[Federal Register Volume 67, Number 203 (Monday, October 21, 2002)]
[Proposed Rules]
[Pages 64582-64594]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-26709]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[NH-049-7174b:FRL-7396-6]


Approval and Promulgation of Implementation Plans; New Hampshire; 
One-hour Ozone Attainment Demonstration for the New Hampshire Portion 
of the Boston-Lawrence-Worcester, MA-NH Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: The EPA is proposing to fully approve the one-hour ozone 
attainment demonstration State Implementation Plan (SIP) for the New 
Hampshire portion of the Boston-Lawrence-Worcester, MA-NH serious ozone 
nonattainment area submitted by the New Hampshire Department of 
Environmental Services on June 30, 1998. This action is based on the 
requirements of the Clean Air Act (CAA) as amended in 1990, related to 
one-hour ozone attainment demonstrations.

DATES: Comments must be received on or before November 20, 2002.

ADDRESSES: Written comments (two copies if possible) should be sent to: 
David B. Conroy at the EPA Region I (New England) Office, One Congress 
Street, Suite 1100-CAQ, Boston, Massachusetts 02114-2023.
    Copies of the state submittal and EPA's technical support document 
are available for public inspection during normal business hours (9 
a.m. to 4 p.m.) at the following addresses: U.S. Environmental 
Protection Agency, Region 1 (New England), One Congress St., 11th 
Floor, Boston, Massachusetts, telephone (617) 918-1664, and at the Air 
Resources Division, Department of Environmental Services, 6 Hazen 
Drive, P.O. Box 95, Concord, NH 03302-0095 Please telephone in advance 
before visiting.

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

SUPPLEMENTARY INFORMATION: This notice provides an analysis of the one-
hour ozone attainment demonstration SIP submitted by the New Hampshire 
Department of Environmental Services (New Hampshire DES) for the New 
Hampshire portion of the Boston-Lawrence-Worcester MA-NH serious 
nonattainment area. Table of Contents:

I. Clean Air Act Requirements for Serious Ozone Nonattainment Areas
II. Background and Current Air Quality Status of the Boston-
Lawrence-

[[Page 64583]]

Worcester, MA-NH Ozone Nonattainment Area
III. History and Time Frame for the State's Attainment Demonstration 
SIP
IV. What Are the Components of a Modeled Attainment Demonstration?
V. What Is the Framework for Proposing Action on the Attainment 
Demonstration SIPs?
VI. What Are the Relevant Policy and Guidance Documents?
VII. How Does the New Hampshire Submittal Satisfy the Framework?
VIII. Proposed Action
IX. Administrative Requirements

I. Clean Air Act Requirements for Serious Ozone Nonattainment Areas

    The Clean Air Act requires EPA to establish national ambient air 
quality standards (NAAQS or standards) for certain widespread 
pollutants that cause or contribute to air pollution that is reasonably 
anticipated to endanger public health or welfare. CAA sections 108 and 
109. In 1979, EPA promulgated the one-hour 0.12 parts per million (ppm) 
ground-level ozone standard. 44 FR 8202 (February 8, 1979). Ground-
level ozone is not emitted directly by sources. Rather, emissions of 
nitrogen oxides (NOX) and volatile organic compounds (VOCs) 
react in the presence of sunlight to form ground-level ozone. 
NOX and VOC are referred to as precursors of ozone.
    An area exceeds the one-hour ozone standard each time an ambient 
air quality monitor records a one-hour average ozone concentration of 
0.125 ppm or higher.\1\ An area is violating the standard if, over a 
consecutive three-year period, more than three exceedances are expected 
to occur at any one monitor. The area's 4th highest ozone reading at a 
single monitor is its design value. The CAA, as amended in 1990, 
required EPA to designate as nonattainment any area that was violating 
the one-hour ozone standard, generally based on air quality monitoring 
data from the three-year period from 1987-1989. CAA section 107(d)(4); 
56 FR 56694 (November 6, 1991). The CAA further classified these areas, 
based on the area's design value, as marginal, moderate, serious, 
severe or extreme. CAA section 181(a). Marginal areas were suffering 
the least significant air pollution problems while the areas classified 
as severe and extreme had the most significant air pollution problems.
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    \1\ The one-hour ozone standard is 0.12 ppm. EPA's long-standing 
practice is that monitored values of 0.125 ppm or higher are rounded 
up, and thus considered an exceedance of the NAAQS and values less 
than 0.125 ppm are rounded down and are not an exceedance.
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    The control requirements and dates by which attainment needs to be 
achieved vary with the area's classification. Marginal areas are 
subject to the fewest mandated control requirements and have the 
earliest attainment date. Severe and extreme areas are subject to more 
stringent planning requirements but are provided more time to attain 
the standard. Serious areas were required to attain the one-hour ozone 
standard by November 15, 1999 and severe areas are required to attain 
by November 15, 2005 or November 15, 2007. The Boston-Lawrence-
Worcester, MA-NH ozone nonattainment area is classified as serious and 
its attainment date is November 15, 1999.
    Under section 182(c)(2) of the CAA, serious areas were required to 
submit by November 15, 1994 demonstrations of how they would attain the 
one-hour ozone standard and how they would achieve reductions in VOC 
emissions of 9 percent for each three-year period until the attainment 
year. In some cases, NOX emission reductions can be 
substituted for the required VOC emission reductions.
    In general, an attainment demonstration SIP includes a modeling 
analysis component showing how the area will achieve the standard by 
its attainment date and the control measures necessary to achieve those 
reductions. Another component of the attainment demonstration SIP is a 
motor vehicle emissions budget for transportation conformity purposes. 
Transportation conformity is a process for ensuring that states 
consider the effects of emissions associated with new or improved 
federally-funded roadways and transit on attainment of the standard. As 
described in section 176(c)(2)(A) of the CAA, attainment demonstrations 
necessarily include the estimates of motor vehicle emissions that are 
consistent with attainment, which then act as a budget or ceiling for 
the purposes of determining whether federally-supported transportation 
plans and projects conform to the attainment demonstration SIP.

II. Background and Current Air Quality Status of the Boston-Lawrence-
Worcester, MA-NH Ozone Nonattainment Area

    The Boston-Lawrence-Worcester, MA-NH ozone nonattainment area is a 
multi-state nonattainment area consisting of a small portion of 
southern New Hampshire and the entire eastern half of Massachusetts. In 
New Hampshire, the nonattainment area consists of 28 individual cities 
and towns in portions of Hillsborough and Rockingham counties. In 
Hillsborough County, the individual cities and towns included in the 
nonattainment area are: Amherst Town, Brookline Town, Hollis Town, 
Hudson Town, Litchfield Town, Merrimack Town, Milford Town, Mont Vernon 
Town, Nashua City, Pelham Town, and Wilton Town. In Rockingham, the 
individual towns included in the nonattainment area are: Atkinson Town, 
Brentwood Town, Danville Town, Derry Town, E. Kingston Town, Hampstead 
Town, Hampton Falls Town, Kensington Town, Kingston Town, Londonderry 
Town, Newton Town, Plaistow Town, Salem Town, Sandown Town, Seabrook 
Town, South Hampton Town, and Windham Town. In Massachusetts, the 
nonattainment area includes a much larger area, consisting of 10 
counties in their entirety (i.e., Barnstable, Bristol, Dukes, Essex, 
Middlesex, Nantucket, Norfolk, Plymouth, Suffolk, and Worcester 
counties). Based on 1999 emission estimates by the New Hampshire DES 
and the Massachusetts Department of Environmental Protection (DEP), the 
New Hampshire portion of the nonattainment area accounted for only 6 
percent of the total VOC emissions in the nonattainment area, and only 
4 percent of the total NOX emissions.
    Historically and throughout most of the 1990's, ozone monitors 
throughout the Boston-Lawrence-Worcester, MA-NH nonattainment area 
violated the one-hour ozone standard. Directly downwind of the Boston-
Lawrence-Worcester, MA-NH nonattainment area, there were also a number 
of other nonattainment areas violating the one-hour ozone standard 
during the 1990's in other parts of New Hampshire and in portions of 
southern Maine. On June 9, 1999, however, EPA determined that the 
Boston-Lawrence-Worcester, MA-NH serious ozone nonattainment area had 
attained the 1-hour ozone standard (64 FR 30911).\2\ This determination 
was based on data collected from 1996-1998. On June 9, 1999, EPA also 
determined that the Portsmouth-Dover-Rochester, New Hampshire ozone 
nonattainment area and the Portland, Maine ozone nonattainment area had 
also attained the 1-hour ozone standard based on data collected from 
1996-1998. See 64 FR 30911. At the time of these determinations of 
attainment,

[[Page 64584]]

there were no areas in any portion of New Hampshire or Maine that 
violated the one-hour ozone standard.
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    \2\ In that notice, EPA also determined the one-hour ozone 
standard no longer applied to the Boston-Lawrence-Worcester, MA-NH 
area. Subsequently, due to continued litigation regarding the 8-hour 
ozone standard, EPA reinstated the applicability of the one-hour 
ozone standard in all areas. See 65 FR 45182 (July 20, 2000). EPA, 
however, did not modify its determination that the Boston-Lawrence-
Worcester, MA-NH area had attained the one-hour ozone standard prior 
to its attainment date.
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    The Boston-Lawrence-Worcester, MA-NH nonattainment area continued 
to have air quality meeting the one-hour ozone standard in 1999 (based 
on data from 1997-1999) and in 2000 (based on data from 1998-2000). 
Based on data collected in 1999-2001, however, the Boston-Lawrence-
Worcester, MA-NH area now has air quality violating the one-hour ozone 
standard. The violating monitors are in the southern portion of the 
multi-state nonattainment area in Fairhaven and Truro, Massachusetts, 
which are at least 75 miles from the Massachusetts-New Hampshire state 
border. The other nine ozone air quality monitors in the Boston-
Lawrence-Worcester, MA-NH ozone nonattainment area (i.e, in the 
Massachusetts cities and towns of Easton, Stow, Boston (two sites), 
Lynn, Lawrence, Worcester, and Newbury, and in Nashua, New Hampshire) 
continue to show attainment of the one-hour ozone NAAQS, based on 1999-
2001 data. Preliminary (not quality assured) ozone data readings from 
the monitors for the area from the summer of 2002 show only the Truro 
monitor registering a violation of the one-hour ozone NAAQS for the 
three-year period 2000-2002.

