determined that there are no additional control measures, 
above and beyond what the State is already implementing, that would 
advance the 2007 attainment date specified in the CAA for severe ozone 
nonattainment areas, because the reductions from any potential RACM 
measures in the short-term are small compared to the reductions that 
will be achieved by 2007 through measures that are already in place or 
through measures which the State has previously committed to implement. 
In fact, the New York 1-hour

[[Page 5180]]

Ozone Attainment Demonstration SIP for the New York Metro Area, the 15 
percent ROP plan, and the continuing 3 percent per year RFP emission 
reductions, already require emission controls on a wide variety of 
sources. Nevertheless, New York clearly states that there is nothing 
within its RACM assessment that precludes it from adopting the measures 
discussed in the assessment for the purpose of meeting the requirements 
for motor vehicle transportation conformity, attainment of an 8-hour 
ozone standard or any other air quality standard, and control of 
certain air toxins, or for any other reason to protect public health. 
In fact, over the period beyond the attainment date, some of these 
strategies may provide significant benefit. In some instances, there 
are efforts already underway to implement some strategies.
    Although EPA does not believe that section 172(c)(1) requires 
implementation of additional measures for the New York Metro 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.
    Also, EPA has long advocated that states consider the kinds of 
control measures that the commenters have suggested, and EPA has indeed 
provided guidance on those measures. See, e.g., http://www.epa.gov/otaq/transp.htm. In order to demonstrate that they will attain the 1-
hour ozone NAAQS as expeditiously as practicable, some areas may need 
to consider and adopt a number of measures--including the kind that New 
York 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.
    Because EPA is finding that the SIP meets the CAA's requirement for 
RACM and that there are no additional reasonably available control 
measures that can advance the attainment date, EPA concludes that the 
attainment date being approved is as expeditious as practicable.
    EPA previously responded to comments concerning the adequacy of 
motor vehicle emissions budgets when EPA took final action determining 
the budgets adequate and does not address those issues again here. The 
responses are found at http://www.epa.gov/otaq/transp/conform/reg2sips.htm#ny.
    Comment: A commenter stated that New York State's submission fails 
to demonstrate how implementation of the two RACM it considered 
(referring to a construction/ozone action day program and alternate 
fuel program) and the other RACM is summarily dismissed from 
consideration, when taken together, would not advance the ozone 
attainment date. The commenter states that New York uses an arbitrary 
threshold value for screening individual control measures.
    Response: New York's analysis of potential RACM considered 
information from the following sources:

1. Section 108(f) of the CAA
2. A list of control measures completed by the State and Territorial 
Air Pollution Program Administrators (STAPPA)/Association of Local Air 
Pollution Control Officials (ALAPCO)
3. Ozone attainment suggested shortfall measures developed by the Ozone 
Transport Commission (OTC)
4. Control measures implemented through the California Federal 
Implementation Plan
5. Control measures implemented in other serious and severe ozone 
nonattainment areas
6. Control measures suggested by commenters during public comment 
periods on New York's attainment SIP, and
7. Transportation Control Measures analyzed by the New York State 
Department of Transportation (NYSDOT) in a document entitled, ``NYSDOT 
Conformity Measure Analysis''

    New York's analysis summed the VOC and NOX potential 
emission reductions from the numerous possible measures, including all 
the reductions from all the measures identified in the NYSDOT study. 
New York's analysis of TCM's examined the potential emissions 
reductions from measures included in the documents listed previously. 
Although, New York did establish a threshold value for screening 
individual control measures, EPA in its review for approvability, 
reanalyzed the measures identified by New York as having potential 
emission reductions and supplemented New York's rationale on why we 
believed certain measures could be rejected as RACM. In its review of 
the potential emission reductions identified by New York, EPA, as did 
New York, rejected measures as not being RACM because they either would 
not advance the attainment date (when combined would produce only a 
negligible amount of emission reductions), would cause substantial 
widespread and long-term adverse impacts, would be economically or 
technologically infeasible, or would be unavailable based on local 
considerations, including costs.
    The combination of measures examined by New York indicate potential 
reductions, but it is important to note that the estimate did not 
consider practical limitations in their implementation prior to 2007. 
Unfortunately, many of the actions needed to bring these measures to 
full fruition cannot be fully implemented in time to advance the 
attainment date from 2007 to an earlier year. For the NYSDOT study in 
particular, the measures are currently under interagency review and 
represent values at the maximum potential emissions reduction range and 
not values that could potentially be achieved before 2007. For 
instance, the NYSDOT study estimated significant potential emission 
reductions associated with a construction/ozone action day program. 
However, NYSDOT in estimating the emission reductions, did not consider 
significant issues which need to be addressed before it can be 
considered a RACM for the 1-hour ozone standard. These include analyses 
of: (1) Quantity of night-time construction that already takes place to 
ensure that emission reduction benefits are not ``double counted;'' (2) 
air quality impacts to ensure that the night-time emissions for New 
York are not contributing to ozone problems in downwind nonattainment 
areas; (3) air pollutant emissions from generators needed for lighting 
and supporting night-time activities; (4) costs associated with 
implementing the construction/ozone action day program; and (5) the 
estimated number of ozone action days based on exceedances of the 1-
hour ozone standard and not an 8-hour standard. These considerations 
would substantially reduce the emission reductions for a construction/
ozone action day program.

[[Page 5181]]

    On a related note, New York's analysis of the impact of alternate 
fuel-consuming vehicles examined the benefits associated with 
conversion of all government vehicles in the New York Metro Area, 
regardless of vehicle weight, age or function, to use fuels which 
exhibit fewer emissions than gasoline-consuming vehicles. While New 
York identified significant potential reductions associated with an 
alternate fuels program, there is a lack of sufficient infrastructure 
currently in place for supply of alternate fuel for all government 
fleets. In addition, the analysis double counts reductions from 
vehicles that have already been converted. The New York City Department 
of Transportation currently only has two compressed natural gas (CNG) 
bus refueling stations capable of handling 200 buses each, with plans 
to convert five more stations by 2005. This would give a total capacity 
of seven stations for 1400 buses, out of a fleet of 3000 buses 
available for conversion. Moreover, the analysis does not recognize 
that existing non-CNG buses may have a useful life that extends beyond 
2007 and that it may not be economically feasible to replace these 
buses before completion of their useful life. The promise of 
substantial emission reductions associated with this measure is 
contingent on a phase-in period for fleet vehicle turnover and further 
infrastructure development, which can be achievable, but not in time to 
advance attainment by 2006 or sooner. Therefore, this measure cannot be 
considered a RACM for the 1-hour ozone standard. Nevertheless, EPA 
believes alternate fuels for government vehicle fleets does offer 
potential emissions reductions to help achieve long-term environmental 
benefits.
    New York's RACM Analysis and EPA's evaluation of their analysis did 
look at all measures in various categories at a reasonable level of 
implementation and concluded that as a whole these categories of 
measures taken together would not advance attainment or would otherwise 
not be reasonably available.
2. RACM Requirements (Comments on EPA's October 16, 2000 Notice of 
Availability)
    The following comments are similar to comments EPA received in 
response to its October 16, 2000 Notice of Availability (65 FR 61134). 
Notice was given that EPA performed an analysis to evaluate emission 
levels of NOX and VOC and their relationships to the 
application of current and anticipated control measures expected to be 
implemented in four serious 1-hour ozone nonattainment areas. Although 
the New York Metro severe ozone nonattainment area was not included in 
EPA's October 16, 2000 Notice of Availability, the commenter 
resubmitted these comments in response to EPA's September 11, 2001 ( 66 
FR 47139) proposed approval of New York's RACM analysis because they 
believe that the comments are appropriate to New York's RACM analysis.
    Comment: Inappropriate grounds for rejecting RACM. The commenter 
claims that EPA's bases for rejecting measures as RACM are 
inappropriate considerations: (a) The measures are ``likely to require 
an intensive and costly effort for numerous small area sources''; or 
(b) the measures ``do not advance the attainment dates'' for the areas, 
65 FR 61134. Neither of these grounds are legally or rationally 
sufficient bases for rejecting control measures. The commenter further 
states that motor vehicle Inspection and Maintenance (I/M) requires 
intensive and costly effort and Congress mandated it.
    Response: The EPA's approach toward 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.'' 
[Emphasis added.] The EPA interprets this language as tying the RACM 
requirement to the requirement for attainment of the national primary 
ambient air quality standard. The CAA provides that the attainment date 
shall be ``as expeditiously as practicable but no later than * * * '' 
the deadlines specified in the CAA. EPA believes that the use of the 
same terminology in conjunction with the RACM requirement serves the 
purpose of specifying RACM as the way of expediting attainment of the 
NAAQS in advance of the deadline specified in the CAA. As stated in the 
``General Preamble'' (57 FR 13498 at 13560, April 16, 1992), ``The EPA 
interprets this requirement to impose a duty on all nonattainment areas 
to consider all available control measures and to adopt and implement 
such measures as are reasonably available for implementation in the 
area as components of the area's attainment demonstration.'' [Emphasis 
added.] In other words, because of the construction of the RACM 
language in the CAA, EPA does not view the RACM requirement as separate 
from the attainment demonstration requirement. Therefore, EPA believes 
that the CAA supports its interpretation that measures may be 
determined to not be RACM if they do not advance the attainment date. 
In addition, EPA believes that it would not be reasonable to require 
implementation of measures that would not in fact advance attainment. 
See 57 FR 13560. EPA has consistently interpreted the CAA as requiring 
only such RACM as will provide for expeditious attainment since the 
Agency first addressed the issue in guidance issued in 1979. See 44 FR 
20,372, 20,375 (April 4, 1979).
    The term ``reasonably available control measure'' is not actually 
defined in the definitions in the CAA. Therefore, the EPA 
interpretation that potential measures may be determined not to be RACM 
if they require an intensive and costly effort for numerous small area 
sources is based on the common sense meaning of the phrase, 
``reasonably available.'' A measure that is reasonably available is one 
that is technologically and economically feasible and that can be 
readily implemented. Ready implementation also includes consideration 
of whether emissions from small sources are relatively small and 
whether the administrative burden, to the states and regulated 
entities, of controlling such sources was likely to be considerable. As 
stated in the General Preamble, EPA believes that states can reject 
potential measures based on local conditions including cost. 57 FR 
13561.
    Also, the time needed to develop rules will vary. Such development 
will likely take much longer for a large number of very different 
source categories of small sources for which little control information 
may exist, than for source categories for which control information 
exists or that comprise a smaller number of larger sources. The longer 
the time it takes a state to develop rules the less likely the 
possibility that the emission reductions from the rules would advance 
the attainment date. New York has determined and we agree that such 
additional measures in the New York Metro Area could not be developed 
soon enough to advance the attainment date.
    In reference to I/M, Congress never mandated it as RACM but rather 
required it separately and EPA disagrees that I/M is not economically 
feasible, in fact we think it is relatively cheap for the resulting 
emission reductions.

