[Federal Register Volume 77, Number 207 (Thursday, October 25, 2012)]
[Proposed Rules]
[Pages 65151-65164]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-26210]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 52 and 81

[EPA-R01-OAR-2012-0290; FRL-9744-1]


Approval and Promulgation of Implementation Plans and Designation 
of Areas for Air Quality Planning Purposes; New Hampshire; 
Redesignation of the Southern New Hampshire 1997 8-Hour Ozone 
Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to approve: the State of New Hampshire's 
request to redesignate the Boston-Manchester-Portsmouth (SE), New 
Hampshire moderate 8-hour ozone nonattainment

[[Page 65152]]

area to attainment for the 1997 8-hour ozone National Ambient Air 
Quality Standard (NAAQS); a State Implementation Plan (SIP) revision 
containing a 10-year maintenance plan for this area; a 2008 
comprehensive emissions inventory for the area; and new motor vehicle 
emissions budgets (MVEBs) for the years 2008 and 2022 that are 
contained in the 10-year ozone maintenance plan for this area. Finally, 
EPA is proposing to withdraw the SIP-approved 2009 MVEBs and replace 
them with the 2008 MVEBs included in the maintenance plan.

DATES: Written comments must be received on or before November 26, 
2012.

ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R01-OAR-2012-0290 by one of the following methods:
    1. www.regulations.gov: Follow the on-line instructions for 
submitting comments.
    2. Email: [email protected]
    3. Fax: (617) 918-0047.
    4. Mail: ``Docket Identification Number EPA-R01-OAR-2012-0290,'' 
Anne Arnold, U.S. Environmental Protection Agency, EPA New England 
Regional Office, 5 Post Office Square, Suite 100 (mail code: OEP05-2), 
Boston, MA 02109-3912.
    5. Hand Delivery or Courier. Deliver your comments to: Anne Arnold, 
Manager, Air Quality Planning Unit, Office of Ecosystem Protection, 
U.S. Environmental Protection Agency, EPA New England Regional Office, 
5 Post Office Square, Suite 100, Boston, MA 02109-3912. Such deliveries 
are only accepted during the Regional Office's normal hours of 
operation. The Regional Office's official hours of business are Monday 
through Friday, 8:30 to 4:30, excluding legal holidays.
    Instructions: Direct your comments to Docket ID No. EPA-R01-OAR-
2012-0290. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
www.regulations.gov, including any personal information provided, 
unless the comment includes information claimed to be Confidential 
Business Information (CBI) or other information whose disclosure is 
restricted by statute. Do not submit through www.regulations.gov or 
email, information that you consider to be CBI or otherwise protected. 
The www.regulations.gov Web site is an ``anonymous access'' systems, 
which means EPA will not know your identity or contact information 
unless you provide it in the body of your comment. If you send an email 
comment directly to EPA without going through www.regulations.gov, your 
email address will be automatically captured and included as part of 
the comment that is placed in the public docket and made available on 
the Internet. If you submit an electronic comment, EPA recommends that 
you include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses. For additional 
information about EPA's public docket visit the EPA Docket Center 
homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: All documents in the electronic docket are listed in the 
www.regulations.gov index. Although listed in the index, some 
information is not publicly available, i.e., CBI or other information 
whose disclosure is restricted by statute. Certain other material, such 
as copyrighted material, is not placed on the Internet and will be 
publicly available only in hard copy form. Publicly available docket 
materials are available either electronically in www.regulations.gov or 
in hard copy at Air Quality Planning Unit, Office of Ecosystem 
Protection, U.S. Environmental Protection Agency, EPA New England 
Regional Office, One Congress Street, 11th floor, (CAQ), Boston, MA 
02114-2023. EPA requests that if at all possible, you contact the 
person listed in the FOR FURTHER INFORMATION CONTACT section to 
schedule your inspection. The Regional Office's official hours of 
business are Monday through Friday, 8:30 to 4:30, excluding legal 
holidays.

FOR FURTHER INFORMATION CONTACT: Richard P. Burkhart, Air Quality 
Planning Unit, U.S. Environmental Protection Agency, EPA New England 
Regional Office, 5 Post Office Square, Suite 100, Boston, MA 02109-
3912, telephone number (617) 918-1664, fax number (617) 918-0664, email 
[email protected].
    In addition to the publicly available docket materials available 
for inspection electronically in the Federal Docket Management System 
at www.regulations.gov, and the hard copy available at the Regional 
Office, which are identified in the ADDRESSES section of this Federal 
Register, copies of the state submittal are also available for public 
inspection during normal business hours, by appointment at the State 
Air Agency: Air Resources Division, Department of Environmental 
Services, 6 Hazen Drive, P.O. Box 95, Concord, NH 03302-0095.

SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,'' 
``us,'' or ``our'' is used, we mean EPA.

Table of Contents

I. What is EPA proposing?
II. What is the background for these proposed actions?
    A. General Background
    B. What are the impacts of the December 22, 2006 and June 8, 
2007 United States Court of Appeals decisions regarding EPA's Phase 
I Implementation Rule?
III. What are the criteria for redesignation to attainment?
IV. What is EPA's analysis of the State's request?
    A. Has the Southern NH area has attained the 1997 8-hour ozone 
NAAQS?
    B. Has the State of New Hampshire met all applicable 
requirements of Section 110 and Part D and does the Southern NH area 
have a fully approved SIP under Section 110(k) of the CAA for 
purposes of redesignation to attainment?
    1. Requirements Under the 1997 8-Hour Ozone Standard
    2. Requirements Under the 1-Hour Ozone Standard
    3. Requirements of Section 110 and Part D of the CAA Applicable 
for Purposes of Redesignation for the 8-Hour NAAQS
    a. Section 110 and General SIP Requirements
    b. Part D SIP Requirements
    C. Are the air quality improvement in the Southern NH area is 
due to permanent and enforceable reductions in emissions?
    D. Does the Southern NH area have a fully approved maintenance 
plan pursuant to Section 175a of the CAA?
    1. Maintenance Plan Requirements
    2. EPA's Analysis of the Southern NH Maintenance Plan
    a. Attainment Emissions Inventory
    b. Maintenance Demonstration
    c. Monitoring Network
    d. Verification of Continued Attainment
    e. The Maintenance Plan's Contingency Measures
V. How are MVEBs developed and what is an adequacy determination?
VI. What is the status of EPA's adequacy determination for the 
area's MVEBs for 2022?
VII. Proposed Actions
VIII. Statutory and Executive Order Reviews

I. What is EPA proposing?

    EPA is proposing to determine that the Boston-Manchester-Portsmouth 
(SE), New Hampshire 1997 8-hour ozone nonattainment area (hereafter the 
``Southern NH'' area) has met the requirements for redesignation under 
sections 107(d)(3)(E) and 175A of the Clean Air Act (CAA). EPA is thus 
proposing to approve New Hampshire's

[[Page 65153]]

request to change the legal designation of the Southern NH area from 
nonattainment to attainment for the 1997 8-hour ozone NAAQS. In this 
rulemaking, EPA is also proposing to approve New Hampshire's 
maintenance plan SIP revision for the Southern NH area under CAA 
section 175A, such approval being one of the CAA criteria for 
redesignation to attainment status. The maintenance plan is designed to 
keep the Southern NH area in attainment of the ozone NAAQS through 
2022. EPA is proposing to approve the 2008 comprehensive emissions 
inventory for the Southern NH area as meeting the requirements of 
section 182(a)(1) of the CAA. Finally, EPA is proposing to approve the 
newly-established 2008 and 2022 MVEBs for the Southern NH area. At the 
state's request, EPA is proposing to remove the 2009 MVEBs prepared 
using MOBILE6.2 and replace them with 2008 MVEBs prepared using 
MOVES2010. EPA will finalize its approval of the redesignation request 
only if EPA also approves the 2008 comprehensive emissions inventory, 
vehicle inspection/maintenance (I/M) program and certain Reasonably 
Available Control Technology (RACT) rules for the area. EPA plans to 
take final action on the emission inventory, RACT rules, and revised I/
M program, prior to, or in conjunction with, EPA's final approval of 
New Hampshire's redesignation request.