III. History and Time Frame for the State's Attainment Demonstration 
SIP

A. Ozone Transport Assessment Group and the NOX SIP Call

    Notwithstanding significant efforts by the states, in 1995 EPA 
recognized that many states in the eastern half of the United States 
could not meet the November 1994 time frame for submitting an 
attainment demonstration SIP under the Act because emissions of 
NOX and VOCs in upwind states (and the ozone formed by these 
emissions) affected these nonattainment areas and the full impact of 
this effect had not yet been determined. This phenomenon is called 
ozone transport.
    On March 2, 1995, Mary D. Nichols, EPA's then Assistant 
Administrator for Air and Radiation, issued a memorandum to EPA's 
Regional Administrators acknowledging the efforts made by states but 
noting the remaining difficulties in making attainment demonstration 
SIP submittals.\3\ Recognizing the problems created by ozone transport, 
the March 2, 1995 memorandum called for a collaborative process among 
the states in the eastern half of the country to evaluate and address 
transport of ozone and its precursors. This memorandum led to the 
formation of the Ozone Transport Assessment Group (OTAG) \4\ and 
provided for the states to submit the attainment demonstration SIPs 
based on the expected time frames for OTAG to complete its evaluation 
of ozone transport.
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    \3\ Memorandum, ``Ozone Attainment Demonstrations,'' issued 
March 2, 1995. A copy of the memorandum may be found on EPA's Web 
site at http://www.epa.gov/ttn/oarpg/t1pgm.html.
    \4\ Letter from Mary A. Gade, Director, State of Illinois 
Environmental Protection Agency to Environmental Council of States 
(ECOS) Members, dated April 13, 1995.
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    In June 1997, OTAG concluded and provided EPA with recommendations 
regarding ozone transport. The OTAG generally concluded that transport 
of ozone and the precursor NOX is significant and should be 
reduced regionally to enable states in the eastern half of the country 
to attain the ozone NAAQS.
    In recognition of the length of the OTAG process, in a December 29, 
1997 memorandum, Richard Wilson, EPA's then Acting Assistant 
Administrator for Air and Radiation, provided until April 1998 for 
states to submit the following elements of their attainment 
demonstration SIPs for serious and severe nonattainment areas: (1) 
Evidence that the applicable control measures in subpart 2 of part D of 
title I of the CAA were adopted and implemented or were on an 
expeditious course to being adopted and implemented; (2) a list of 
measures needed to meet the remaining rate-of-progress (ROP) emissions 
reduction requirement and to reach attainment; (3) for severe areas 
only, a commitment to adopt and submit target calculations for post-
1999 ROP and the control measures necessary for attainment and ROP 
plans through the attainment year by the end of 2000; (4) a commitment 
to implement the SIP control programs in a timely manner and to meet 
ROP emissions reductions and attainment; and (5) evidence of a public 
hearing on the state submittal.\5\ This submission is sometimes 
referred to as the Phase 2 submission. Motor vehicle emissions budgets 
can be established based on a commitment to adopt the measures needed 
for attainment and identification of the measures needed. Thus, state 
submissions due in April 1998 under the Wilson policy should have 
included motor vehicle emissions budgets.
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    \5\ Memorandum, ``Guidance for Implementing the 1-Hour Ozone and 
Pre-Existing PM 10 NAAQS,'' issued December 29, 1997. A copy of this 
memorandum may be found on EPA's Web site at http://www.epa.gov/ttn/oarpg/t1pgm.html.
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    Building upon the OTAG recommendations and technical analyses, in 
November 1997, EPA proposed action addressing the ozone transport 
problem. In its proposal, EPA found that current SIPs in 22 states and 
the District of Columbia (23 jurisdictions) were insufficient to 
provide for attainment and maintenance of the one-hour ozone standard 
because they did not regulate NOX emissions that 
significantly contribute to ozone transport. 62 FR 60318 (November 7, 
1997). The EPA finalized that rule in September 1998, calling on the 23 
jurisdictions to revise their SIPs to require NOX emissions 
reductions within the state to a level consistent with a NOX 
emissions budget identified in the final rule. 63 FR 57356 (October 27, 
1998). This final rule is commonly referred to as the NOX 
SIP Call.

B. New Hampshire Ozone Attainment Demonstration Submittal

    On June 30, 1998, New Hampshire DES submitted an ozone attainment 
demonstration for the New Hampshire portion of the Boston-Lawrence-
Worcester, MA-NH serious ozone nonattainment area as a revision to its 
SIP. On June 9, 1999, however, EPA determined that the Boston-Lawrence-
Worcester, MA-NH serious ozone nonattainment area had attained the 1-
hour ozone standard (64 FR 30911). This determination was based on data 
collected from 1996-1998. Consistent with then current EPA policy,\6\ 
since the Boston-Lawrence-Worcester, MA-NH area had attained the 
standard by November 15, 1999, its statutory attainment date, EPA took 
no action on the New Hampshire attainment demonstration SIP submittal 
for the Boston-Lawrence-Worcester, MA-NH area. The Boston-Lawrence-
Worcester, MA-NH nonattainment area continued to have air quality 
meeting the one-hour ozone standard through the summer of 2000.
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    \6\ Policy guidance contained in a May 10, 1995 memorandum from 
John Seitz, Director of EPA's Office of Air Quality Planning and 
Standards, entitled ``Reasonable Further Progress, Attainment 
Demonstration, and Related Requirements for Ozone Nonattainment 
Areas Meeting the Ozone National Ambient Air Quality Standard'' 
recommends that ROP and attainment demonstration requirements, along 
with certain other related requirements, of Part D of Title 1 of the 
Clean Air Act are no longer applicable to an area once it has air 
quality data indicating that the one-hour ozone standard has been 
attained.
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    As mentioned above, based on data collected in 1999-2001, the 
Boston-Lawrence-Worcester, MA-NH area now has air quality violating the 
one-hour ozone standard. Thus, this nonattainment area is once again 
required to have an approved attainment demonstration and 9% ROP plan 
with respect to section 182(c)(2) of

[[Page 64585]]

the CAA. Today, in this proposed rule, EPA is proposing action on the 
attainment demonstration SIP submitted by the New Hampshire DES on June 
30, 1998 for the New Hampshire portion of the Boston-Lawrence-
Worcester, MA-NH area. EPA approved the state's 9% ROP plan for the 
area via a direct final rulemaking on April 16, 2002 (67 FR 18547). In 
an earlier action, EPA proposed approval of the attainment 
demonstration for the Massachusetts portion of this same nonattainment 
area. In that proposed action, EPA proposed approval of an attainment 
date of November 15, 2007 for the Boston-Lawrence-Worcester, MA-NH 
nonattainment area. EPA plans to take action separately on contingency 
measures for both the New Hampshire and Massachusetts portions of the 
Boston-Lawrence-Worcester, MA-NH nonattainment area.
    The statutory attainment date for the Boston-Lawrence-Worcester, 
MA-NH nonattainment area is November 15, 1999. The area attained the 
standard as of its attainment date, but then subsequently experienced a 
violation. The CAA does not expressly address the appropriate 
attainment date for an area that attains the standard by its attainment 
date but then subsequently violates the standard nor does it address 
the planning requirements that apply to such an area. (CAA sections 
179(c) and (d) and 181(b)(2) establish requirements only for those 
areas that EPA determines do not attain the standard by their 
attainment date.) With respect to the attainment date, both subparts 1 
and 2 of Part D of the Act specify outside dates for attainment and 
provide that attainment must be ``as expeditiously as practicable'' 
within those outside dates. CAA sections 172(a)(2) and 181(a)(1). With 
respect to control obligations, EPA generally attempts first to work 
with the State to submit a revised SIP and, where necessary, would 
issue a SIP Call pursuant to section 110(k)(5) if additional controls 
were needed. See e.g., 65 FR 64352 (Oct. 27, 2000). Here, Massachusetts 
has already submitted an attainment demonstration and has indicated 
that the demonstration provides for attainment, by November 15, 2007, 
which is as expeditiously as practicable, within the multi-state area. 
We review New Hampshire's 1998 attainment demonstration SIP submission 
in conjunction with the more recent attainment demonstration SIP 
submitted by Massachusetts in the following sections.