[[Page 5182]]

    Comment: Congress ratified EPA's 1979 RACM guidance as interpreted 
in the Delaney v. EPA, 898 F.2d 687 (1990) case. This decision 
indicates Congress' intent that states should include control measures 
in a SIP unless the state determines that such measures are not 
reasonably available.
    Response: EPA changed that guidance in the 1992 ``General 
Preamble'' to remove the presumption that section 108(f) of the CAA 
measures were RACM and to clarify that areas only need such RACM as 
will advance attainment, see 57 FR 13498, 13560-61.
    Comment: Although EPA does not articulate a dividing line between 
its perception of ``small'' and ``not small'' reductions, it does 
assert that the range of reductions it predicts from the RACMs analyzed 
in the October policy proposal are ``relatively small.'' These ranges 
are 2.03 to 29.7 tons per day of VOC and 3.56 to 17.07 tons per day for 
NOX. EPA has granted (or proposed to grant) emission 
reduction credit of comparable or even smaller magnitude for other 
measures that are included in these SIPs.
    Response: EPA has approved emission reduction credits of comparable 
or even smaller magnitude where New York has adopted certain measures 
and submitted them as part of SIP revisions, however, EPA has never 
said that those measures were required as RACM.
    Comment: The mandate that nonattainment area SIPs contain all RACM 
is set out as a separate and distinct requirement in the CAA from the 
requirement that SIPs provide for attainment of ozone standards as 
expeditiously as practicable. Congress intended that the RACM 
requirement serve objectives beyond merely attaining the NAAQS. Plans 
are also required by section 110(a)(1) of the CAA to maintain the 
NAAQS.
    Response: Areas, including the New York Metro Area, have met the 
ROP and RFP requirements and will have to show maintenance if they 
request redesignation. The SIP being approved today is designed to show 
attainment of the 1-hour ozone standard and the RACM requirement is 
keyed to expeditious attainment not ROP or maintenance.
    Comment: Failure to quantify reductions needed to reach attainment 
sooner: Even if advancement of the attainment date were a relevant test 
for RACM, EPA has failed to rationally justify its claim that 
additional control measures would not meet that test. To begin with, 
neither the Agency nor the states have quantified, in a manner 
consistent with EPA rules and guidance, the emission reductions that 
would be needed to attain the standard prior to achievement of emission 
reductions required under the NOX SIP Call. Nowhere is there 
an analysis that shows what it would take to attain in 2004, 2005, 2006 
or 2007. This comment generally repeats a comment provided on EPA's 
October 12, 2000 Notice of Availability proposing EPA's RACM action for 
the three areas of Atlanta, Washington DC and Springfield, MA.
    Response: First, note that while the commenter makes reference to 
the NOX SIP Call, on November 15, 1999, New York adopted 
Part 204, ``NOX Budget Trading Program,'' of New York's Code 
of Rules and Regulations (NYCRR) in order to strengthen its 1-hour 
Ozone Attainment Demonstration SIP and to comply with the 
NOX SIP Call. On May 22, 2001 (66 FR 28059) EPA approved New 
York's regulations to comply with the NOX SIP Call. It is 
important to note that New York is implementing its NOX SIP 
Call rules with full compliance by 2003, even though a decision by the 
DC Circuit Court allowed that full implementation could be rolled back 
to 2004. These NOX control measures in New York are thus 
being implemented on a more expeditious schedule and as expeditiously 
as is practicable.
    Further, it would be futile for New York to attempt to quantify the 
emission reductions that could be possible for the New York Metro Area 
to attain prior to the 2007 deadline. With all of the adopted control 
measures, and with the enforceable commitments to achieve the 
additional 85 tons/day of NOX emission reductions needed for 
attainment in the New York-Northern New Jersey-Long Island severe ozone 
nonattainment area, plus the necessary reliance upon Federal measures, 
including the amount of cleaner on-and off-road vehicles that will 
enter the fleet in years prior to 2007, there are simply no additional 
measures that EPA is aware of that are reasonably available or 
economically feasible that could be implemented, much less implemented 
in time, to achieve attainment in advance of when the measures are 
being implemented in this plan. Thus, EPA does not believe that any 
additional measures could advance the attainment date.
    Comment: Inadequate RACM analysis: The commenter states that EPA's 
RACM analysis is grossly inadequate in several key respects. This 
comment has several components which are summarized and addressed in 
(a) through (c) below.
    Comment (a): EPA's analysis fails to provide the technical basis 
and calculations by which it developed its emission reduction estimates 
for various measures. EPA failed to provide citations to the literature 
regarding estimates of emission reductions for various TCMs. EPA failed 
to specify the level of implementation assumed for some of the TCMs in 
the analysis. The proposal published for New York suffers from the same 
deficiency. EPA identifies no analysis of the emissions reductions 
benefits achievable from the eight evaluated measures, does not discuss 
any emissions reduction estimates in the proposal, and cites no 
technical support document for the proposal.
    Response (a): EPA's RACM analysis (found at www.epa.gov/ttn/rto) 
did provide the technical basis and calculations for its emission 
reduction estimates for control possible for the source categories in 
the emission inventory. The commenter apparently believes EPA's 
analysis is insufficient, however. The technical basis for the analyses 
and the assumptions used in the calculation of estimated emission 
reductions were derived from a review of the literature on the 
implementation and effectiveness of TCM's.\5\ The TCMs evaluated depend 
on the level of implementation. Implementation variables, representing 
levels of implementation effort, are implicit in the range of 
effectiveness for each category of TCM. EPA does not believe it is 
necessary, or even possible, to evaluate every explicit variation of 
TCMs in order to adequately determine if it is reasonably available. 
EPA believes that using the midpoint level of effectiveness represents 
a level of implementation effort that is not so high as to be 
economically infeasible, nor so low as to be ineffective. EPA reviewed 
all potential TCMs at a mid-level of implementation and concluded that 
together they would not advance the attainment date.
---------------------------------------------------------------------------

    \5\ Transportation Control Measures: State Implementation Plan 
Guidance, US EPA 1992; Transportation Control Measure Information 
Documents, US EPA 1992; Costs and Effectiveness of Transportation 
Control Measures: A Review and Analysis of the Literature, National 
Association of Regional Councils 1994.
---------------------------------------------------------------------------

    In reference to the RACM analysis performed by New York, EPA 
evaluated New York's technical basis and estimates of potential 
emission reduction benefits for controls possible for all of the source 
categories. Regarding the TCM category, we provided an additional 
technical evaluation when reviewing New York's analysis for 
approvability. In conclusion, we determined that at a reasonable level 
of implementation, all potential categories of TCMs taken

[[Page 5183]]