II. What is the background for these proposed actions?

A. General Background

    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 VOCs are referred to as precursors of ozone.
    The CAA establishes a process for air quality management through 
the NAAQS. Before promulgation of the 1997 8-hour standard, the ozone 
NAAQS was based on a 1-hour standard. The Boston-Manchester-Portsmouth 
(SE), NH area 1997 8-hour ozone nonattainment area is composed of 
portions of three formerly separate 1-hour ozone nonattainment areas: 
(1) The Portsmouth-Dover-Rochester, NH serious 1-hour ozone 
nonattainment area; (2) the Boston-Lawrence-Worcester, MA-NH serious 1-
hour ozone nonattainment area; and (3) the Manchester, NH marginal 1-
hour ozone nonattainment area.
    All three of these areas attained the 1-hour ozone standard by 
their respective attainment dates. Specifically, for the Boston-
Lawrence-Worcester, MA-NH 1-hour area, see EPA's final determination at 
77 FR 31496, May 29, 2012. For the Portsmouth-Dover-Rochester, NH 1-
hour area and the Manchester, NH 1-hour area, see EPA's proposed 
determination at 77 FR 42470, July 19, 2012. (EPA will take final 
action with respect to this determination prior to taking final action 
on the redesignation request.)
    On July 18, 1997 (62 FR 38856), EPA promulgated an 8-hour ozone 
standard of 0.08 parts per million parts (ppm). On April 30, 2004 (69 
FR 23858), EPA published a final rule designating and classifying areas 
under the 8-hour ozone NAAQS. These designations and classifications 
became effective June 15, 2004. EPA designated as nonattainment any 
area that was violating the 8-hour ozone NAAQS based on the three most 
recent years of air quality data, 2001-2003. The Southern NH area was 
designated as nonattainment for the 1997 8-hour ozone standard and 
classified as a ``moderate'' nonattainment area under subpart 2 of the 
CAA. This area includes 54 cities and towns in Hillsborough, Merrimack, 
Rockingham, and Strafford Counties. See 40 CFR 81.330, for exact 
listing of cities and towns.
    The CAA contains two sets of provisions, subpart 1 and subpart 2, 
that address planning and control requirements for nonattainment areas. 
(Both are found in title I, part D, 42 U.S.C. 7501-7509a and 7511-
7511f, respectively.) Subpart 1 contains general requirements for 
nonattainment areas for any pollutant, including ozone, governed by a 
NAAQS. Subpart 2 provides more specific requirements for ozone 
nonattainment areas. Under EPA's implementation rule for the 1997 8-
hour ozone standard (69 FR 23951, April 30, 2004), the Southern NH area 
was designated as a subpart 2, 8-hour ozone moderate nonattainment area 
by EPA based on air quality monitoring data from 2001-2003.
    The New Hampshire Department of Environmental Services (NH DES) 
submitted a request to redesignate the Southern NH area to attainment 
of the 1997 8-hour ozone standard on March 2, 2012, with a supplement 
submitted on September 21, 2012. Complete, quality-assured and 
certified data show the area first attained the 1997 8-hour NAAQS based 
on 2002-2004 data and has remained in attainment since then (see 73 FR 
14387, March 18, 2008 and 76 FR 14805, March 18, 2011). In addition, 
available preliminary ozone monitoring data for 2012 indicate continued 
attainment of the standard. See complete discussion of air quality data 
for the Southern NH area in section IV.A. of today's action. 40 CFR 
50.10 and appendix I of 40 CFR part 50 provide that the 1997 8-hour 
ozone standard is attained when the three-year average of the annual 
fourth-highest daily maximum 8-hour average ozone concentrations is 
less than or equal to 0.08 ppm, when rounded, at all ozone monitoring 
sites in the area. To support the redesignation of the area to 
attainment of the NAAQS, the ozone data must be complete for the three 
attainment years. The data completeness requirement is met when the 
three-year average of days with valid ambient monitoring data is 
greater than 90 percent, and no single year has less than 75 percent 
data completeness, as determined in accordance with appendix I of 40 
CFR part 50. Under the CAA, EPA may redesignate a nonattainment area to 
attainment if sufficient, complete, quality-assured data are available 
to show that the area has attained the standard and if the State meets 
the other CAA redesignation requirements specified in section 
107(d)(3)(E) and section 175A.
    On March 27, 2008 (73 FR 16436), EPA promulgated a revised 8-hour 
ozone standard of 0.075 ppm. On May 21, 2012 (77 FR 30088), EPA 
designated all of New Hampshire as attainment/unclassifiable under the 
new, more stringent 2008 8-hour ozone NAAQS (see also 40 CFR part 
81.330). Today's action does not address requirements of the 2008 8-
hour ozone standard.

B. What are the impacts of the December 22, 2006 and June 8, 2007 
United States Court of Appeals decisions regarding EPA's Phase 1 
Implementation Rule?