IV. What are the Components of a Modeled Attainment Demonstration?

    The EPA provides that states may rely on a modeled attainment 
demonstration supplemented with additional evidence to demonstrate 
attainment.\7\ In order to have a complete modeling demonstration 
submission, states should have submitted the required modeling analysis 
and identified any additional evidence that EPA should consider in 
evaluating whether the area will attain the standard.
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    \7\ The EPA issued guidance on the air quality modeling that is 
used to demonstrate attainment with the one-hour ozone NAAQS. See 
U.S. EPA, (1991), Guideline for Regulatory Application of the Urban 
Airshed Model, EPA-450/4-91-013, (July 1991). A copy may be found on 
EPA's Web site at http://www.epa.gov/ttn/scram/ (file name: 
``UAMREG''). See also U.S. EPA, (1996), Guidance on Use of Modeled 
Results to Demonstrate Attainment of the Ozone NAAQS, EPA-454/B-95-
007, (June 1996). A copy may be found on EPA's Web site at http://www.epa.gov/ttn/scram/ (file name: ``O3TEST'').
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A. Modeling Requirements

    For purposes of demonstrating attainment, section 182(c) of the CAA 
requires serious areas to use photochemical grid modeling or an 
analytical method EPA determines to be as effective.\8\ The 
photochemical grid model is set up using meteorological conditions 
conducive to the formation of ozone. Emissions for a base year are used 
to evaluate the model's ability to reproduce actual monitored air 
quality values and to predict air quality changes in the attainment 
year due to the emission changes which include growth up to and 
controls implemented by the attainment year. A modeling domain is 
chosen that encompasses the nonattainment area. Attainment is 
demonstrated when all predicted concentrations inside the modeling 
domain are at or below the NAAQS or at an acceptable upper limit above 
the NAAQS consistent with conditions specified by EPA's guidance. When 
the predicted concentrations are above the NAAQS, an optional Weight of 
Evidence (WOE) determination which incorporates, but is not limited to, 
other analyses, such as air quality and emissions trends, may be used 
to address uncertainty inherent in the application of photochemical 
grid models.
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    \8\ Ibid.
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    The EPA guidance identifies the features of a modeling analysis 
that are essential to obtain credible results. First, the state must 
develop and implement a modeling protocol. The modeling protocol 
describes the methods and procedures to be used in conducting the 
modeling analyses and provides for policy oversight and technical 
review by individuals responsible for developing or assessing the 
attainment demonstration (state and local agencies, EPA Regional 
offices, the regulated community, and public interest groups). Second, 
for purposes of developing the information to put into the model, the 
state must select air pollution days, i.e., days in the past with poor 
air quality, that are representative of the ozone pollution problem for 
the nonattainment area. Third, the state needs to identify the 
appropriate dimensions of the area to be modeled, i.e., the domain 
size. The domain should be larger than the designated nonattainment 
area to reduce uncertainty in the boundary conditions and should 
include large upwind sources just outside the nonattainment area. In 
general, the domain is considered the local area where control measures 
are most beneficial to bring the area into attainment. Fourth, the 
state needs to determine the grid resolution. The horizontal and 
vertical resolutions in the model affect the dispersion and transport 
of emission plumes. Artificially large grid cells (too few vertical 
layers and horizontal grids) may dilute concentrations and may not 
properly consider impacts of complex terrain, complex meteorology, and 
land/water interfaces. Fifth, the state needs to generate 
meteorological data that describe atmospheric conditions and emissions 
inputs. Finally, the state needs to verify that the model is properly 
simulating the chemistry and atmospheric conditions through diagnostic 
analyses and model performance tests. Once these steps are 
satisfactorily completed, the model is ready to be used to generate air 
quality estimates to support an attainment demonstration.
    The modeled attainment test compares model-predicted one-hour daily 
maximum concentrations in all grid cells for the attainment year to the 
level of the NAAQS. 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 attain the standard. This type of test is often 
referred to as an exceedance test. The EPA's guidance recommends that 
states use either of two modeled attainment or exceedance tests for the 
one-hour ozone NAAQS: a deterministic test or a statistical test.
    The deterministic test requires the state to compare predicted one-
hour daily maximum ozone concentrations

[[Page 64586]]

for each modeled day \9\ to the attainment level of 0.124 ppm. If none 
of the predictions exceed 0.124 ppm, the test is passed.
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    \9\ The initial, ``ramp-up'' days for each episode are excluded 
from this determination.
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    The statistical test takes into account the fact that the form of 
the one-hour ozone standard allows exceedances. If, over a three-year 
period, the area has an average of one or fewer exceedances per year, 
the area is not violating the standard. Thus, if the state models a 
very extreme day, the statistical test provides that a prediction above 
0.124 ppm up to a certain upper limit may be consistent with attainment 
of the standard. (The form of the one-hour ozone standard allows for up 
to three readings above the standard over a three-year period before an 
area is considered to be in violation.)
    The acceptable upper limit above 0.124 ppm is determined by 
examining the size of exceedances at monitoring sites which meet the 
one-hour NAAQS. For example, a monitoring site for which the four 
highest one-hour average concentrations over a three-year period are 
0.136 ppm, 0.130 ppm, 0.128 ppm and 0.122 ppm is attaining the 
standard. To identify an acceptable upper limit, the statistical 
likelihood of observing ozone air quality exceedances of the standard 
of various concentrations is equated to the severity of the modeled 
day. The upper limit generally represents the maximum ozone 
concentration observed at a location on a single day and it would be 
the only reading above the standard that would be expected to occur no 
more than an average of once a year over a three-year period. 
Therefore, if the maximum ozone concentration predicted by the model is 
below the acceptable upper limit, in this case 0.136 ppm, then EPA 
might conclude that the modeled attainment test is passed. Generally, 
exceedances well above 0.124 ppm are very unusual at monitoring sites 
meeting the NAAQS. Thus, these upper limits are rarely substantially 
higher than the attainment level of 0.124 ppm.

B. Additional Analyses Where Modeling Fails To Show Attainment

    When the modeling does not conclusively demonstrate attainment, 
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 modeling and its results. For 
example, there are uncertainties in some of the modeling inputs, such 
as the meteorological and emissions data bases for individual days and 
in the methodology used to assess the severity of an exceedance at 
individual sites. 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. The process by which this is done is 
called a weight of evidence (WOE) determination.
    Under a WOE determination, the state can rely on and EPA will 
consider factors such as: other modeled attainment tests, e.g., a 
rollback analysis; other modeled outputs, e.g., changes in the 
predicted frequency and pervasiveness of exceedances and predicted 
changes in the design value; actual observed air quality trends; 
estimated emissions trends; analyses of air quality monitored data; the 
responsiveness of the model predictions to further controls; and, 
whether there are additional control measures that are or will be 
approved into the SIP but were not included in the modeling analysis. 
This list is not an exclusive list of factors that may be considered 
and these factors could vary from case to case. The EPA's guidance 
contains no limit on how close a modeled attainment test must be to 
passing to conclude that other evidence besides an attainment test is 
sufficiently compelling to suggest attainment. However, the further a 
modeled attainment test is from being passed, the more compelling the 
WOE needs to be.
    The EPA's 1996 modeling guidance also recognizes a need to perform 
a mid-course review as a means for addressing uncertainty in the 
modeling results. Because of the uncertainty in long term projections, 
EPA believes a viable attainment demonstration that relies on WOE needs 
to contain provisions for periodic review of monitoring, emissions, and 
modeling data to assess the extent to which refinements to emission 
control measures are needed. The mid-course review is discussed below.

V. What Is the Framework for Proposing Action on the Attainment 
Demonstration SIPs?

    In addition to the modeling analysis and WOE support demonstrating 
attainment, the EPA has identified the following key elements which 
generally must be present in order for EPA to approve the one-hour 
attainment demonstration SIPs. These elements are: control measures 
required by the CAA that provide reductions towards attainment and 
measures relied on in the modeled attainment demonstration SIP; 
NOX reductions affecting boundary conditions; motor vehicle 
emissions budgets; any additional measures needed for attainment;\10\ 
and a Mid-Course Review (MCR).
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    \10\ As discussed in detail below, the New Hampshire attainment 
demonstration shows attainment without the need for additional 
measures beyond what has already been adopted into the SIP or will 
be required by federal regulations. Therefore additional measures 
are not required for New Hampshire.
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A. CAA Measures and Measures Relied on in the Modeled Attainment 
Demonstration SIP

    The states should have adopted the control measures already 
required under the CAA for the area classification. In addition, a 
state may have included control measures in its attainment strategy 
that are in addition to measures required in the CAA. For purposes of 
fully approving the state's SIP, the state needs to adopt and submit 
all VOC and NOX controls within the local modeling domain 
that were relied on for purposes of the modeled attainment 
demonstration.
    The information in Table 1 is a summary of the CAA requirements 
that should be met for a serious area for the one-hour ozone NAAQS. 
These requirements are specified in section 182 of the CAA. EPA must 
have taken final action approving all measures relied on for 
attainment, including the required ROP control measures and target 
calculations, before EPA can issue a final full approval of the 
attainment demonstration as meeting CAA section 182(c)(2). This was 
done for all measures relied on in the attainment demonstration for New 
Hampshire.

Table 1--CAA Requirements for Serious Areas

-- NSR for VOC and NOX \11\, including an offset ratio of 
1.2:1 and a major VOC and NOX source cutoff of 50 tons per 
year
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    \11\ Unless the area has in effect a NOX waiver under 
section 182(f). The New Hampshire portion of the Boston-Lawrence-
Worcester, MA-NH ozone nonattainment area is not such an area.
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-- Reasonable Available Control Technology (RACT) for VOC and 
NOX
-- Enhanced Inspection and Maintenance (I/M) program for large 
population centers
-- 15% volatile organic compound plans
-- Emissions inventory
-- Emission statements
-- Periodic inventories
-- Attainment demonstration
-- 9 percent ROP plan through 1999
-- Clean fuels program or substitute
-- Enhanced monitoring Photochemical Assessment Monitoring Stations
-- Stage II vapor recovery
-- Contingency measures

[[Page 64587]]

-- Reasonably Available Control Measures Analysis
1. Control Measures Adopted by New Hampshire
    Adopted and submitted rules for all previously required CAA 
mandated measures for the specific area classification that are being 
relied on in the attainment demonstration are required. This also 
includes measures that may not be required for the area classification 
but that the state relied on in the SIP submission for attainment. As 
explained in Table 2, New Hampshire has submitted SIPs for all of the 
measures they are relying on for attainment.