together would not be sufficient to advance the attainment date.
    Comment (b): EPA's analysis looks at only a small universe of 
potential measures, and does not evaluate all of the measures 
identified in public comment and other sources.
    Response (b): EPA's RACM analysis was intended to address all 
categories of stationary and mobile sources that could potentially 
provide additional emission reductions that might be considered RACM. 
The EPA believes that all identified measures were included in the 
categories addressed in the analysis, and EPA concluded on this basis 
that all measures together would not advance attainment.
    Comment (c): EPA's analysis also completely fails to consider the 
additional benefits likely from combined implementation of 
complementary TCMs e.g., parking management along with transit 
improvements. It is arbitrary and irrational for EPA to assume that 
these measures can and will be implemented in complete isolation from 
one another.
    Response (c): EPA recognizes that many control measures--
particularly TCMs--are more effective if done in conjunction with 
others. EPA maintains, however, that it would be impossible to analyze 
a seeming infinite set of combinations of measures for possible 
benefits. The EPA's analysis did look at all measures in various 
categories at a reasonable level of implementation and concluded that 
as a whole these categories of measures taken together would not 
advance attainment or would otherwise not be reasonably available.
    Comment: Transportation Control Measures as RACM: EPA gives 
virtually no consideration to the emission reduction benefits of 
transportation programs, projects and services contained in adopted 
regional transportation plans (RTPs), or that are clearly available for 
adoption as part of RTPs adopted for a nonattainment area. In addition, 
it is arbitrary and capricious for EPA not to require as RACM economic 
incentive measures that are generally available to reduce motor vehicle 
emissions in every nonattainment area.
    Response: EPA's notice of availability of the RACM analysis (65 FR 
61134, October 16, 2000) does consider transportation programs, 
projects and services that are generally adopted, or available for 
inclusion in a nonattainment area's regional transportation plan (RTP) 
and Transportation Improvement Program (TIP). The RACM analysis 
includes seven broad categories and twenty-seven subcategories of TCMs 
that represent a range of programs, projects and services that can be 
included in RTP's and TIP's. The inclusion of a TCM in an RTP or TIP 
does not necessarily mean that it meets EPA's criteria for RACM and 
must be included in the SIP.
    Some of these TCMs, such as parking cashout, transit subsidies, and 
parking pricing, are explicitly economic incentive programs. 
Furthermore, these categories of TCMs, as well as most of the others, 
could be infinitely differentiated according to criteria, such as the 
method of implementation, level of promotional effort or market 
penetration, stringency of enforcement, etc. The application of 
economic incentives to increase the effectiveness of a TCM is one such 
criterion. These implementation variables, representing levels of 
implementation effort, are implicit in the range of effectiveness for 
each category of TCM. EPA does not believe it is necessary, or even 
possible, to evaluate every explicit variation of TCMs in order to 
adequately determine if it is reasonably available. EPA believes that 
using the mid-level of effectiveness represents a level of 
implementation effort that is not so high as to be economically 
infeasible, nor so low as to be ineffective.
    Also, there are many important reasons why a state, regional, or 
local planning agency might implement TCMs in an integrated traffic 
management plan beyond whatever air quality benefits the TCMs might 
generate, including preserving open space, watershed protection, 
avoiding sprawl, mitigating congestion, toll collection efficiency, and 
``smart growth'' planning. So the fact that TCMs are being implemented 
in certain ozone nonattainment areas does not necessarily lead one to 
the conclusion that those TCMs represent mandatory RACM measures when 
they are analyzed primarily for the purpose of determining whether they 
would advance the ozone attainment date.
3. Point Source NOX Controls
    Comment: A commenter suggested energy efficiency improvements are 
not just for residential and commercial buildings and suggested savings 
could be achieved by more efficient motor and drive systems.
    Response: EPA agrees that improved energy efficiency is a desirable 
method of reducing air emissions. NYSDEC and the New York State Energy 
Research and Development Authority (NYSERDA), are pursuing energy 
efficiency programs for residential and commercial buildings, and for 
other sources, such as electric and hybrid vehicles, industrial source 
process improvements, high efficiency display lighting and motor 
control efficiency upgrades. NYSDEC has also set aside allowances in 6 
NYCRR Part 204 (NOX Budget Trading Program) for energy 
efficiency/renewable energy, to encourage such projects.
    Comment: Just as Integrated Resource Planning (IRP) for electric 
utilities resulted in demand side management programs that conserved 
electricity, IRP for natural gas utilities will have the same impact on 
conserving natural gas usage and resulting emissions. A number of 
states have effectively implemented IRP for natural gas.
    Response: EPA agrees that improved energy conservation--regardless 
of the form of energy--is a desirable method of reducing air emissions. 
Since such measures would likely have to rely on voluntary efforts, the 
State would have to estimate the effect on emission reductions that 
would result. Putting in place even a voluntary effort to conserve 
natural gas that could be quantified in terms of its emission reduction 
benefits would likely require a significant amount of time. EPA 
believes it is unlikely--given the time spent on the bulk of the SIP--
that the State would have had the time to develop such a quantifiable 
voluntary program that would have yielded enough NOX 
reductions to advance the attainment date. Furthermore, it appears 
unlikely that such a quantifiable program could be put into place in 
sufficient time to advance the attainment date given the resources that 
the State will have to spend over the next several years simply 
developing and adopting the emission controls to make up the 
NOX emission reduction shortfall. Therefore, EPA believes 
that this measure is not a reasonably available control measure at this 
time for the New York Metro Area.
    Comment: The NYSDEC should establish the same requirements for new 
and existing stationary diesel engines in the New York Metro Area that 
are not used exclusively during infrequent emergency or backup 
situations.
    Response: New York's 6 NYCRR 227-2 (Reasonably Available Control 
Technology for Oxides of Nitrogen), establishes RACT for all major 
sources of NOX, including stationary diesel engines and peak 
shaving units. NYSDEC is currently revising this regulation to apply 
stricter controls on existing and new engines. EPA will review these 
stricter controls after New York submits them to EPA as a SIP revision.

[[Page 5184]]

4. Mobile Source Control Measures
    Comment: A key presumptive RACM that New York has overlooked is 
diesel retrofits. Heavy-duty on-road and non-road diesel vehicles can 
be readily retrofit to reduce emissions of NOX. Retrofit 
technologies are proven to be cost-effective, can be implemented on a 
fairly short timeframe and can reduce NOX by as much as 90 
percent. The Carl Moyer program in California and EPA's own voluntary 
diesel retrofit program have achieved impressive and cost-effective 
NOX reductions. New York's failure to even consider or 
analyze the reasonableness of diesel retrofit measures is unlawful.
    A similar comment made stated that retrofit controls on 
construction equipment could produce emission reductions that amount to 
\2/3\ to \3/4\ of the 6.2 tons per day (tpd) VOC and 29 tpd 
NOX reductions associated with construction stoppages on 
ozone action days and day time work bans in the NYSDOT Conformity 
Measure Analysis.
    Another similar comment was made concerning control of construction 
equipment. The commenter pointed out that as stated in an ENVIRON 
report for the NYSDEC (Pollack, Tran and Lindhjem, 1999), more than 
half of all construction projects in Texas are completed to provide 
public infrastructure (i.e., road building, public works, etc.). Most 
of these federally and state-funded projects are managed by state 
agencies. Given this, the NYSDEC should incorporate an environmental 
standard into contract specifications for construction projects managed 
by state agencies.
    Response: Retrofit of heavy duty diesel vehicles is already an 
ongoing practice in the New York Metro Area, specifically with regard 
to the transit bus fleet of the Metropolitan Transportation Authority 
(MTA). To date, the MTA has retrofitted several hundred diesel buses 
with advanced catalyst particulate filter systems and has plans to 
retrofit the remainder of its fleet in the future. While MTA has found 
that its retrofit project is successful in reducing certain pollutants 
of concern such as particulate matter, the technology it is employing 
is not effective in reducing emissions of NOX. Although 
retrofit technology exists which can be effective in reducing 
NOX, it is not as cost effective or as demonstrated as other 
established diesel retrofit technologies. EPA agrees that while there 
is promise for this technology to be used effectively in the future, 
for example, as a measure which may be effective in helping the State 
meet the future 8-hour ozone standard, highway diesel retrofit 
technology to reduce NOX, because it is not cost effective, 
can be dismissed at this time as a potentially available RACM by the 
State.
    Regarding the 29 tpd NOX reduction cited in the above 
comment, the State's calculation was based on a program of increased 
purchase and phase-in of construction equipment/engines that are less 
polluting. All information with regard to feasibly available diesel 
retrofit equipment gathered by the State indicated no reductions in 
NOX and a maximum of 50 percent reduction in VOCs that could 
be associated with this potential measure. The NYSDOT Conformity 
Measure Analysis, in which this potential RACM was analyzed, did not 
assume complete participation for the entire New York Metro Area 
because of the inherent difficulties and uncertainties in voluntary 
compliance with a retrofit program which would make it infeasible on 
such a comprehensive basis. Even with the maximum potential VOC 
reduction associated with the technology as determined by the State, 
the estimated VOC reductions suggested in the above comment could not 
be approached without full participation of all private as well as 
publicly owned equipment, which as noted, New York did not consider 
reasonable. Additionally, the suggestion of incorporating an 
environmental standard into contract specifications for construction 
projects managed by state agencies would not increase the estimated 
benefits because New York already assumed retrofit of all equipment 
used in government projects in its analysis. Based on the State's 
analysis, EPA is in agreement with the State that retrofit of 
construction equipment can be rejected as a RACM because at a 
reasonable level of implementation it would not produce significant 
NOX reductions.
    Comment: Widespread implementation of time of day tolls would 
produce reduced air pollution emissions both by reducing vehicle miles 
of travel and reducing congestion delays for the remaining traffic. The 
SIP should include as a reasonably available transportation control 
measure value or congestion pricing and toll system automation. The 
toll authorities in the region have already demonstrated the potential 
for these measures by steps that include:
     Achieving more than 75 percent market penetration among 
regular commuters in the use of the electronic EZ-Pass transponder for 
non-stop toll collection on a number of major bridges, tunnels, and 
toll highways in the New York/New Jersey region.
     The full automation of truck tolls at Spring Valley on the 
New York Thruway,
     The successful introduction of time-of-day tolls on trans-
Hudson bridges and tunnels and the New Jersey Turnpike in 2000-2001, 
resulting in reduced peak period traffic
     The dedication of a significant portion of revenues from 
bridge and tunnel tolls to pay for enhancements to transit services and 
related travel options in the tolled corridors.
    The full automation of existing toll booths could provide further 
emission reductions. For congestion pricing to be most effective on 
major bridges and tunnels in the metro area the Port Authority and 
other facility operators should reinstate two-way tolling, which was 
abandoned in the past because toll booths were major congestion points. 
Now with EZ-pass this is no longer the case for the large majority of 
commuters who have the EZ-pass tags.
    In the wake of the September 11, 2001, tragedy and the subsequent 
traffic delays caused by increased security measures, New York City 
Mayor Giuliani ordered a ban on the entry of solo drivers of non-
commercial vehicles into Manhattan on bridges and tunnels south of 63rd 
Street during morning rush hours. This has led to a significant drop in 
traffic entering Manhattan. The Manhattan carpool rule has dramatically 
cut congestion and traffic entering Manhattan, cutting air pollution 
and proving popular with most city residents and workers. The SIP 
should consider continuation of this rule as a transportation control 
measure. The SIP should consider opportunities to relax the rule by 
allowing solo motorists entry to Manhattan on the affected bridges and 
tunnels if they pay a premium time-of-day toll which would generate 
revenue to pay for enhanced transit options.
    Response: Emission reduction estimates for congestion pricing, 
e.g., time of day tolls, reported in the State's RACM Analysis are 
necessarily based on existing sources of information (local or other 
area program results, studies, EPA documentation) which allow 
quantification of potential benefits. New York's analysis of congestion 
pricing as a potential RACM was based, in part, on the same information 
discussed by the commenter, i.e., a 7 percent reduction in traffic on 
Port Authority bridges and tunnels in the 6-9am commuter rush hours. 
The State's analysis included an extrapolation to assume a 7 percent 
reduction in total vehicle miles traveled (VMT) in the entire New York 
Metro Area. The potential NOX and VOC emission reduction 
estimated by the

[[Page 5185]]

State for this measure included an assumption used previously in other 
areas regarding the effects of shifting emissions out of one time 
period into another. Based on its analysis using available data and 
assumptions, the State concluded that potential emission reductions 
were not sufficient to advance the attainment date to 2006. EPA is in 
agreement with the State's methodology and consequent rejection of this 
measure as a RACM.
    The commenter suggests that full automation of existing tolls such 
as EZ-pass technology could provide further emission reductions. The 
commenter points out that substantial market penetration among regular 
commuters has already been achieved. While New York is currently 
working with other states to increase the use of EZ-pass throughout the 
northeast region, full automation cannot be reasonably achieved since a 
certain fraction of the motoring public will choose not to purchase EZ-
pass, and both New York and EPA conclude that 100 percent participation 
cannot be considered a reasonable or feasible goal for the program.
    Regarding the commenter's suggestion that the current ban on entry 
of solo drivers of non-commercial vehicles into Manhattan south of 63rd 
street should be continued as a RACM, which was put in place subsequent 
to the terrorist attacks of September 11, 2001, that ban was not in 
place and thus could not be considered at the time the State performed 
its RACM analysis in June 2001. Furthermore, the ban is a direct result 
of problems the City encountered and is attempting to avoid as a result 
of the attacks and their aftermath, which were and are not normal or 
reasonable occurrences; therefore the State could not have been 
expected to consider it a reasonably available measure at the time it 
conducted the RACM analysis. However, in rebuilding lower Manhattan 
after the disaster, EPA expects that state and other regional agencies 
will give consideration to mass transit and roadway modifications which 
will better accommodate new traffic and commuting patterns which will 
ultimately result in reduced emissions in the future. These 
modifications may become an integral part of the State's plan to meet 
the future 8-hour ozone standard.
    Comment: Two commenters suggested that 15 ppm sulfur gasoline and 
low sulfur diesel should be adopted in the New York Metro Area as a 
reasonably available control measure.
    Response: The CAA preempts states from establishing state fuels 
under section 211(c)(4)(A). Waivers from preemption are possible under 
section 211(c)(4)(C) if the state can show necessity for that fuel to 
meet the NAAQS, and if no other reasonable or practicable non-fuel 
measures exist that could be implemented in place of a state fuel. For 
a state to obtain a waiver of preemption, an acceptable demonstration 
must be submitted to EPA that can justify the need for a particular 
state fuel. This provision of the CAA was included to discourage the 
development of a patchwork of fuel requirements from state to state. 
When other states, such as Texas, have considered implementing fuel 
programs which control sulfur levels such as 15 ppm sulfur gasoline, 
they determined that excessive costs when compared with the emissions 
benefit, the difficulties in producing a boutique fuel, and anticipated 
distribution problems made such a measure unreasonable. Furthermore, 
state-adopted gasoline and diesel sulfur control programs would 
directly conflict with on-going efforts to comply with the federal low-
sulfur requirements for those fuels which will be implemented beginning 
in 2004 and 2006, respectively. When considering this measure, Texas 
only projected a 1.15 tpd of emission reduction from the institution of 
15 ppm sulfur gasoline at an estimated cost of over $500,000 per ton to 
consumers. Because of the general preemption in the CAA and the low 
projected cost effectiveness, EPA does not consider this fuel 
requirement to be a RACM for New York at this time.
    Comment: One commenter suggested that public and large commercial 
fleets be required to have low emitting vehicles.
    Response: New York, in exercising its option under section 177 of 
the CAA, adopted the first and second phases of the California Low 
Emission Vehicle (LEV) program which affects all new light duty 
vehicles, specifically passenger cars and light duty trucks under 6,000 
pounds gross vehicle weight rating for vehicle model years 1994 and 
later. Also as allowed under the CAA, New York chose to use a 
substitute measure to meet its clean fuel fleet requirements, and did 
so with the California LEV program. EPA approved New York's SIP 
revision using the LEV program as an opt out because it demonstrated 
that it would assure reductions of ozone-forming and air toxics 
emissions that are at least equivalent to those that would be realized 
from the federal clean fuel fleet program. Moreover, a clean vehicle 
program limited to large fleets would affect a much smaller subset of 
vehicles than the LEV program currently applicable in New York. New 
York's LEV program, which is already accounted for in its ozone SIP, is 
a statewide program affecting the sale of all light duty vehicles. New 
York's implementation of its LEV program and inclusion in the SIP 
precludes it from consideration of the suggested commercial LEV program 
as RACM.
    Comment: One commenter suggested New York institute an auto license 
fee tied to actual vehicle NOX emission rates.
    Response: EPA is not aware of any area where this type of measure 
has been instituted or even thoroughly considered. This brings to mind 
a host of legal and implementation issues. Moreover, it is not clear 
how much emission reductions could be achieved and at what fee levels. 
Furthermore, there is a lack of information on the localized costs and 
benefits of this program. Consequently, EPA believes that this cannot 
be considered a RACM for New York.
    Comment: One commenter suggested the following measures to achieve 
additional emission reductions from aircraft operations: (1) Mandatory 
Powering of Jets at gates with Electric Power (2) Reduced Idling on the 
runway (3) Congestion Pricing at Rush Hours at Airports.
    Response: The Port Authority of New York/New Jersey is the 
jurisdictional agency and landlord for the New York City metropolitan 
airports. The State of New York alone does not have the authority to 
require airport gates to supply electricity to aircraft for powering. 
Therefore, while this measure has promise in the future as a potential 
important source of emissions reductions, the State can not consider 
gate electrification or other airport modifications which are under the 
control of the airport landlord agency as RACM available to it. 
Similarly, although planning of airline operations during rush hours to 
reduce idling on runways to reduce emissions may have merit, New York 
does not have the authority to impose regulations on airlines to 
require this planning. The Federal Aviation Administration has 
jurisdiction over airline operations once the aircraft leaves the gate 
and State regulation is pre-empted. Additionally, since the State has 
no authority to control airline operations, and congestion is a 
function of the higher level of operations during rush hours, 
congestion pricing is likely to place an unnecessary economic burden on 
the traveling public with no air quality benefits. State controls on 
pricing are expressly preempted by the Air Deregulation Act. Therefore, 
EPA

[[Page 5186]]

concludes that such measures are not reasonably available.
    Comment: A number of specific TCMs and economic incentive programs 
to reduce VMT were identified by various commenters. These include: 
telecommuting, satellite offices, college/university traffic control 
measures, bike and walk pathways, increased government use of the web, 
voluntary no drive days, trip reduction ordinances, employer based 
transportation management, road pricing, ride share incentives, 
insurance pricing, commuter choice, parking cashout, taxes on paid 
parking, congestion pricing, incentives for transit oriented 
development and improved incident response.
    Response: EPA does not believe it is necessary, or even practically 
possible, to evaluate every level of implementation of TCMs in order to 
adequately determine if they are reasonably available. EPA notes that 
the TCM measures listed above are either being encouraged or a similar 
measure is being implemented in the New York Metro Area as part of the 
commuter choice program such as telecommuting, ride share incentives, 
and employer based transportation management. New York has identified 
emission reductions from TCMs, however, New York determined that it is 
not feasible for these measures to advance the attainment date in the 
New York Metro Area. EPA agrees that the small amount of additional 
reductions that could reasonably be achieved would not advance 
attainment. Therefore, EPA agrees with New York's conclusion that such 
measures are not required as RACM.
    Comment: The 2022 Metropolitan Transportation Plan and TIP devote 
an increasing share of scarce funds over time to projects that 
exacerbate sprawl, traffic, and pollution growth, while shortchanging 
projects to improve air quality and expand travel choices. Reallocating 
MTP/TIP funds could allow the region to meet CAA requirements for 
timely attainment of air quality while improving mobility for the 
citizens of the region.
    Response: It is unclear whether or not the commenter is referring 
to a transportation plan in the New York area; the long range regional 
transportation plan (RTP) of the New York Metropolitan Transportation 
Council (NYMTC), which is the New York portion of the New York City 
region's federally designated metropolitan planning organization (MPO), 
terminates with the year 2020, not 2022 and it is referred to as 
``Mobility for the Millennium,'' not the ``Metropolitan Transportation 
Plan.'' Only NYMTC, which is comprised of several government agencies 
and transportation providers in the region, has the authority and 
responsibility to allocate or reallocate funds for projects in its 
transportation plans; the State does not have this authority. As it 
works to conform its transportation improvement program with the 
State's SIP, NYMTC has and will continue to give high priority to those 
projects which are air quality-beneficial. However, at the least 
because it lacks the authority to do so, EPA believes this suggested 
measure should not be considered a RACM available to the State for the 
purpose of advancing the attainment date.

D. Approval of Attainment Demonstrations That Rely on State Commitments 
or State Rules for Emission Limitations to Lower Emissions in the 
Future Not Yet Adopted by a State and/or Approved by EPA

    Comment: Several commenters disagreed with EPA's proposal to 
approve states' attainment and rate of progress demonstrations because 
not all of the emissions reductions assumed in the demonstrations (a) 
have actually taken place, (b) are reflected in rules yet to be adopted 
and approved by a state and approved by EPA as part of the SIP, (c) are 
credited illegally as part of a demonstration because they are not 
approved by EPA as part of the SIP. Also a commenter maintains that EPA 
does not have authority to accept enforceable state commitments to 
adopt measures in the future in lieu of current adopted measures to 
fill a near-term shortfall of reductions. The commenter indicated that 
New York submitted an enforceable commitment on April 18, 2000 to 
participate in the OTC process and to adopt measures by October 31, 
2001. Although New York did participate in the OTC process, the 
deadline for choosing and adopting shortfall measures has come and 
gone. So far, New York has not submitted anything to EPA which states 
which control measures New York plans to use to address the shortfall. 
Nor has New York adopted measures to address the required emission 
shortfall reductions.
    With respect to the commitments from New York for the New York 
Metro Area, the commenters contend that the 85 tons per day VOC and 7 
tons per day of NOX gap must be closed now. Deferred 
adoption and submittal are not consistent with the statutory mandates 
and are not consistent with the CAA's demand that all SIPs contain 
enforceable measures. EPA does not have authority to approve a SIP if 
part of the SIP is not adequate to meet all tests for approval. 
Although the submittal consists in part of commitments, New York has 
not yet actually adopted rules implementing final control strategies, 
and the plan includes insufficient reduction strategies to meet the 
emission reduction goals established by New York. Thus, New York has 
failed to adopt a SIP with sufficient adopted and enforceable measures 
to achieve attainment. For these reasons, the commenter points out the 
submittal also does not meet the definition of a ``full attainment 
demonstration SIP,'' in a current consent decree EPA entered into in 
NRDC v. Browner, cir. 99-2976 (D.Ct. D.C.), which obligates EPA to 
propose a federal implementation plan by November 30, 2001 if EPA has 
not fully approved the New York 1-hour Ozone Attainment Demonstration 
SIP by that date.\6\ The commenter believes that for these reasons, EPA 
should reject the New York 1-hour Ozone Attainment Demonstration SIP 
and impose sanctions on the area and publish a proposed FIP no later 
than October 15, 2001.
---------------------------------------------------------------------------