Table 2.--Control Measures in the One-Hour Ozone Attainment Plan for the
  New Hampshire Portion of the Boston-Lawrence-Worcester, MA-NH Serious
                        Ozone Nonattainment Area
------------------------------------------------------------------------
    Name of control measure      Type of measure      Approval status
------------------------------------------------------------------------
On-board Refueling Vapor        Federal rule.....  Promulgated at 40 CFR
 Recovery.                                          part 86.
Federal Motor Vehicle Control   Federal rule.....  Promulgated at 40 CFR
 program.                                           part 86.
Heavy Duty Diesel Engines (On-  Federal rule.....  Promulgated at 40 CFR
 road).                                             part 86.
Federal Non-road Heavy Duty     Federal rule.....  Promulgated at
 diesel engines.                                    engines 40 CFR part
                                                    89.
Federal Non-road Gasoline       Federal rule.....  Promulgated at 40 CFR
 Engines.                                           part 90.
Federal Marine Engines........  Federal rule.....  Promulgated at 40 CFR
                                                    part 91.
AIM Surface Coatings..........  Federal rule.....  Promulgated at 40 CFR
                                                    part 59.
Automotive Refinishing........  Federal rule.....  Promulgated at 40 CFR
                                                    part 59.
Consumer & commercial products  Federal rule.....  Promulgated at 40 CFR
                                                    part 59.
Inspection & Maintenance......  CAA SIP            SIP approved (66 FR
                                 Requirement and    1868; 1/10/01).
                                 OTR
                                 Restructuring.
NOX RACT......................  CAA SIP            SIP approved (62 FR
                                 Requirement.       17087; 4/9/97)
VOC RACT pursuant to sections   CAA SIP            SIPs approved (63 FR
 182(a)(2)(A) and 182(b)(2)(B)   Requirement.       67405; 12/17/98) (63
 of CAA.                                            FR 11600; 3/10/98)
                                                    (58 FR 4902; 1/19/
                                                    93) (58 FR 29973; 5/
                                                    25/93).
VOC RACT pursuant to section    CAA SIP            SIPs approved (67 FR
 182(b)(2)(A) and (C) of CAA.    Requirement.       48034; 7/23/02) (65
                                                    FR 42290; 7/10/2000)
                                                    (63 FR 11600; 3/10/
                                                    98).
Stage II Vapor Recovery.......  CAA SIP            SIP approved (63 FR
                                 Requirement.       67405; 12/7/98).
Reformulated Gasoline.........  State opt-in.....  SIP approved (63 FR
                                                    67405; 12/7/98).
National Low Emission Vehicle.  State option.....  SIP approved (65 FR
                                                    12476; 3/9/00).
Clean Fuel Fleets.............  CAA SIP            SIP approved (64 FR
                                 Requirement.       52434; 9/29/99).
New Source Review.............  CAA SIP            SIP approved (66 FR
                                 Requirement.       39100; 7/27/01).
Base Year Emissions Inventory.  CAA SIP            SIP approved (62 FR
                                 Requirement.       55521; 10/27/97).
15% VOC Reduction Plan........  CAA SIP            SIP approved (63 FR
                                 Requirement.       67405; 12/7/98).
9% rate of progress plan......  CAA SIP            SIP approved (67 FR
                                 Requirement.       18547; 4/16/02).
Emissions Statements..........  CAA SIP            SIP approved (63 FR
                                 Requirement.       11600; 3/10/98).
Enhanced Monitoring (PAMS)....  CAA Requirement..  SIP approved (62 FR
                                                    55521; 10/27/97).
OTC NOX MOU Phase II and III..  State initiative.  SIP approved (64 FR
                                                    29567; 6/2/99).
Stage II Vapor Recovery or      CAA SIP            SIP approved (64 FR
 comparable measures section     requirement.       52434; 9/29/1999).
 OTR requirement.
------------------------------------------------------------------------

B. NOX Reductions Consistent With the Modeling Demonstration

    On October 27, 1998 , EPA completed rulemaking on the 
NOX SIP call, which required states to address transport of 
NOX and ozone to other states. To address transport, the 
NOX SIP call established emissions budgets for 
NOX that 23 jurisdictions were required to show they would 
meet by 2007 through enforceable SIP measures adopted and submitted by 
September 30, 1999. The NOX SIP call is intended to reduce 
emissions in upwind states that significantly contribute to 
nonattainment problems. The EPA did not identify specific sources that 
the states must regulate nor did EPA limit the states' choices 
regarding where to achieve the emission reductions. The courts have 
largely upheld 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, states subject to the 
NOX SIP call have largely adopted the controls necessary to 
meet the budgets set for them under the NOX SIP call rule. 
The controls to achieve these reductions should be in place by May 
2004.
    New Hampshire used the best available NOX SIP Call 
information in its modeling analysis. The modeling analysis is 
discussed in more detail below. New Hampshire itself, however, was not 
one of the states required to adopt enforceable SIP measures to meet 
EPA's NOX SIP call. New Hampshire has adopted regulations 
consistent with the NOX Memorandum of Understanding 
(NOX MOU) adopted by the Ozone Transport Commission on 
September 27, 1994. When the NOX MOU was developed, New 
Hampshire voluntarily assigned their largest utility NOX 
source, the Merrimack Station, to the zone where reductions of 65 
percent in 1999 and 75 percent in 2003 are required. This measure is 
significant because otherwise there would be no requirements for this 
plant under the NOX MOU until 2003, at which time a 55 
percent reduction is required. EPA approved the regulation New 
Hampshire adopted pursuant to the NOX MOU on June 2, 1999 
(64 FR 29567).

C. Motor Vehicle Emissions Budgets (MVEBs)

    The EPA believes that attainment demonstration SIPs must 
necessarily estimate the level of motor vehicle emissions, which when 
considered with emissions from all other sources (stationary, area and 
other mobile source), is consistent with attainment. The estimate of 
motor vehicle emissions is used to determine the conformity of 
transportation plans and programs to the SIP, as described by CAA 
section 176(c)(2)(A). For transportation conformity purposes, the 
estimate of

[[Page 64588]]

motor vehicle emissions is known as the motor vehicle emissions budget. 
The EPA believes that appropriately identified motor vehicle emissions 
budgets are a necessary part of an attainment demonstration SIP. A SIP 
cannot effectively demonstrate attainment unless it identifies the 
level of motor vehicle emissions that can be produced while still 
demonstrating attainment.

D. Mid-Course Review

    A mid-course review (MCR), which generally is performed midway 
between approval of the attainment demonstration and the attainment 
date, is a reassessment of modeling analyses and more recent monitored 
data to determine if a prescribed control strategy is resulting in 
emission reductions and air quality improvements needed to attain the 
ambient air quality standard for ozone as expeditiously as practicable.

E. Reasonably Available Control Measures (RACM) Analysis

    Section 172(c)(1) of the CAA requires SIPs to contain all RACM and 
provide for attainment as expeditiously as practicable. EPA has 
previously provided guidance interpreting the requirements of 
172(c)(1). See 57 FR 13498, 13560. In that guidance, EPA indicated its 
interpretation that potentially available measures that would not 
advance the attainment date for an area would not be considered RACM. 
EPA also indicated in that guidance that states should consider all 
potentially available measures to determine whether they were 
reasonably available for implementation in the area, and whether they 
would advance the attainment date. Further, states should indicate in 
their SIP submittals whether measures considered were reasonably 
available or not, and if measures are reasonably available they must be 
adopted as RACM. Finally, EPA indicated that states could reject 
measures as not being RACM because they would not advance the 
attainment date, would cause substantial widespread and long-term 
adverse impacts, would be economically or technologically infeasible, 
or would otherwise be inappropriate for local reasons, including costs. 
The EPA also issued a 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.
    When EPA presented its statutory argument in support of its RACM 
policy to the U.S. Court of Appeals for the DC Circuit in defense of 
its approval of the Washington, DC, ozone SIP, the DC Circuit found 
reasonable EPA's interpretation that measures must advance attainment 
to be RACM. Sierra Club v. EPA, 294 F.3d 155, 162 (D.C.Cir. 2002). 
Specifically, the Court found that:

    EPA reasonably concluded that because the Act ``use[s] the same 
terminology in conjunction with the RACM requirement'' as it does in 
requiring timely attainment, compare 42 U.S.C. Sec.  7502(c)(1) 
(requiring implementation of RACM ``as expeditiously as practicable 
but no later than'' the applicable attainment deadline), with id. 
Sec.  7511(a)(1) (requiring attainment under same constraints), the 
RACM requirement is to be understood as a means of meeting the 
deadline for attainment.

Id. Morever, the D.C. Circuit rejected, as a ``misreading of both text 
and context,'' Sierra Club's arguments that EPA's interpretation of 
RACM conflicts with the Act's text and purpose and lacks any rational 
basis. The D.C. Circuit also found reasonable EPA's interpretation that 
it could consider costs in a RACM analysis and that measures may be 
rejected if they would require an intensive and costly effort for 
regulation of many small sources. Sierra Club v. EPA, 294 F.3d at 
162,163.

VI. What Are the Relevant Policy and Guidance Documents?

    This proposal has cited several policy and guidance memoranda. The 
documents and their location on EPA's web site are listed below; these 
documents will also be placed in the docket for this proposal action.

Relevant Documents

    1. ``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 (file name: ``ADDWOE1H'').
    2. ``Serious and Severe Ozone Nonattainment Areas: Information on 
Emissions, Control Measures Adopted or Planned and Other Available 
Control Measures.'' November 24, 1999. OAQPS. U.S. EPA, RTP, NC.
    3. Memorandum, ``Guidance on Motor Vehicle Emissions Budgets in 
One-Hour Attainment Demonstrations,'' from Merrylin Zaw-Mon, Office of 
Mobile Sources, to the Air Division Directors, Regions I-VI. November 
3, 1999. Web site: http://www.epa.gov/oms/transp/trafconf.html.
    4. Memorandum from Lydia Wegman and Merrylin Zaw-Mon to the Air 
Division Directors, Regions I-VI, ``1-Hour Ozone Attainment 
Demonstrations and Tier 2/Sulfur Rulemaking.'' November 8, 1999. Web 
site: http://www.epa.gov/oms/transp/trafconf.html.
    5. Memorandum from John Seitz, Director, Office of Air Quality 
Planning and Standards, ``Mid-Course Review Guidance for the 1-Hour 
Ozone Nonattainment Areas that Rely on Weight-of-Evidence for 
Attainment Demonstration.'' Web site: http://www.epa.gov/scram001/tt25.htm (file name: ``MCRGUIDE'').
    6. Memorandum, ``Guidance to Clarify EPA's Policy on What 
Constitutes ``As Expeditiously as Practicable'' for Purposes of 
Attaining the One-Hour Ozone Standard for Serious and Severe Ozone 
Nonattainment Areas.'' John S. Seitz, Director, Office of Air Quality 
Planning and Standards. November 1999. Web site: http://www.epa.gov/ttn/oarpg/t1pgm.html.
    7. U.S. EPA, (1991), Guideline for Regulatory Application of the 
Urban Airshed Model, EPA-450/4-91-013, (July 1991). Web site: http://www.epa.gov/ttn/scram/ (file name: ``UAMREG'').
    8. U.S. EPA, (1996), Guidance on Use of Modeled Results to 
Demonstrate Attainment of the Ozone NAAQS, EPA-454/B-95-007, (June 
1996). Web site: http://www.epa.gov/ttn/scram/ (file name: ``O3TEST'').
    9. Memorandum, ``Ozone Attainment Demonstrations,'' from Mary D. 
Nichols, issued March 2, 1995. Web site: http://www.epa.gov/ttn/oarpg/t1pgm.html.
    10. December 29, 1997 Memorandum from Richard Wilson, Acting 
Assistant Administrator for Air and Radiation ``Guidance for 
Implementing the 1-Hour Ozone and Pre-Existing PM10 NAAQS.'' Web site: 
http://www.epa.gov/ttn/oarpg/t1pgm.html.

VII. How Does the New Hampshire Submittal Satisfy the Framework?

    This section provides a review of New Hampshire'' submittal and an 
analysis of how this submittal satisfies the framework discussed in 
Section V. of this notice.

A. What Did the State Submit?

    The attainment demonstration SIP submitted by the New Hampshire DES 
for the Boston-Lawrence-Worcester, MA-NH area includes a modeling 
analysis using the CALGRID model

[[Page 64589]]

which demonstrates attainment using the weight-of-evidence approach. 
This was submitted on June 30, 1998. The SIP was subject to public 
notice and comment and a hearing was held on June 1, 1998. Information 
on how the photochemical grid modeling meets EPA guidance is summarized 
below.

B. How Was the Photochemical Grid Modeling Conducted?

    The one-hour attainment demonstration submitted by New Hampshire is 
for both the New Hampshire portion of the Boston-Lawrence-Worcester, 
MA-NH ozone nonattainment area as well as the New Hampshire Portsmouth-
Dover-Rochester serious area.\12\ EPA is only acting on the attainment 
demonstration as it applies to the New Hampshire portion of the Boston-
Lawrence-Worcester, MA-NH nonattainment area.
---------------------------------------------------------------------------

    \12\ The Portsmouth-Dover-Rochester serious area attained the 
one-hour ozone standard by its statutory attainment date. In June 
1999, EPA issued a final rule determining that the one-hour ozone 
standard no longer applied (64 FR 30911). EPA has since reinstated 
the standard. However, Portsmouth-Dover-Rochester continues to 
qualify, based on recent air quality data, as a clean data area 
under the EPA policy related to ozone nonattainment areas meeting 
the one-hour ozone NAAQS (May 10, 1995) and the attainment 
demonstration requirement is deferred pending redesignation.
---------------------------------------------------------------------------

    The key element of the attainment demonstration is the 
photochemical grid point modeling required by the CAA. The New 
Hampshire attainment demonstration submittal used the CALGRID model 
which was approved for use by EPA since it was found to be at least as 
effective as the guideline model which is UAM-IV. The modeling domain 
for CALGRID extends from southwest Connecticut, northward 340 km to 
northern Vermont, and eastward to east of Nantucket, Massachusetts. For 
the Boston-Lawrence-Worcester, MA-NH ozone nonattainment area, the 
domain meets EPA guidance since it contains adequate areas both upwind 
and downwind of the nonattainment area. The domain also includes the 
monitors with the highest measured peak ozone concentrations in 
Massachusetts and coastal Maine and New Hampshire. Since the original 
modeling was done for a much larger domain that includes not only all 
of the Boston-Lawrence-Worcester, MA-NH ozone nonattainment area but 
also includes all of Rhode Island, most of Connecticut, all of 
Massachusetts, southern Vermont, and most of southern Maine, the 
CALGRID model has several ``source'' areas and several receptor areas. 
The receptor area of importance for the New Hampshire SIP submittal is 
the Boston-Lawrence-Worcester, MA-NH ozone nonattainment area. For the 
purposes of this notice, only model results in this geographic area 
will be used, unless otherwise noted. As shown below, EPA believes the 
modeling portion of the attainment demonstration meets EPA guidance.
    The model was run for 10 days during four distinct episodes (August 
14-17, 1987, June 21-22, 1988, July 7-8, 1988 and July 10-11, 1988). 
These episodes represent a variety of ozone conducive weather 
conditions, and also include the three worst ranked ozone episodes 
(1987 to 1998) for the domain. The episodes selected reflect days with 
high measured ozone in a variety of areas within the entire domain. 
This is because, as stated above, the domain covers several 
nonattainment areas, and in order to model the meteorology that causes 
high ozone, several different episodes were needed. The model results 
for the first day of each episode are not used for attainment 
demonstration purposes, because they are considered ``ramp-up days.'' 
Ramp-up days help reduce impacts of initial conditions; after ramp-up 
days, model results are more reflective of actual emissions being 
emitted into the atmosphere. Since the first day of each episode was 
not considered, this leaves six days for strategy assessment. August 
16, 1987 was also not used for strategy assessment. This leaves five 
strategy days: August 15, 1987; August 17, 1987; June 22, 1988; July 8, 
1988 and July 11, 1988.
    The CALGRID model was run using the CALMET meteorological 
processor. This processor took actual meteorological data collected by 
the National Weather Service and the State Air Pollution Agencies and 
using extrapolation and other analysis techniques provided winds, 
temperatures and other meteorological parameters at approximately 400 
specific grid points for each hour of the episode at up to 14 levels 
(i.e., from the surface to top of the model which is about 5000 feet). 
CALMET is described in detail in the New Hampshire attainment 
demonstration, and was approved by EPA for use in the CALGRID modeling 
system.
    The CALGRID model was run with emissions data prepared by EPA 
Region I and/or a contractor working with EPA Region I. The data were 
taken from the EPA Aerometric Informational Retrieval System (AIRS) 
data base in late 1993 and reflect the emission data supplied from the 
six New England States. The emission data for the small portion of New 
York state that forms the western edge of the domain was supplied by 
New York. EPA Region I quality assured all the New England AIRS data, 
the New York supplied data and all necessary modifications to the data. 
The data was further processed through the Emissions Preprocessor 
System (EPS Version 2.0). To more accurately model ozone in New 
England, day specific emissions were simulated for on-road mobile 
sources (cars, trucks, buses, etc.), and for large fossil-fueled fired 
power plants in New England. The base case CALGRID model is consistent 
with EPA guidance on model performance.
    Future emissions were projected to 1999 and 2007 accounting for 
both emission increases due to industrial growth, population growth and 
growth in the number of miles traveled by cars, as well as emission 
reductions due to cleaner gasoline, cleaner cars and controls on 
industrial pollution. Growth factors were derived using the EPA-
approved Bureau of Economic Analysis (BEA) factors and all the 
emissions were processed using the EPS 2.0 system.
    Model runs were also performed for the year 2007. The runs employed 
2007 emission estimates inside the New England Domain, along with 
boundary conditions files reflecting EPA's NOX SIP Call 
emission estimates in upwind areas. Year 2007 emissions estimates for 
the states inside the modeling domain reflected EPA's NOX 
SIP call as well as other federal and state control strategies being 
implemented by the beginning of the 2007 ozone season. This was 
accomplished using a two-step process. The first step was to project 
emissions using growth factors to account for increases or decreases in 
economic activity by industrial sector. In general, the states 
projected their emissions using the same growth factors that were used 
in the OTAG modeling effort. The second step involved applying control 
factors to source categories that would be regulated by the year 2007. 
States used a combination of information for control levels: those used 
for the OTAG modeling effort, and state-specific information relating 
to the effectiveness of control programs planned or in place. These 
2007 emission estimates did not, however, include the Tier 2/Gasoline 
Sulfur program that was subsequently adopted by EPA on February 10, 
2000 (65 FR 6698).

C. What Are the Conclusions From the Modeling?

    EPA guidance for approval of the modeling aspect of a one-hour 
ozone attainment demonstration is to use the one-hour ozone grid 
modeling to apply one of two modeled attainment tests (deterministic or 
statistical) with optional weight of evidence analyses to

[[Page 64590]]