    \6\ Since this comment was submitted, the court granted an 
extension from November 30, 2001 to January 15, 2002.
---------------------------------------------------------------------------

    Response: EPA disagrees with the comments, and believes, consistent 
with past practice, that the CAA allows full approval of enforceable 
commitments that are limited in scope where circumstances exist that 
warrant the use of such commitments in place of adopted measures.\7\ 
Once EPA determines that circumstances warrant consideration of an 
enforceable commitment, EPA believes that three factors should be 
considered in determining whether to approve the enforceable 
commitment: (1) Whether the commitment addresses a limited portion of 
the statutorily-required program; (2) whether the state is capable of 
fulfilling its commitment; and (3)

[[Page 5187]]

whether the commitment is for a reasonable and appropriate period of 
time.
---------------------------------------------------------------------------

    \7\ These commitments are enforceable by the EPA and citizens 
under, respectively, sections 113 and 304 of the CAA. In the past, 
EPA has approved enforceable commitments and courts have enforced 
these actions against states that failed to comply with those 
commitments. See, e.g., American Lung Ass'n of N.J. v. Kean, 670 F. 
Supp.1285 (D.N.J. 1987), aff'd, 871 F.2d 319 (3rd Cir. 1989); NRDC 
v. N.Y. State Dept. of Envs. Cons., 668 F. Supp. 848 (S.D.N.Y.1987); 
Citizens for a Better Env't v. Deukmejian, 731 F. Supp. 1448, recon. 
granted in part, 746 F. Supp. 976 (N.D. Cal. 1990); Coalition for 
Clean Air v. South Coast Air Quality Mgt. Dist., No. CV 97--6916 
HLH, (C.D. Cal. Aug. 27, 1999). Further, if a state fails to meet 
its commitments, EPA could make a finding of failure to implement 
the SIP under section 179(a) of the CAA, which starts an 18-month 
period for the state to begin implementation before mandatory 
sanctions are imposed.
---------------------------------------------------------------------------

    It is also noted that while New York does rely on commitments to 
adopt additional measures as requested by EPA to insure demonstrating 
attainment, it does not rely on commitments to demonstrate RFP (see 66 
FR 42479, August 13, 2001). New York's RFP plans, discussed above, 
demonstrate RFP with VOC and NOX emission reductions 
achieved within the nonattainment area by the implementation of fully 
promulgated Federal and fully adopted SIP-approved State measures.
    As an initial matter, EPA believes that present circumstances for 
the New York City, Philadelphia, Baltimore and Houston nonattainment 
areas warrant the consideration of enforceable commitments. The 
Northeast States that make up the New York, Baltimore, and Philadelphia 
nonattainment areas submitted SIPs that they reasonably believed 
demonstrated attainment with fully adopted measures. After EPA's 
initial review of the plans, EPA recommended to these areas that 
additional controls would be necessary to ensure attainment. Because 
these areas had already submitted plans with many fully adopted rules 
and the adoption of additional rules would take some time, EPA believed 
it was appropriate to allow these areas to supplement their plans with 
enforceable commitments to adopt and submit control measures to achieve 
the additional necessary reductions. For New York's attainment 
demonstration for the New York Metro Area, EPA has determined that the 
submission of enforceable commitments in place of adopted control 
measures for these limited sets of reductions will not interfere with 
the area's ability to meet the 2007 attainment obligations.
    EPA's approach here of considering enforceable commitments that are 
limited in scope is not new. EPA has historically recognized that under 
certain circumstances, issuing full approval may be appropriate for a 
submission that consists, in part, of an enforceable commitment. See 
e.g., 62 FR 1150, 1187, Jan. 8, 1997 (ozone attainment demonstration 
for the South Coast Air Basin; 65 FR 18903, Apr. 10, 2000 (revisions to 
attainment demonstration for the South Coast Air Basin); 63 FR 41326, 
Aug. 3, 1998 (federal implementation plan for PM-10 for Phoenix); 48 FR 
51472 (State implementation plan for New Jersey). Nothing in the CAA 
speaks directly to the approvability of enforceable commitments.\8\ 
However, EPA believes that its interpretation is consistent with 
provisions of the CAA. For example, section 110(a)(2)(A) provides that 
each SIP ``shall include enforceable emission limitations and other 
control measures, means or techniques * * * as well as schedules and 
timetables for compliance, as may be necessary or appropriate to met 
the applicable requirement of the CAA.'' (Emphasis added). Section 
172(c)(6) of the CAA requires, as a rule generally applicable to 
nonattainment SIPs, that the SIP ``include enforceable emission 
limitations and such other control measures, means or techniques * * * 
as may be necessary or appropriate to provide for attainment * * * by 
the applicable attainment date* * *'' (Emphasis added). The emphasized 
terms mean that enforceable emission limitations and other control 
measures do not necessarily need to generate reductions in the full 
amount needed to reach attainment. Rather, the emissions limitations 
and other control measures may be supplemented with other SIP rules--
for example, the enforceable commitments EPA is approving today--as 
long as the entire package of measures and rules provides for 
attainment.
---------------------------------------------------------------------------

    \8\ Section 110(k)(4) provides for ``conditional approval'' of 
commitments that need not be enforceable. Under that section, a 
state may commit to ``adopt specific enforceable measures'' within 
one-year of the conditional approval. Rather than enforcing such 
commitments against the state, the CAA provides that the conditional 
approval will convert to a disapproval if ``the state fails to 
comply with such commitment.''
---------------------------------------------------------------------------

    As provided, after concluding that the circumstances warrant 
consideration of an enforceable commitment--as they do for the New York 
Metro Area--EPA would consider three factors in determining whether to 
approve the submitted commitments. First, EPA believes that the 
commitments must be limited in scope. In 1994, in considering EPA's 
authority under section 110(k)(4) to conditionally approve 
unenforceable commitments, the Court of Appeals for the District of 
Columbia Circuit struck down an EPA policy that would allow states to 
submit (under limited circumstances) commitments for entire programs. 
Natural Resources Defense Council v. EPA, 22 F.3d 1125 (D.C. Cir. 
1994). EPA does not believe that case is directly applicable here, 
because the commitments made here are limited. EPA agrees with the 
Court that other provisions in the CAA contemplate that a SIP 
submission will consist of more than a mere commitment. See NRDC, 22 
F.3d at 1134.
    In the present circumstances, the commitments address only a small 
portion of the attainment plan. For the New York Metro Area, the 
commitment addresses only 9.1 percent and 0.8 percent of the total VOC 
and NOX emissions reductions , respectively, necessary to 
attain the standard. A summary of the adopted control measures and 
other components credited in New York's attainment demonstration 
submission are discussed in section II of this document. These adopted 
and implemented control measures are the majority of the total 
emissions reductions needed to demonstrate attainment.
    As to the second factor, whether the State is capable of fulfilling 
the commitment, EPA considered the current or potential availability of 
measures capable of achieving the additional level of reductions 
represented by the commitment. For the New York, Philadelphia and 
Baltimore nonattainment areas, EPA believes that there are sufficient 
untapped sources of emission reductions that could achieve the minimal 
levels of additional reductions that the areas need. This is supported 
by the recent recommendation of the OTC regarding specific controls 
that could be adopted to achieve the level of reductions needed for 
each of these three nonattainment areas. Thus, EPA believes that the 
states will be able to find sources of reductions to meet the 
shortfall. The States that comprise the New York, Philadelphia and 
Baltimore nonattainment areas are making significant progress toward 
adopting the measures to fill the shortfall. The OTC has met and on 
March 29, 2001 recommended a set of control measures. Currently, the 
states are working through their adoption processes with respect to 
those, and in some cases other, control measures.
    The third factor, EPA has considered in determining to approve 
limited commitments for the New York attainment demonstration is 
whether the commitment is for a reasonable and appropriate time period. 
EPA recognizes that both the CAA and EPA have historically emphasized 
the need for submission of adopted control measures in order to ensure 
expeditious implementation and achievement of required emissions 
reductions. Thus, to the extent that other factors, such as the need to 
consider innovative control strategies or the need to work as part of a 
multi-state effort, support the consideration of an enforceable 
commitment in place of adopted control measures, the commitment should 
provide for the adoption of the