supplement the modeled attainment test results when the modeled 
attainment test is failed. Neither the 1999 or 2007 modeling performed 
for the Boston-Lawrence-Worcester, MA-NH ozone nonattainment area shows 
attainment of the one-hour ozone standard (0.124 parts per million) at 
every grid cell for every hour of every strategy day modeled (August 
15, 1987; August 17, 1987; June 22, 1988; July 8, 1988 and July 11, 
1988). The maximum predicted base case concentration in the Boston-
Lawrence-Worcester, MA-NH ozone nonattainment area for the modeled 
episodes is 0.230 ppm, for the August 15, 1987 episode. The strategy 
run for this episode shows a future value in 1999 of 0.186 ppm. For the 
July 1988 episodes, which are modeled for both 1999 and 2007, New 
Hampshire looked at the predicted peaks for 1999 and 2007 in the 
portion of the modeling domain directly influenced by New Hampshire 
emissions (i.e., southern New Hampshire and northeastern 
Massachusetts). Those peaks remain above the one-hour ozone standard, 
with a peak concentration of 0.188 ppm in 1999, and 0.177 ppm in 2007. 
None of the future case strategy modeling runs pass the strict 
deterministic test. Since the CALGRID model, as run for the Boston-
Lawrence-Worcester, MA-NH ozone nonattainment area, does not pass the 
strict deterministic attainment test, additional weight of evidence 
analyses are performed. When these additional weight of evidence 
analyses are considered, attainment is demonstrated for the Boston-
Lawrence-Worcester, MA-NH area.
    The paramount element in the New Hampshire weight of evidence 
analysis is the actual air quality monitoring data. The air quality 
monitoring data show that the area attained the one-hour NAAQS in 1998, 
based on 1996-1998 ozone data. The area remained in attainment until 
the summer of 2001. In the summer of 2001, the violations of the 
standard occurred to the south of New Hampshire. Both trajectory 
analyses and zero-out model runs show that the source regions for these 
violations is not New Hampshire, and there is nothing New Hampshire can 
do to eliminate or reduce these violations. This information is, in 
itself, enough to pass a weight-of-evidence test. However, for 
thoroughness, EPA analyzed more information.
    Another element in a weight of evidence analysis is use of the 
model predicted change in ozone to estimate a future air quality design 
value. This uses the air quality modeling in a relative sense. An 
analysis of the modeled ozone data, from the CALGRID model used in the 
New Hampshire attainment demonstration, in conjunction with monitored 
air quality data shows that, with the planned emission reductions in 
the two precursor emissions (VOC and NOX), ground-level 
ozone concentrations will be below the ambient standard by the 2007 
attainment date.
    More specifically, EPA used the New Hampshire attainment 
demonstration in a relative sense to estimate a future design value. 
EPA compared base case CALGRID runs to future case CALGRID runs to 
estimate the improvement in ozone air quality levels between the base 
and future cases. Four strategy days (August 15 and 17 1987; July 8, 
1988 and July 11, 1988)\13\ are used in this analysis, which compared 
the improvement in modeled air quality between the base and future 
modeling cases. The following procedure is applied. First, base case 
CALGRID runs are examined to discern the maximum one-hour ozone 
concentration modeled in the area of concern, in this case a large area 
to the north of Boston. This is the only area which New Hampshire has 
any chance of affecting during meteorological conditions that result in 
one-hour ozone exceedances in New England. The four strategy days are 
all examined. Next, the same area is used to determine future modeled 
ozone values. The modeled maximum results of the four strategy days are 
averaged and a reduction factor calculated from the base case to the 
future case. This reduction factor represent the amount of ozone 
reduced in this area, as the result of the emission reductions modeled. 
This reduction factor is used to adjust the average ozone design value 
for this part of the model domain, as monitored between 1985 and 1990. 
This monitored design value represent both the base case model years of 
1987 and 1988 and also the design values used in 1991 to classify one-
hour nonattainment areas.
---------------------------------------------------------------------------

    \13\ The June 22, 1988 strategy day is not used because of 
problems re-analyzing the base case model run for this episode.
---------------------------------------------------------------------------

    This analysis shows that air quality design values can reasonably 
be expected to be reduced below 0.124 ppm based on continued additional 
reductions within the domain (e.g., areas in CT, RI and MA) and 
reductions upwind, reflected in the future year boundary conditions. 
Furthermore, the emissions sensitivity modeling performed by the State 
of New Hampshire indicates that ozone reductions from emission 
reductions within the New England domain will be greater when boundary 
conditions become cleaner. So emission reductions from future programs 
like the Tier 2/sulfur gasoline program and the NOX SIP call 
will further aid in achieving attainment of the one-hour ozone standard 
within the nonattainment area.
    In addition to this analysis performed by EPA, the New Hampshire 
DES ozone attainment demonstration also contains a future design value 
analysis which shows similar results. The New Hampshire DES used a 
different set of design values than the EPA analysis. The New Hampshire 
DES analysis used 1995-1997 design values for all of the ozone monitors 
in New Hampshire. For each monitor, New Hampshire DES calculated the 
percent improvement in air quality necessary to bring these monitors 
into attainment of the NAAQS. Then, using the 1999 and 2007 CALGRID 
modeling runs for the July 8 and July 11 episode,\14\ the New Hampshire 
DES calculated the percent improvement between 1999 and 2007. If this 
percent model improvement is greater than the improvement needed to 
achieve the one-hour ozone NAAQS, then the New Hampshire DES contends 
that attainment is shown. The results of the analysis show that New 
Hampshire can achieve attainment of the one-hour standard by 2007. This 
analysis by the New Hampshire DES adds to the weight of evidence.
---------------------------------------------------------------------------

    \14\ Only the July 8 and 11 episode are included in this 
analysis because of the limited availability of appropriate 2007 
boundary condition for the other episodes.
---------------------------------------------------------------------------

    In summary, the CALGRID modeling submitted by the New Hampshire DES 
for the New Hampshire portion of the Boston-Lawrence-Worcester, MA-NH 
ozone nonattainment area, when analyzed using the future design value 
approach, shows attainment of the one-hour NAAQS will be achieved by 
2007. This modeling is consistent with EPA guidance. Other information, 
which provides additional favorable evidence that the Boston-Lawrence-
Worcester, MA-NH area, will attain in 2007, are the ambient ozone data 
trends, a trajectory analysis of exceedance days in the area, and zero-
out modeling for New Hampshire.

D. Do the Ambient Ozone Data Show Any Trends?

    In total, there are 11 ozone air quality monitors in the Boston-
Lawrence-Worcester, MA-NH nonattainment area that have data from 1999-
2001, ten in Massachusetts and only one in New Hampshire. They are in 
the Massachusetts cities and towns of Boston (two sites), Easton, 
Fairhaven, Lawrence, Lynn, Newbury, Stow, Truro, and Worcester, and 
Nashua, New

[[Page 64591]]

Hampshire. All of the monitors show attainment with the one-hour ozone 
NAAQS for the period 1999-2001, except for the Fairhaven and Truro, MA 
sites.
    The original serious classification of the nonattainment area was 
based on data from the 1987 through 1989 time period. Since then and 
including 2001 ozone data, the latest available quality assured ozone 
data for the area, all 11 sites show a decrease in ozone due to 
emission reductions, both within Massachusetts and New Hampshire and 
also upwind. The monitoring sites north of the city of Boston are 
showing the greatest decline. For example, the one-hour ozone design 
value for the site in Newbury has dropped from 0.139 ppm in 1989 to 
0.112 ppm in 2001, a drop of 19 percent. At the Nashua, NH site, the 
only site in the nonattainment area in New Hampshire, the design value 
has dropped from 0.121 ppm in 1989 to 0.103 ppm in 2001, a drop of 15 
percent.
    If we look at three additional monitors downwind of the Boston-
Lawrence-Worcester, MA-NH serious ozone nonattainment area, we see 
similar downward trends. The three monitors are Rye, NH, Kennebunkport, 
ME and Cape Elizabeth, ME. At the Rye, NH site, the design value has 
dropped from 0.156 ppm in 1989 to 0.123 ppm in 2001, a drop of 21 
percent. At the Kennebunkport, ME site, the design value has dropped 
from 0.152 ppm in 1989 to 0.120 ppm in 2001, also, a drop of 21 
percent. At the Cape Elizabeth, ME site the design value has dropped 
from 0.156 ppm in 1989 to 0.111 ppm in 2001, a drop of 29 percent. 
These substantial decreases in ozone are the result of emission 
reductions both within the tri-state area of Massachusetts, New 
Hampshire and Maine, as well as reduction in longer-range transport 
emissions from upwind areas.
    At the two eastern Massachusetts monitors recording violations of 
the ozone standard in 2001 (i.e., Fairhaven and Truro, Massachusetts), 
the ozone trend is also downward. These two sites are in the extreme 
southern portion of the Boston-Lawrence-Worcester, MA-NH serious ozone 
nonattainment area, and were monitoring attainment until the summer of 
2001. At the Fairhaven, MA site, the one-hour ozone design value has 
dropped from 0.150 ppm in 1989 to 0.125 ppm in 2001, a drop of 17 
percent. This site is not in attainment, based on 1999-2001 ozone data. 
At the Truro, MA site, the one-hour design value has dropped from 0.146 
ppm in 1989 to 0.138 ppm in 2001, for a drop of 5 percent. This site, 
too, is not in attainment, based on 1999-2001 ozone data. Furthermore, 
preliminary ozone data for the Boston-Lawrence-Worcester, MA-NH area 
collected during the summer of 2002, a hot summer, show that of the 11 
monitors that have recorded ozone data for the past three years, only 
the Truro, MA monitor has an ozone design value of 0.125 ppm or above. 
Truro's preliminary design value for 2000-2002 is 0.130 ppm, a drop of 
0.008 ppm from 2001. During 2000-2002, the fifth highest value at the 
Truro site is below the level of the one-hour ozone standard.
    Based on the overall downward trend in one-hour ozone 
concentrations in this area, and because precursor emissions are 
projected to keep falling, both within the nonattainment area and 
upwind from it, there is no reason to believe that the downward trend 
in ozone concentrations will not continue over the near term, based on 
the projected emission reductions. The future emission reductions will 
be a result of the following: continued benefits from tighter standards 
on vehicles due to fleet turnover (California Low Emission Vehicles (CA 
LEV) in Massachusetts and New York and National Low Emission Vehicles 
in New Hampshire and other upwind areas); the reductions from large 
point sources due to the OTC NOX Budget Program and EPA's 
NOX SIP call; other federal control measures such controls 
on non-road engines; and the Tier 2 vehicle and low sulfur gasoline 
program.

E. What Do the Zero-Out Model Runs Show?

    The State of New Hampshire performed many emission sensitivity 
model runs for the four ozone episodes (August 15-17, June 22, July 8 
and July 11). A sensitivity run is a model run to determine how the 
model reacts to certain controlled changes to one of its inputs. An 
emission sensitivity run shows how the model reacts to changes in 
anthropogenic ozone precursor emissions (VOC, NOX and carbon 
monoxide (CO)). For example, how does the CALGRID model respond to a 
drop in ozone precursor emissions of 50 percent. Some of the most 
useful, although not achievable in actuality, of these emission 
sensitivity runs are the so-called zero-out runs, where instead of 
lowering emissions by 50 or 75 percent, the emissions are completely 
eliminated from within a certain portion of the domain (i.e., the 
anthropogenic emissions are set to zero). The CALGRID zero-out runs 
(model runs that assume no anthropogenic emissions in a given area) 
show that when the anthropogenic ozone precursor emissions (VOC, 
NOX and Carbon monoxide (CO)) are set to zero in the State 
of New Hampshire for each of the four episodes modeled, there is no 
change in predicted ozone in the Cape Cod and southeastern 
Massachusetts region. The model does show decreases in ozone 
concentrations along the New Hampshire coast and over inland sections 
of New Hampshire and Maine, and in northeastern Massachusetts, but no 
change over Cape Cod and southeastern Massachusetts, the portion of the 
nonattainment area still recording ozone violations. This is to be 
expected on these days since the surface winds were primarily blowing 
from the southwest toward the northeast. But to have this shown 
definitively by the CALGRID model is important, because it adds to the 
argument that there is nothing more New Hampshire can do to lower ozone 
concentrations over southeastern Massachusetts, and nothing New 
Hampshire can presently do to advance the attainment date of the 
nonattainment area. To achieve attainment throughout the entire Boston-
Lawrence-Worcester, MA-NH ozone nonattainment area, New Hampshire is 
beholden to emissions reductions from other states.