[[Page 5188]]

necessary control measures on an expeditious, yet practicable, 
schedule.
    As provided above, for New York, Baltimore and Philadelphia, EPA 
proposed that these areas have time to work within the framework of the 
OTC to develop, if appropriate, a regional control strategy to achieve 
the necessary reductions and then to adopt the controls on a state-by-
state basis. In the proposed approval of the attainment demonstrations, 
EPA proposed that these areas would have approximately 22 months to 
complete the OTC and state-adoption processes.
    As a starting point in suggesting this time frame for submission of 
the adopted controls, EPA first considered the CAA ``SIP Call'' 
provision of the CAA--section 110(k)(5)--which provides states with up 
to 18 months to submit a SIP after EPA requests a SIP revision. While 
EPA may have ended its inquiry there, and provided for the states to 
submit the measures within 18 months of it's proposed approval of the 
attainment demonstrations, EPA further considered that these areas were 
all located with the Northeast Ozone Transport Region (OTR) and 
determined that it was appropriate to provide these areas with 
additional time to work through the OTR process to determine if 
regional controls would be appropriate for addressing the shortfall. 
See e.g., 64 FR 70364. EPA believed that allowing these states until 
2001 to adopt these additional measures would not undercut their 
attainment dates of November 2005 or 2007.
    EPA still believes that New York, consistent with the memoranda of 
understanding signed by Carl Johnson, Deputy Commissioner, NYSDEC, will 
propose, adopt and implement the identified control measures. The 
actual OTC regulation development process took longer than EPA 
anticipated--15 months of the 22 months that EPA had thought the 
complete effort (i.e., OTC process and state adoption) should take. 
This left the states in the OTC seven months to complete the individual 
state regulatory adoption process. Although, as described below, New 
York did not make its submission by the October 31, 2001 deadline, EPA 
believes that the State is sufficiently on track and that the SIP 
should not be disapproved at this time. Moreover, if EPA or citizens 
are concerned about the delay in adoption of the measures, EPA and 
citizens have the ability to take action under CAA (e.g. sections 
179(a) and (b) and 304) to ensure New York completes the adoption 
process.
    New York is well underway with the regulatory development process 
for all six of the OTC model rules, which include consumer products and 
architectural and industrial coatings rules, a mobile equipment 
refinishing rule, solvent cleaning rule, controls on portable fuel 
containers as well as the NOX model rule (NOX 
reductions from sources that are not included in the 1994 OTC 
NOX Memorandum of Understanding for regional NOX 
reductions or covered by EPA's NOX SIP Call). EPA believes 
that New York is making sufficient progress to support approval of the 
commitment, because New York will adopt and implement the additional 
measures well within a time period fully consistent with the New York 
Metro Area attaining the standard by November 15, 2007. In a letter 
dated December 31, 2001, New York provided additional information on 
their progress in addressing the shortfall in emission reductions.
    The enforceable commitments submitted by New York for the New York 
Metro Area, in conjunction with the other SIP measures and other 
sources of emissions reductions, constitute the required demonstration 
of attainment and the commitments will not interfere with the area's 
ability to make reasonable progress under section 182(c)(2)(B) and (d). 
EPA believes that the delay in submittal of the final rules is 
permissible under section 110(k)(3) because New York has obligated 
itself to submit the rules by specified short-term dates, the states 
commitment is enforceable by EPA and the public. Moreover, as discussed 
in the December 16, 1999 proposal, its Technical Support Document 
(TSD), and section II of this document, the SIP submittal approved 
today contains major substantive components submitted as adopted 
regulations and enforceable orders.
    EPA believes that the New York SIP meets the NRDC Consent Decree 
definition of a ``full attainment demonstration.'' The consent decree 
defines a ``full attainment demonstration'' as a demonstration 
according to CAA section 182(c)(2). As a whole, the attainment 
demonstration--consisting of photochemical grid modeling, adopted 
control measures, an enforceable commitment with respect to a limited 
portion of the reductions necessary to attain, and other analyses and 
documentation--is approvable since it ``provides for attainment of the 
ozone [NAAQS] by the applicable attainment date.'' See section 
182(c)(2)(A).
    Comment: One commenter raises concerns regarding the enforceability 
of New York's commitment to adopt and submit the additional control 
measures to achieve additional emission reductions necessary for 
attainment. Specifically, the commenter is concerned that the lack of 
specific identified measures and specific identified emission 
reductions associated with those measures undercuts their 
enforceability. The commenter suggests that the commitments made by New 
York are more ``discretionary'' than the types of commitments that 
courts have enforced in the past because these State's commitments do 
not identify specific measures.
    Response: EPA believes that the CAA provides for enforcement of the 
terms of an approved SIP. See e.g., CAA 304(a)(1) and (f). Thus, in a 
case where a state commits to adopt a specific control strategy that 
will achieve a specific level of reductions by a specific date, the 
Court may require the State to take action to adopt that measure and 
achieve the prescribed level of reductions. In the case, such as here, 
where the State commits to adopt and submit by a specific date measures 
to achieve a certain level of emission reductions, the Court may order 
the State to adopt measures to achieve that level of reductions. Simply 
because the State retains authority regarding the precise mix of 
controls that it may adopt, does not interfere with the enforceability 
of the commitment to achieve the level of reductions necessary for 
attainment. EPA has determined that there are sufficient available 
controls to achieve the level of reduction to which the State has 
committed. This determination is supported by the recommendation of the 
OTC regarding specific controls. Thus, EPA believes that the commitment 
submitted by New York is enforceable by EPA and citizens and that a 
court could order the State to adopt control measures that will achieve 
the level of reductions necessary for attainment.
    Comment: One commenter suggested several changes to the enforceable 
commitments in the New York 1-hour Ozone Attainment Demonstration SIP. 
In particular, the commenter believes that because the various 
commitments are scattered throughout the State's submission, it is 
difficult to assess what the State is required to do. In addition, the 
commenter suggests that the State adopt additional specific language as 
part of its commitments.
    Response: EPA has identified in section II. F. in this notice the 
specific commitments made by New York that are being approved in this 
rulemaking. This should eliminate confusion regarding the enforceable 
commitments being relied upon for approval of the attainment 
demonstration. The specific

[[Page 5189]]

language changes proposed by the commenters are not necessary for 
approvable enforceable commitments. EPA believes the current submission 
complies with the requirements of sections 110, 172 and 182 of the CAA 
and that such commitments are enforceable by EPA and citizens under CAA 
sections 113, 304 and 179(a).
    Comment: EPA must reject any efforts to relax effective control 
measures on the books before New York eliminates the identified 
shortfall in emission reductions.
    Response: Section 110(l) of the CAA governs EPA's review of a SIP 
revision from a state that wishes to make changes to its approved SIP. 
This section provides that EPA may not approve a SIP revision if it 
will interfere with any applicable requirement concerning attainment 
and reasonable further progress or any other applicable requirement of 
the CAA. Therefore, if we receive an attainment demonstration SIP 
revision from New York that contains relaxed control measures or the 
replacement of existing control measures, we would consider the revised 
plan's prospects for meeting the current attainment requirements and 
other applicable requirements of the CAA. If we receive a SIP revision 
that meets our completeness criteria, we will review it against the 
statutory requirements of section 110(l). Further, the CAA requires us 
to publish a notice and to provide for public comment on our proposed 
decision. EPA believes that it is in the context of that future 
rulemaking, not EPA's current approval, that the commenter's concern 
regarding the appropriateness of any replacement measures adopted by 
the State should be considered.
    Comment: The mid-course review process outlined by New York is not 
a permissible substitute for a currently complete attainment 
demonstration or adopted enforceable control measures. The mid-course 
review will delay final approval of the SIP until 2004, 10 years after 
the SIP was required under the CAA.
    Response: The mid-course review is not intended as a replacement 
for a complete attainment demonstration or as a replacement for adopted 
control measures. Rather, it is intended to reflect the reality that 
the modeling techniques and inputs are uncertain. Thus, the progress of 
implementing the plan should be evaluated so that adjustments can be 
made to ensure the plan is successful. EPA is fully approving the 
attainment demonstration because, based on the information currently 
available, EPA believes that it will provide for attainment. However, 
the mid-course review allows the State and EPA an opportunity to 
consider additional information closer to the attainment date to assess 
whether adjustments are necessary. In the case of New York, the State 
has extensive plans to fully evaluate the inputs to the model and the 
modeling itself using the most up to date information possible. We are 
fully supportive of this continued evaluation of the science supporting 
the plan to reach attainment.

E. Adequacy of Motor Vehicle Emissions Budgets

    Comment: The commenters raised several questions concerning the 
Motor Vehicle Emissions Budgets (the budgets) established in the New 
York 1-hour Ozone Attainment Demonstration SIP. The commenters stated 
that the budgets submitted in the SIP should not be called adequate or 
be approved by the EPA because the attainment demonstration SIP does 
not provide for attainment. One commenter specifically pointed to the 
need for adopted and enforceable control measures.
    Response: EPA's adequacy process for the 2007 motor vehicle 
emissions budgets in New York's 1-hour Ozone Attainment Demonstration 
SIP has been completed, and we have found the motor vehicle emissions 
budgets to be adequate. We have already responded to any comments 
related to adequacy of the budgets that we are approving in this 
action, when we issued our adequacy findings. Therefore, we are not 
responding to comments on the adequacy of the budgets here. Our finding 
of adequacy and responses to comments can be accessed at www.epa.gov/otaq/traq (once there, click on the ``conformity'' button). At the web 
site, EPA regional contacts are identified.
    The emission budgets for New York for the year of 2007 are 161 tpd 
and 221 tpd for VOC and NOX, respectively. The 2007 budgets 
associated with New York's 1-hour Ozone Attainment Demonstration SIP 
are being approved by the EPA only until revised budgets pursuant to 
the State's commitments relating to MOBILE6 and shortfall measures are 
submitted and we have found the revised budgets adequate for 
transportation conformity purposes. Approval of the attainment budgets 
is based on the current control measures specified in the SIP and the 
enforceable commitments made for additional controls which will be 
implemented in the interim period.
    Because enforceable commitments to adopt additional measures are 
included in the SIP, EPA believes that it can approve the budgets. We 
believe that the budgets can be approved because the budgets will not 
interfere with the area's ability to adopt additional measures to 
attain the ozone standard and they are consistent with New York's 1-
hour Ozone Attainment Demonstration SIP. While the area is adopting its 
additional measures, the SIP's budgets will cap motor vehicle emissions 
and thereby ensure that the amount of additional reductions necessary 
to demonstrate attainment will not increase. The budgets are consistent 
with, and clearly related to, the emissions inventory and the control 
measures and are consistent with attainment.
    EPA disagrees that the SIP does not provide for attainment. For 
further explanation of how this attainment demonstration SIP as an 
overall plan provides for attainment please see other responses 
directly relating to the sufficiency of the overall attainment plan, 
control strategy, enforceable commitments, etc. contained in this final 
action.
    Comment: We received a number of comments about the process and 
substance of EPA's review of the adequacy of motor vehicle emissions 
budgets for transportation conformity purposes.
    Response: EPA's adequacy process for these SIPs has been completed, 
and we have found the motor vehicle emissions budgets in all of these 
SIPs to be adequate. We have already responded to any comments related 
to adequacy of the budgets that we are approving in this action when we 
issued our adequacy findings and continue to maintain the finding and 
the reasoning behind those findings. Therefore, we are not listing the 
individual comments or responding to them here. All of our findings of 
adequacy and responses to comments can be accessed at www.epa.gov/otaq/traq (once there, click on the ``conformity'' button). At the web site, 
EPA regional contacts are identified.
    On August 13, 2001 (66 FR 42479), we proposed to approve the 
transportation conformity budgets for the New York Metro Area. See 
Table 2. In this final rule we are approving these budgets.

F. Attainment Demonstration and Rate of Progress Motor Vehicle 
Emissions Inventories

    Comment: Several commenters stated that the motor vehicle emissions 
inventory is not current, particularly with respect to the fleet mix. 
Commenters stated that the fleet mix does not accurately reflect the 
growing proportion of sport utility vehicles and gasoline trucks, which 
pollute more than conventional cars. Also, a

[[Page 5190]]

commenter stated that EPA and states have not followed a consistent 
practice in updating SIP modeling to account for changes in vehicle 
fleets. For these reasons, commenters recommend disapproving the SIPs.
    Response: The commenter claims that there is a growing proportion 
of sport utility vehicles in the New York Metro Area by citing an 
increase of sport utility vehicles in the Washington DC metropolitan 
area. The New York Metro Area is not Washington DC nor has the 
commenter provided any specific evidence that there is a significant 
increase of sport utility vehicles in the New York Metro Area. However, 
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. New York used 
1990 vehicle registration data for 2002, and 2005 modeling and 
inventory purposes, however, the vehicle mix which was formerly based 
on 1990 data was updated to 1996 data when New York revised the 2007 
budgets in April 2000. These were updated to be consistent with New 
York's revised 1-hour Ozone Attainment Demonstration SIP. 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. New York has committed to submit such a SIP revision 
within one year after MOBILE6 is issued.
    Comment: The New York SIP understates the real speed of traffic on 
Interstate Roads, Freeways, and Expressways, thereby underestimating 
related emissions.
    Response: The commenter has only made an assertion that the real 
speed of traffic on Interstate Roads, Freeways, and Expressways exceed 
those contained in the New York SIP, without providing any specific 
data to support that assertion. However, the estimates of vehicle 
speeds on the various roadway types the State used in the SIP revision 
on which we are taking final action were based on standard professional 
practices and the most accurate information available at the time the 
SIP was submitted. Estimation of vehicle speeds is a complex process. 
The State estimated vehicle speeds based on a methodology it detailed 
in a New York State Department of Transportation document, ``Speed 
Estimates for Use in1994 Air Quality State Implementation Plan'', dated 
October 24, 1994. The State determined speeds for each time period 
through a number of successive steps. Generally, that methodology 
involves collection of speed data for a base and a future year from the 
New York Metropolitan Transportation Council, which provides 24 hour 
average speeds for three functional class groups for the New York City 
metropolitan area. Speeds for intermediate years are linearly 
interpolated between the base and future years by the State. The 
relationship between speed and the volume-capacity ratio (vcr) for 
different functional classes were relied on and identified by the State 
from the Highway-Capacity Manual (HCM) and other sources. Final speeds 
are based on adjustments of preliminary speeds to reflect differences 
between MPO travel demand model and HCM based off-peak speed data. In 
the New York City metropolitan area, the 24 hour average speeds in each 
county were available to the State for three functional classes. To 
estimate speeds by the required 6 functional classes, the distribution 
of VMT between functional classes were obtained from highway 
performance monitoring system (HPMS) data. A speed difference between 
the two functional classes represented in each functional class group 
was assumed by the State: the average speed in the lower functional 
class was assumed to be 95 percent of the average speed in the higher 
functional class. To calculate the 24 hour average speeds from the HCM, 
a selected VMT is divided by the total travel time for that VMT for all 
time periods, in both functional classes included in a functional class 
group. For more detail on this methodology, the reader is referred to 
the above referenced document. Regarding the commenter's assertion that 
speeds used by the State were understated and may not be reflective of 
actual speeds reached on area roadways, it should be stressed that the 
modeling requires the use of vehicle speeds averaged over an hour, as 
opposed to instantaneous or cruise speeds. EPA defines speed, for 
modeling purposes, to include all operation of vehicles, including 
intersections and other obstacles to travel, which may result in 
stopping and idling. Thus, while stop and go traffic may at times reach 
speeds above those used by the State in its modeling, the slower speeds 
must also be accounted for in the hourly average.
    Additionally, while EPA requires the most recent available 
estimates to be used, we do not require it to be updated on a specific 
schedule. As with vehicle registration data, we expect that the 
revision to New York's SIP that will be submitted using MOBILE6 will 
update vehicle speed estimates as appropriate for use with MOBILE6.

G. VOC Emission Reductions

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

[[Page 5191]]

not VOCs (http://www.epa.gov/ozone/title6/snap/).

H. Credit for Measures Not Fully Implemented

    Comment: States should not be given credit for measures that are 
not fully implemented. For example, the states are being given full 
credit for Federal coating, refinishing and consumer product rules that 
have been delayed or weakened.
    Response: Architectural and Industrial Maintenance (AIM) Coatings: 
On March 22, 1995 EPA issued a memorandum \9\ that provided that states 
could claim a 20 percent reduction in VOC emissions from the AIM 
coatings category in ROP, RFP and attainment plans based on the 
anticipated promulgation of a national AIM coatings rule. In developing 
the attainment and RFP SIPs for their nonattainment areas, states 
relied on this memorandum to estimate emission reductions from the 
anticipated national AIM rule. EPA promulgated the final AIM rule in 
September 1998, codified at 40 CFR part 59, subpart D. In the preamble 
to EPA's final AIM coatings regulation, EPA estimated that the 
regulation will result in 20 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 RFP 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 emission reduction in their SIPs. Autobody Refinish Coatings 
Rule: Consistent with a November 27, 1994 EPA policy,\10\ many states 
claimed a 37 percent reduction from this source category based on a 
proposed rule. However, EPA's final rule, ``National Volatile Organic 
Compound Emission Standards for Automobile Refinish Coatings,'' 
published on September 11, 1998 (63 FR 48806), did not regulate lacquer 
topcoats and will result in a smaller emission reduction of around 33 
percent overall nationwide.
---------------------------------------------------------------------------

    \9\ ``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.
    \10\ ``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 29, 1994, 
John S. Seitz, Director OAQPS, to Air Division Directors, Regions I-
X.
---------------------------------------------------------------------------

    The 37 percent emission reduction from EPA's proposed rule was an 
estimate of the total nationwide emission reduction. Since this number 
is an overall national average, the actual reduction achieved in any 
particular area could vary depending on the level of control which 
already existed in the area. For example, in California the reduction 
from the national rule is zero because California's rules are more 
stringent than the national rule. In the proposed rule, the estimated 
percentage reduction for areas that were unregulated before the 
national rule was about 40 percent. However as a result of the lacquer 
topcoat exemption added between proposal and final rule, the 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 
reductions assumed by states, following EPA guidance based on the 
proposal, and the 36 percent 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.
    Consumer Products Rule: Consistent with a June 22, 1995 EPA 
guidance,\11\ states claimed a 20 percent 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 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 was appropriate for the states to take credit for a 20 percent 
emission reduction for the consumer products rule in their SIPs.
---------------------------------------------------------------------------

    \11\ ``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.
---------------------------------------------------------------------------

I. Enforcement of Control Programs

    Comment: The attainment demonstrations do not clearly set out 
programs for enforcement of the various control strategies relied on 
for emission reduction credit.
    Response: 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 re-adopt 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 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 depends on specific state emission control regulations, 
these individual regulations have undergone review by the EPA in past 
approval actions.

J. MOBILE6 and Motor Vehicle Emissions Budgets

    Comment: One commenter generally supports a policy of requiring 
motor vehicle emissions budgets to be recalculated when revised MOBILE6 
models are released.
    Response: The attainment demonstrations that rely on Tier 2 
emission reduction credit contain commitments to revise the motor

[[Page 5192]]

vehicle emissions budgets after MOBILE6 is issued.
    Comment: The revised budgets calculated using MOBILE6 will likely 
be submitted after the MOBILE5 budgets have already been approved. 
EPA's policy is that submitted SIPs may not replace approved SIPs.
    Response: This is the reason that EPA proposed on the July 28, 
2000, a supplemental notice (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: 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: EPA agrees. The motor vehicle emissions budgets in the 
New York Metro Area attainment demonstration reflects the motor vehicle 
control measures in New York's 1-hour Ozone Attainment Demonstration 
SIP. In addition, New York has committed to submit new budgets as a 
revision to the attainment SIP consistent with any new measures 
submitted to fill any shortfall, if the additional control measures 
affect on-road motor vehicle emissions.
    Comment: EPA should make it clear that the motor vehicle emissions 
budgets to be used for conformity purposes will be determined from the 
total motor vehicle emissions reductions required in the SIP, even if 
the SIP does not explicitly quantify a revised motor vehicle emissions 
budget.
    Response: EPA will not approve SIPs without motor vehicle emissions 
budgets that are explicitly quantified for conformity purposes. The New 
York Metro Area attainment demonstration contains explicitly quantified 
motor vehicle emissions budgets.
    Comment: If a state fails to follow through on its commitment to 
submit the revised motor vehicle emissions budgets using MOBILE6, EPA 
could make a finding of failure to submit a portion of a SIP, which 
would trigger a sanctions clock under section 179.
    Response: If a state fails to meet its commitment, EPA could make a 
finding of failure to implement the SIP, which would start a sanctions 
clock under section 179 of the CAA.
    Comment: If the budgets recalculated using MOBILE6 are larger than 
the MOBILE5 budgets, then attainment should be demonstrated again.
    Response: 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: If the MOBILE6 budgets are smaller than the MOBILE5 
budgets, the difference between the budgets should not be available for 
reallocation to other sources unless air quality data show that the 
area is attaining, and a revised attainment demonstration is submitted 
that demonstrates that the increased emissions are consistent with 
attainment and maintenance. Similarly, the MOBILE5 budgets should not 
be retained (while MOBILE6 is being used for conformity demonstrations) 
unless the above conditions are met.
    Response: 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. In addition, New York 
will be submitting new budgets based on MOBILE6, so the MOBILE5 budgets 
will not be retained in the SIP indefinitely.