F. What Do the Trajectory Analyses Show?

    One question that the zero-out modeling runs discussed above, do 
not answer is ``Does New Hampshire contribute to ozone exceedances on 
Cape Cod on other days not modeled?'' In order to answer this question, 
EPA looked at all days on which there were exceedances of the one-hour 
ozone standard on Cape Cod, in southeastern Massachusetts, and/or in 
Rhode Island, over the last three years when we have quality assured 
and quality controlled ozone data (1999-2001). This area encompasses 
the ozone monitoring sites in Truro, MA; Fairhaven, MA; Narragansett, 
RI; East Providence, RI; and West Greenwich, RI. The exceedance days at 
these sites during 1999-2001 are as follows: June 7, 1999, July 6, 
1999, July 16, 1999, June 10, 2000, June 30, 2001, July 25, 2001, 
August 7, 2001, and August 9, 2001. In order to determine the most 
probable source region of emissions for the exceedances measured on 
these days, EPA performed a trajectory analysis for each day.
    A trajectory is the path a parcel of air follows from point A to 
point B (e.g. from New York to Cape Cod). A backward trajectory is the 
reverse, where did a parcel of air come from (e.g., where did the ozone 
on Cape Cod most likely originate?)? The path and/or trajectory depends 
mostly on the wind

[[Page 64592]]

speed and direction, but other weather parameters do come into play, 
such as how sunny it is, and whether the air is rising or sinking as it 
moves. One way of determining trajectories is with trajectory models. 
The model EPA used to compute backward trajectories is the HYSPLIT-4 
(Hybrid Single-Particle Lagrangian Integrated Trajectory) model, 
developed by NOAA Air Resources Lab. Input meteorological data fields 
were from the National Centers for Environmental Prediction Eta Data 
Assimilation System. Details of this analysis are found in the 
technical support document for this action. EPA's trajectory analysis 
of the days with ozone exceedances at these sites (Truro, MA, 
Fairhaven, MA, Narragansett, RI, East Providence, RI and West 
Greenwich, RI) support the CALGRID modeling which shows that the most 
probable source region of the exceedances at these sites is southern 
New England and areas to the south and west of New England. In none of 
the cases modeled, do the HYSPLIT trajectories show New Hampshire as a 
probable source region for this ozone. This confirms the zero-out runs 
discussed above, and adds to the weight-of-evidence analysis.

G. Are the Causes of the Recent Violation Being Addressed?

    The Boston-Lawrence-Worcester, MA-NH ozone nonattainment area was 
in attainment for three consecutive, three-years periods from 1998-2000 
(i.e. 1996-1998, 1997-1999, and 1998-2000). As discussed above, the 
violation based on the three-year period from 1999-2001 occurred at two 
monitors in extreme southeastern Massachusetts. Based on zero-out 
modeling performed by the New Hampshire DES, the emissions that are 
causing these violations are not emanating from New Hampshire, but 
rather from sources near and upwind of these monitors.
    Massachusetts, the other state in this multi-state nonattainment 
area, has performed additional analyses with regard to the remaining 
violations in the Boston-Lawrence-Worcester, MA-NH nonattainment area. 
Those additional analyses were submitted to EPA by the Massachusetts 
DEP on September 6, 2002. Those additional analyses concluded that the 
emission reductions that upwind states will achieve under the 
NOX SIP Call, beginning in 2003, should help bring the area 
back into attainment. Massachusetts also analyzed how reductions from 
the EPA's Tier 2 vehicle and low sulfur gasoline program promulgated on 
February 10, 2000 (65 FR 6697) will benefit the area. In a separate 
action, EPA has proposed approval of the Massachusetts attainment 
demonstration for this nonattainment area based on the conclusion that 
attainment will be achieved in the future once scheduled federal and 
local control measures are implemented.
    Even though the upwind reductions are most critical in ensuring 
that this area is brought back into attainment, EPA notes that there 
are additional control strategies and emission reductions within New 
Hampshire that will not fully be implemented until 2003 and beyond. 
These measures include: the State of New Hampshire NOX 
budget and allowance trading program, additional reductions from fleet 
turn-over and non-road equipment turnover. These reductions will 
continue to help ensure that air quality improves in the area, and that 
maintenance of the ozone standard in southern New Hampshire is 
continued.

H. What Attainment Date Is Being Established for the Nonattainment 
Area?

    The Boston-Lawrence-Worcester, MA-NH area attained the one-hour 
ozone standard as of 1999, its statutory deadline under the CAA. 
Moreover, the Boston-Lawrence-Worcester, MA-NH nonattainment area 
continued to have air quality meeting the one-hour ozone standard until 
the 1999 through 2001 time period. In the Massachusetts DEP attainment 
demonstration supplement that was submitted to EPA on September 6, 
2002, Massachusetts provides evidence that the entire nonattainment 
area will once again attain by an attainment date of November 15, 2007, 
once a variety of scheduled control strategies are more fully 
implemented. In a separate action, EPA has proposed approval of the 
Massachusetts attainment demonstration for this nonattainment area and 
has proposed an attainment date of November 15, 2007. This attainment 
date will be for the entire nonattainment area including the New 
Hampshire portion.

I. What About the Mid-course Review?

    As discussed above, the Boston-Lawrence-Worcester, MA-NH ozone 
nonattainment area attained the ozone standard based on ozone data 
collected in 1997-1999 and 1998-2000, and is now violating the standard 
only in the southern portion of the multi-state nonattainment area, in 
Massachusetts. As described in EPA's proposed approval of the 
Massachusetts attainment demonstration for this area, the Massachusetts 
Department of Environmental Protection has committed to perform a mid-
course review for this area by December 31, 2004. As discussed above, 
EPA has concluded that based on ozone modeling and trajectory analyses 
performed by New Hampshire DES and EPA, that New Hampshire emissions 
are not contributing to the continued violations in the nonattainment 
area. Nevertheless, New Hampshire in its attainment demonstration SIP 
submittal has committed to ``work with neighboring states and EPA 
Region I to determine the magnitude and geographic location of emission 
reductions required in order to most effectively attain and maintain 
ozone attainment for the 1-hour and then the 8-hour ozone standards.'' 
EPA interprets this to mean that New Hampshire will work with 
Massachusetts in performing a mid-course review for this area by 
December 31, 2004. EPA believes this mid-course review will be 
sufficient to determine if the nonattainment area's control strategy is 
resulting in emission reductions and air quality improvements needed to 
attain the ozone standard in the nonattainment area as expeditiously as 
practicable.

J. What About the Requirement for RACM?

    The EPA has reviewed the SIP submittal for the New Hampshire 
portion of the Boston-Lawrence-Worcester, MA-NH ozone nonattainment 
area to determine if it includes sufficient documentation concerning 
available RACM measures. In its June 30, 1998 attainment demonstration, 
New Hampshire DES describes the control measures that it is 
implementing to assure attainment. New Hampshire DES also analyzes how 
effective additional VOC and NOX reductions in various parts 
of the modeling domain would be at reducing predicted elevated 
concentrations of ozone.
    As explained above, the analyses done by the New Hampshire DES 
included ``zero-out'' modeling runs for five separate episode days. In 
these model runs, all New Hampshire anthropogenic emissions of 
NOX and VOC are removed from the analysis. Those ``zero-
out'' modeling runs shows the contribution that New Hampshire 
anthropogenic emissions have to various parts of the modeling domain. 
As explained above, ozone monitoring data from 1999 through 2001 for 
the Boston-Lawrence-Worcester, MA-NH ozone nonattainment area shows 
that only ozone monitors in extreme southeastern Massachusetts 
currently violate the one-hour ozone NAAQS. A look at those ``zero-
out'' modeling runs

[[Page 64593]]

with this in mind shows that even if the State of New Hampshire 
eliminated all anthropogenic sources of ozone precursors 
(NOX and VOC), there would be no impact to the area in 
southeastern Massachusetts still recording NAAQs violations.
    Furthermore, EPA performed a trajectory analysis of each of the 
days during 1999 through 2001 when exceedances of the one-hour ozone 
NAAQS were monitored in the Boston-Lawrence-Worcester, MA-NH ozone 
nonattainment area. That analysis shows that the source region for 
these exceedances is southern New England and areas to the south and 
west of New England. None of the trajectories implicate the State of 
New Hampshire.
    Therefore, EPA concludes based on the available information, that 
there are no additional emission control measures in New Hampshire that 
will advance the attainment date for the New Hampshire portion of the 
Boston-Lawrence-Worcester, MA-NH ozone nonattainment area. Thus no 
potential measure can be considered RACM for purposes of section 
172(c)(1) for southern New Hampshire for its one-hour ozone attainment 
demonstration. The EPA therefore proposes that the New Hampshire SIP 
meets the requirements for RACM.
    Although EPA does not believe that section 172(c)(1) requires 
implementation of additional measures for this area, this conclusion is 
not necessarily valid for other areas.