K. MOBILE6 Grace Period

    Comment: We received a comment on whether the grace period before 
MOBILE6 is required in conformity determinations will be consistent 
with the schedules for revising SIP motor vehicle emissions budgets 
within 1 or 2 years of MOBILE6's release.
    Response: 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 2-year grace period 
allowed by the conformity rule, and EPA will address this in the future 
when the final MOBILE6 emissions model and policy guidance is issued.
    Comment: 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: 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 the final 
MOBILE6 model is issued. EPA believes that MOBILE6 should be used in 
conformity determinations once new MOBILE6 budgets are found adequate.

L. Two-Year Option to Revise the Motor Vehicle Emissions Budgets

    Comment: 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: EPA proposed the additional option to provide further 
flexibility in managing MOBILE6 budget revisions. The supplemental 
proposal did not change the original option to revise budgets within 
one year of MOBILE6's release. State and local governments can continue 
to use the 1-year option, if desired, or submit a new commitment 
consistent with the alternative 2-year option. EPA expects that state 
and local agencies have consulted on which option is appropriate and 
have considered the impact on future conformity determinations. New 
York has committed to revise its budgets within one-year of MOBILE6's 
being issued.

M. Measures for the 1-hour National Ambient Air Quality Standards 
(NAAQS) and for Progress Toward 8-hour NAAQS

    Comment: One commenter notes that EPA has been working toward 
promulgation of a revised 8-hour ozone 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 eight-hour ozone standard as 
the requirements of the CAA and implementing regulations allow.
    Response: The 1-hour standard remains in effect for all of these 
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 EPA determines that the SIP 
meets the requirements of the CAA. EPA believes that the SIPs for the 
severe areas meet the requirements for attainment demonstrations for 
the 1-

[[Page 5193]]

hour standard and thus, could not disapprove them even if EPA believed 
other control requirements might be more effective for attaining the 8-
hour standard. However, EPA generally believes that emission controls 
implemented to attain the 1-hour ozone standard will be beneficial 
towards 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 this standard has been delayed 
while certain aspects of the standard remain before the United States 
Circuit Court of Appeals. The states and the 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.

N. Attainment and Post 1999 Reasonable Further Progress Demonstrations

    Comment: One commenter claims that the plans fail to demonstrate 
emission reductions of 3 percent per year over each 3-year period 
between November 1999 and November 2002; and November 2002 and November 
2005; and the 2-year period between November 2005 and November 2007, as 
required by 42 U.S.C. 7511a(c)(2)(B). The states have not even 
attempted to demonstrate compliance with these requirements, and EPA 
has not proposed to find that they have been met.
    The commenter continues stating that the EPA has absolutely no 
authority to waive the statutory mandate for 3 percent annual 
reductions. The statute does not allow EPA to use the NOX 
SIP Call or 126 orders as an excuse for waiving RFP deadlines. The 
statutory RFP requirement is for emission reductions--not ambient 
reductions. Emission reductions in upwind states do not waive the 
statutory requirement for 3 percent annual emission reductions within 
the downwind nonattainment area.
    Response: Under no condition is EPA waiving the statutory 
requirement for 3 percent annual emission reductions. For many areas, 
EPA did not propose approval of the post-99 RFP demonstrations at the 
same time as EPA proposed action on the area's attainment 
demonstration. New York submitted its Post-99 RFP Plans on November 27, 
1998 and EPA proposed approval on August 13, 2001 (66 FR 42479). EPA is 
approving the RFP Plans as part of this action.

IV. What Are EPA's Conclusions?

    As described above, EPA does not believe any of the comments we 
received on the proposals published for the attainment demonstration 
and other SIP revisions for the New York portion of the New York-
Northern New Jersey-Long Island ozone nonattainment area should affect 
EPA's determination that the SIP is fully approvable. Thus, EPA is 
approving several SIP revisions that relate to attainment of the 1-hour 
ozone standard in New York. EPA has evaluated New York's 1-hour Ozone 
Attainment Demonstration SIP submittal for consistency with the CAA, 
applicable EPA regulations, and EPA policy. EPA has determined that the 
1-hour ozone standard in the New York Metro Area will not be achieved 
until the states and EPA implement additional measures to meet the 
necessary level of reductions identified by EPA, including Tier 2/
Sulfur program and a group of local controls, such as measures 
consistent with the OTC recommendations. EPA has promulgated all of the 
necessary federal rules needed to provide for attainment. New York has 
committed to adopt and submit the measures necessary to achieve 
additional reductions. EPA is approving New York's 1-hour Ozone 
Attainment Demonstration SIP, including all of the enforceable 
commitments, as fully meeting the attainment demonstration requirements 
of sections 182(c)(2) and (d) of the CAA.
    EPA has also evaluated New York's Reasonable Further Progress 
Plans, projection year inventories and transportation conformity 
budgets for 2002, 2005 and 2007, ozone contingency measures and RACM 
Analysis submittals for consistency with the CAA and EPA regulations 
and policy. EPA is approving New York's: 2002, 2005 and 2007 ozone 
projection emission inventories; 2002, 2005 and 2007 RFP Plans; 2002, 
2005 and 2007 transportation conformity budgets; ozone contingency 
measures; and RACM Analysis.

V. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
final action is not a ``significant regulatory action'' and therefore 
is not subject to review by the Office of Management and Budget. This 
final 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 final 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 proposes to approve pre-existing requirements under 
state law and does not impose any additional enforceable duty beyond 
that required by state law, it does not contain any unfunded mandate or 
significantly or uniquely affect small governments, as described in the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). For the same 
reason, this final rule also does not significantly or uniquely affect 
the communities of tribal governments, as specified by Executive Order 
13084 (63 FR 27655, May 10, 1998). This final rule will not have 
substantial direct effects on the states, on the relationship between 
the national government and the states, or on the distribution of power 
and responsibilities among the various levels of government, as 
specified in Executive Order 13132 (64 FR 43255, August 10, 1999), 
because it merely approves a state rule implementing a federal 
standard, and does not alter the relationship or the distribution of 
power and responsibilities established in the CAA. This final 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 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 CAA. 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 
final 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

[[Page 5194]]

impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    The Congressional Review Act, 5 U.S.C. section 801 et seq., as 
added by the Small Business Regulatory Enforcement Fairness Act of 
1996, generally provides that before a rule may take effect, the agency 
promulgating the rule must submit a rule report, which includes a copy 
of the rule, to each House of the Congress and to the Comptroller 
General of the United States. EPA will submit a report containing this 
rule and other required information to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States 
prior to publication of the rule in the Federal Register. This rule is 
not a ``major'' rule as defined by 5 U.S.C. section 804(2). This rule 
will be effective March 6, 2002.
    Under section 307(b)(1) of the CAA, petitions for judicial review 
of this action must be filed in the United States Court of Appeals for 
the appropriate circuit by April 5, 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, Hydrocarbons, 
Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and 
recordkeeping requirements, Volatile organic compounds.

    Dated: January 14, 2002.
Jane M. Kenny,
Regional Administrator, Region 2.

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

PART 52--[AMENDED]

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

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

Subpart HH--New York

    2. Section 52.1683 is amended by adding new paragraph (i) to read 
as follows:


Sec. 52.1683  Control strategy: Ozone.

* * * * *
    (i)(1) The 2002, 2005 and 2007 ozone projection year emission 
inventories included in New York's November 27, 1998 State 
Implementation Plan revision for the New York portion of the New York-
Northern New Jersey-Long Island nonattainment area are approved.
    (2) The Reasonable Further Progress Plans for milestone years 2002, 
2005 and 2007 included in the New York's November 27, 1998 State 
Implementation Plan revision for the New York portion of the New York-
Northern New Jersey-Long Island nonattainment area are approved.
    (3) The contingency measures included in the New York's November 
27, 1998 State Implementation Plan revision for the New York portion of 
the New York-Northern New Jersey-Long Island nonattainment area 
necessary to fulfill the RFP and attainment requirement of section 
172(c)(9) of the CAA are approved.
    (4) The 2002, 2005 and 2007 conformity emission budgets for the New 
York portion of the New York-Northern New Jersey-Long Island 
nonattainment area included in New York's November 27, 1998 and April 
18, 2000 State Implementation Plan revisions are approved until such 
time as New York submits revised budgets consistent with its 
commitments to revise the budgets with reference to MOBILE6 and/or 
additional control measures and EPA finds those revised budgets 
adequate.
    (5) The Reasonably Available Control Measure Analysis for the New 
York portion of the New York-Northern New Jersey-Long Island 
nonattainment area included in New York's October 1, 2001 State 
Implementation Plan revision is approved.
    (6) The revisions to the State Implementation Plan submitted by New 
York on November 27, 1998, April 15, 1999, and April 18, 2000, are 
approved. The revisions are for the purpose of satisfying the 
attainment demonstration requirements of section 182(c)(2)(A) of the 
CAA for the New York portion of the New York-Northern New Jersey-Long 
Island severe ozone nonattainment area. The revisions establish an 
attainment date of November 15, 2007, for the New York-Northern New 
Jersey-Long Island ozone nonattainment area. The April 18, 2000, 
revision includes the following enforceable commitments for future 
actions associated with attainment of the 1-hour ozone national ambient 
air quality standard:
    (i) Adopt additional control measures by October 31, 2001, to meet 
that level of reductions identified by EPA for attainment of the 1-hour 
ozone standard.
    (ii) Work through the Ozone Transport Commission (OTC) to develop a 
regional strategy regarding the measures necessary to meet the 
additional reductions identified by EPA.
    (iii) Adopt and submit by October 31, 2001 intrastate measures for 
the emission reductions (Backstop) in the event the OTC process does 
not recommend measures that produce emission reductions.
    (iv) Submit revised State Implementation Plan and motor vehicle 
emissions budget by October 31, 2001 if additional adopted measures 
affect the motor vehicle emissions inventory.
    (v) Revise State Implementation Plan and motor vehicle emissions 
budget within 1 year after MOBILE6 mobile emissions model is issued.
    (vi) Perform a mid-course review and submit the results to EPA by 
December 31, 2003.

[FR Doc. 02-1754 Filed 2-1-02; 8:45 am]
BILLING CODE 6560-50-P