K. What About Motor Vehicle Emissions Budgets?

    New Hampshire's 15 percent plan submitted on February 3, 1994 
included a year 1996 VOC motor vehicle emissions budget of 17.96 tons 
per summer day. On September 27, 1996 New Hampshire submitted its post-
1996 plan which included a more stringent 1999 VOC motor vehicle 
emissions budgets of 16.56 tons per summer day VOC, as well as 
identified a new NOX budget of 22.96 tons per summer day of 
NOX. These 1999 motor vehicle emissions budgets were 
formally determined adequate by EPA New England for use in 
transportation conformity on April 29, 1999. Subsequent to the rate-of-
progress SIPs, on June 30, 1998, New Hampshire submitted its ozone 
attainment demonstration to EPA which establishes motor vehicle 
emissions budgets for both VOC and NOX for 2003. The 2003 
VOC and NOX budgets (10.72 tons per summer day and 21.37 
tons per summer day respectively) established by the New Hampshire 
ozone attainment demonstration were formally determined adequate by EPA 
on August 19, 1998. These budgets are currently the controlling budgets 
for conformity determinations for 2003 and later years because the 2003 
MVEBs are more stringent than the 1999 budget.
    New Hampshire's current level of VOC and NOX emissions 
are consistent with a level required to attain and maintain the one-
hour ozone NAAQS in New Hampshire and downwind areas. No ozone monitor 
in the New Hampshire portion of the Boston-Lawrence-Worcester, MA-NH 
serious ozone nonattainment area has experienced a violation of the 
one-hour ozone NAAQS since the three year period from 1996-1998. 
Additional VOC and NOX emission reductions within the New 
Hampshire portion of the nonattainment area would not likely speed up 
attainment in the nonattainment area nor reduce elevated ozone levels 
measured in southeastern Massachusetts, the portion of the 
nonattainment area that still violates the one-hour ozone standard. 
This conclusion is justified by the zero-out modeling and trajectory 
analysis discussed above.
    The 2003 MVEBs adopted by the State of New Hampshire are lower than 
the current level of motor vehicle emissions estimated in the New 
Hampshire portion of the Boston-Lawrence-Worcester, MA-NH nonattainment 
area.\15\ While the 2003 MVEBs are not as stringent as the currently 
projected 2007 motor vehicle emissions for the area,\16\ the motor 
vehicle emission budgets must only demonstrate that its emission level 
is sufficient to attain and maintain the one-hour NAAQS for ozone. For 
example, the projected 2007 motor vehicle emission levels can have an 
additional quantity of ``safety margin'' emissions to accommodate 
future growth added to them to create the attainment-level motor 
vehicle emission budgets, provided that the area continues to 
demonstrate attainment. The important criteria is that the motor 
vehicle emission level established in the attainment demonstration, 
when added to the stationary, area and other mobile sources are 
consistent with attainment of the one-hour NAAQS for ozone.
---------------------------------------------------------------------------

    \15\ New Hampshire estimated motor vehicle source emissions in 
the area for 2002 to be 11.99 tons per summer day of VOC and 26.02 
tons per summer day of NOX. The estimates were done using 
MOBILE6 and estimated vehicle miles traveled (VMT) data for 2002.
    \16\ New Hampshire estimated motor vehicle source emissions in 
the area for 2007 to be 8.84 tons per summer day of VOC and 19.31 
tons per summer day of NOX The estimates were also done 
using MOBILE6 and used estimated 2007 VMT data as well control 
strategies expected to be in place in 2007 including EPA's Tier 2/
Sulfur gasoline program.
---------------------------------------------------------------------------

    Since New Hampshire's current level of VOC and NOX 
emissions are consistent with a level required to attain the one-hour 
ozone NAAQS, the lower 2003 MVEBs adopted by the State of New Hampshire 
represent acceptable attainment-level MVEBs with a safety margin 
included. Since the State of New Hampshire has such discretion when 
setting motor vehicle emissions budgets provided its budgets are 
consistent with the measures in the SIP, EPA is proposing to approve 
the budgets submitted by New Hampshire. The attainment-level MVEBs are 
shown in Table 3 below.

 Table 3.--Attainment-Level Emissions Budgets for On-road Mobile Sources
                      in tons per summer day (tpsd)
------------------------------------------------------------------------
                                         Attainment VOC   Attainment NOX
                 Area                        budget           budget
------------------------------------------------------------------------
New Hampshire portion of the Boston-              10.72            21.37
 Lawrence-Worcester, MA-NH area.......
------------------------------------------------------------------------

    By letter dated August 19, 1998, we informed New Hampshire that the 
motor vehicle emissions budgets contained within the state's ozone 
attainment demonstration were adequate for conformity purposes. Since 
that time, New Hampshire has been required to use these budgets in 
conformity. This notice proposes to approve the attainment-level motor 
vehicle emissions budgets into the SIP. Once New Hampshire's attainment 
demonstration is finally approved by EPA and an attainment date of 
November 15, 2007 is established for the entire nonattainment area, New 
Hampshire will be required to use 2007 as a milestone year in future 
transportation conformity determinations.

[[Page 64594]]

L. What Are the Contingency Measures for This Area?

    The EPA believes the contingency measure requirements of sections 
172(c)(9) and 182(c)(9) of the CAA are independent requirements from 
the attainment demonstration requirements under sections 172(c)(1) and 
182(c)(2)(A) and the rate-of-progress (ROP) requirements under sections 
172(c)(2) and 182(c)(2)(B). The contingency measure requirements are to 
address the event that an area fails to meet a ROP milestone or fails 
to attain the ozone NAAQS by the attainment date established in the 
SIP. The contingency measure requirements have no bearing on whether a 
state has submitted a SIP that projects attainment of the ozone NAAQS 
or the required ROP reductions toward attainment. The attainment or ROP 
SIP provides a demonstration that attainment or ROP requirements ought 
to be fulfilled, but the contingency measure SIP requirements concern 
what is to happen only if attainment or ROP is not actually achieved. 
The EPA acknowledges that contingency measures are an independently 
required SIP revision, but does not believe that submission of 
contingency measures is necessary before EPA may approve an attainment 
or ROP SIP.\17\ New Hampshire remains obligated to submit the 
contingency measures required by 172(c)(9) and 182(c)(2)(A), but EPA 
may approve this attainment demonstration at this time even though they 
have not yet done so.
---------------------------------------------------------------------------

    \17\ The U.S. Court of Appeals for the D.C. Circuit recently 
addressed this issue in the context of a challenge to the Washington 
D.C. ozone attainment demonstration SIP, and concluded that 
contingency measures were required as part of an attainment 
demonstration SIP. See Sierra Club v. EPA, 294 F.3d 155, 164 
(D.C.Cir. 2002). However, EPA believes that the court misconstrued 
the statute, and declines to follow the court's reasoning outside of 
the D.C. Circuit. EPA believes that the statute does not compel 
contingency measures as part of attainment demonstration SIPs 
because they are required as a separate submission under a separate 
statutory provision. See CAA sections 172(c)(9) and 182(c)(2).
---------------------------------------------------------------------------

VIII. Proposed Action

    EPA is proposing to fully approve as meeting CAA section 182(c)(2) 
the ground-level one-hour ozone attainment demonstration State 
Implementation Plan for the New Hampshire portion of the Boston-
Lawrence-Worcester, MA-NH ozone nonattainment area submitted by New 
Hampshire on June 30, 1998, as demonstrating that the area will attain 
the one-hour ozone standard. We are also proposing that no potential 
measures can be considered RACM for New Hampshire for purposes of 
section 172(c)(1). This notice also proposes to approve the attainment-
level motor vehicle emissions budgets submitted by New Hampshire into 
the SIP.
    EPA is soliciting public comments on the issues discussed in this 
proposal. These issues will be considered before EPA takes final 
action. Interested parties may participate in the Federal rulemaking 
procedure by submitting written comments to the EPA Regional office 
listed in the ADDRESSES section of this action.
    A more detailed description of the state submittal and EPA's 
evaluation are included in a Technical Support Document (TSD) prepared 
in support of this rulemaking action. A copy of the TSD is available 
upon request from the EPA Regional Office listed in the ADDRESSES 
section of this document.

IX. Administrative Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this 
action is not a ``significant regulatory action'' and therefore is not 
subject to review by the Office of Management and Budget. For this 
reason, this action is also not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001). This action 
merely approves state law as meeting Federal requirements and imposes 
no additional requirements beyond those imposed by state law. 
Accordingly, the Administrator certifies that this rule will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this rule approves pre-existing requirements under state law and does 
not impose any additional enforceable duty beyond that required by 
state law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4).
    This rule also does not have tribal implications because it will 
not have a substantial direct effect on one or more Indian tribes, on 
the relationship between the Federal Government and Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
Government and Indian tribes, as specified by Executive Order 13175 (65 
FR 67249, November 9, 2000). This action also does not have Federalism 
implications because it does not have substantial direct effects on the 
states, on the relationship between the national government and the 
states, or on the distribution of power and responsibilities among the 
various levels of government, as specified in Executive Order 13132 (64 
FR 43255, August 10, 1999), because it merely approves a state rule 
implementing a federal standard, and does not alter the relationship or 
the distribution of power and responsibilities established in the Clean 
Air Act. This rule also is not subject to Executive Order 13045 
``Protection of Children from Environmental Health Risks and Safety 
Risks'' (62 FR 19885, April 23, 1997), because it is not economically 
significant.
    In reviewing SIP submissions, EPA's role is to approve state 
choices, provided that they meet the criteria of the Clean Air Act. In 
this context, in the absence of a prior existing requirement for the 
state to use voluntary consensus standards (VCS), EPA has no authority 
to disapprove a SIP submission for failure to use VCS. It would thus be 
inconsistent with applicable law for EPA, when it reviews a SIP 
submission, to use VCS in place of a SIP submission that otherwise 
satisfies the provisions of the Clean Air Act. Thus, the requirements 
of section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (15 U.S.C. 272 note) do not apply. This rule does not 
impose an information collection burden under the provisions of the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Intergovernmental 
relations, Nitrogen dioxide, Ozone, Volatile organic compounds.

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

    Dated: October 11, 2002.
Carl F. Dierker,
Acting, Regional Administrator, New England Region.
[FR Doc. 02-26709 Filed 10-18-02; 8:45 am]
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