    On December 22, 2006, in South Coast Air Quality Management Dist. 
v. EPA, the U.S. Court of Appeals for the District of Columbia (D.C. 
Circuit) vacated EPA's Phase 1 Implementation Rule for the 1997 8-hour 
Ozone Standard (69 FR 23951, April 30, 2004). 472 F.3d 882 (D.C. Cir. 
2006). On June 8, 2007, in response to several petitions for rehearing, 
the D.C. Circuit clarified that the Phase 1 Rule was vacated only with 
regard to those parts of the rule that had been successfully 
challenged. Id., Docket No. 04 1201. Therefore, several provisions of 
the Phase 1 Rule remain effective: provisions related to 
classifications for areas currently classified under subpart 2 of title 
I, part D, of the CAA as 1997 8-hour nonattainment areas; the 
applicable attainment dates; and the timing for emissions reductions 
needed for attainment. The June 8, 2007 decision also left intact the 
court's rejection of

[[Page 65154]]

EPA's reasons for implementing the 8-hour standard in certain 
nonattainment areas under subpart 1 in lieu of subpart 2. By limiting 
the vacatur, the D.C. Circuit let stand EPA's revocation of the 1-hour 
standard and those anti-backsliding provisions of the Phase 1 Rule that 
had not been successfully challenged.
    The June 8, 2007 decision reaffirmed the December 22, 2006 decision 
that EPA had improperly failed to retain four measures required for 1-
hour nonattainment areas under the anti-backsliding provisions of the 
regulations: (1) Nonattainment area New Source Review (NSR) 
requirements based on an area's 1-hour nonattainment classification; 
(2) Section 185 penalty fees for 1-hour severe or extreme nonattainment 
areas; (3) measures to be implemented pursuant to section 172(c)(9) or 
182(c)(9) of the Act, on the contingency of an area not making 
reasonable further progress toward attainment of the 1-hour NAAQS, or 
for failure to attain that NAAQS; and (4) certain transportation 
conformity requirements for certain types of Federal actions. The June 
8, 2007 decision clarified that the court's reference to conformity 
requirements was limited to requiring the continued use of 1-hour motor 
vehicle emissions budgets until 8-hour budgets were available for 8-
hour conformity determinations. More recently, EPA issued new 
regulations regarding 1-hour ozone anti-backsliding requirements (see 
77 FR 28424, May 14, 2012) that were the subject of the court's 
rulings.
    EPA previously concluded that the D.C. Circuit's December 22, 2006 
and June 8, 2007 decisions impose no impediment to moving forward with 
redesignation to attainment, when redesignation is appropriate under 
the relevant redesignation provisions of the CAA and longstanding 
policies regarding redesignation requests.

III. What are the criteria for redesignation to attainment?

    The CAA provides the requirements for redesignating a nonattainment 
area to attainment. Specifically, section 107(d)(3)(E) allows for 
redesignation provided that:
    (1) The Administrator determines that the area has attained the 
applicable NAAQS;
    (2) the Administrator has fully approved the applicable 
implementation plan for the area under section 110(k);
    (3) the Administrator determines that the improvement in air 
quality is due to permanent and enforceable reductions in emissions 
resulting from implementation of the applicable SIP and applicable 
Federal air pollutant control regulations and other permanent and 
enforceable reductions;
    (4) the Administrator has fully approved a maintenance plan for the 
area as meeting the requirements of section 175A; and
    (5) the state containing such area has met all requirements 
applicable to the area under section 110 and part D.
    EPA provided guidance on redesignation in the General Preamble for 
the Implementation of Title I of the CAA Amendments of 1990 on April 
16, 1992 (57 FR 13498), and supplemented this guidance on April 28, 
1992 (57 FR 18070). EPA has provided further guidance on processing 
redesignation requests in the following documents:

``Ozone and Carbon Monoxide Design Value Calculations,'' Memorandum 
from William G. Laxton, Director Technical Support Division, June 
18, 1990;
``Maintenance Plans for Redesignation of Ozone and Carbon Monoxide 
Nonattainment Areas,'' Memorandum from G. T. Helms, Chief, Ozone/
Carbon Monoxide Programs Branch, April 30, 1992;
``Contingency Measures for Ozone and Carbon Monoxide (CO) 
Redesignations,'' Memorandum from G. T. Helms, Chief, Ozone/Carbon 
Monoxide Programs Branch, June 1, 1992;
``Procedures for Processing Requests to Redesignate Areas to 
Attainment,'' Memorandum from John Calcagni, Director, Air Quality 
Management Division, September 4, 1992;
``State Implementation Plan (SIP) Actions Submitted in Response to 
Clean Air Act (Act) Deadlines,'' Memorandum from John Calcagni, 
Director, Air Quality Management Division, October 28, 1992;
``Technical Support Documents (TSDs) for Redesignation Ozone and 
Carbon Monoxide (CO) Nonattainment Areas,'' Memorandum from G. T. 
Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17, 
1993;
``State Implementation Plan (SIP) Requirements for Areas Submitting 
Requests for Redesignation to Attainment of the Ozone and Carbon 
Monoxide (CO) National Ambient Air Quality Standards (NAAQS) on or 
After November 15, 1992,'' Memorandum from Michael H. Shapiro, 
Acting Assistant Administrator for Air and Radiation, September 17, 
1993;
``Use of Actual Emissions in Maintenance Demonstrations for Ozone 
and CO Nonattainment Areas,'' Memorandum from D. Kent Berry, Acting 
Director, Air Quality Management Division, to Air Division 
Directors, Regions 1-10, November 30, 1993;
``Part D New Source Review (part D NSR) Requirements for Areas 
Requesting Redesignation to Attainment,'' Memorandum from Mary D. 
Nichols, Assistant Administrator for Air and Radiation, October 14, 
1994; and
``Reasonable Further Progress, Attainment Demonstration, and Related 
Requirements for Ozone Nonattainment Areas Meeting the Ozone 
National Ambient Air Quality Standard,'' Memorandum from John S. 
Seitz, Director, Office of Air Quality Planning and Standards, May 
10, 1995.

IV. What Is EPA's analysis of the State's request?

    EPA is proposing to determine that the Southern NH area has met all 
applicable redesignation criteria under CAA section 107(d)(3)(E). The 
bases for EPA's proposed approval of the redesignation request are 
discussed below.

A. Has the Southern NH area attained the 1997 8-hour ozone NAAQS?

    On March 18, 2008 (73 FR 14387), EPA first determined that the 
Southern NH area attained the 1997 8-hour ozone NAAQS based on 
monitoring data for 2002-2004. EPA determines that an area has attained 
the 1997 8-hour ozone NAAQS in accordance with 40 CFR 50.10 and 40 CFR 
part 50, appendix I, based on three complete, consecutive calendar 
years of quality-assured air quality monitoring data. To attain this 
standard, the three-year average of the fourth-highest daily maximum 8-
hour average ozone concentrations measured at each monitor within an 
area over each year must not exceed 0.08 ppm. Based on the rounding 
convention described in 40 CFR part 50, appendix I, the standard is 
attained if the design value is 0.084 ppm or below. The data must be 
collected and quality-assured in accordance with 40 CFR part 58, and 
recorded in EPA's Air Quality System (AQS). The monitors generally 
should have remained at the same location for the duration of the 
monitoring period required for demonstrating attainment.
    In addition, on March 18, 2011 (76 FR 14805), EPA determined that 
the Southern NH area attained the 1997 8-hour ozone NAAQS based on 
complete, quality-assured monitoring data for 2007-2009. In the March 
18, 2011 action, EPA also determined that the Southern NH area attained 
the 1997 ozone standard as of June 15, 2010, its applicable attainment 
date.
    The State of New Hampshire's redesignation request that is the 
subject of this action, includes ozone data from 1983-2010, and shows 
that the area has been in attainment since 2004 (see also 73 FR 14387, 
March 18, 2008 and 76 FR 14805, March 18, 2011). All ozone monitoring 
data have been quality-assured in accordance with 40 CFR 58.10, 
recorded in the AQS database, and certified. The data also meet the 
completeness criteria in 40 CFR 50, appendix I, which requires a 
minimum

[[Page 65155]]

completeness of 75 percent annually and 90 percent over each three-year 
period. Monitoring data for the years 2007 to 2011 is presented in 
Tables 1 and 2 below. (The tables include several years of data for 
thoroughness; EPA previously determined this area attained the 1997 8-
hour NAAQS (see 73 FR 14387, March 18, 2008 and 76 FR 14805, March 18, 
2011).) The 2011 data were not included in the redesignation request, 
but have since been certified; thus, EPA is including them in this 
proposal to show that that the area continues to attain during the most 
recent three years of complete, quality-assured data for 2009-2011. 
Table 1 shows, as determined on March 18, 2011 (76 FR 14805), that the 
Southern NH area attained the 1997 ozone standard by its applicable 
attainment date. Table 2 shows that the Southern NH area continues to 
attain the 1997 ozone standard. All sites are well below the 1997 8-
hour NAAQS.

    Table 1--2007-2009 Fourth-High 8-Hour Average Ozone Concentrations and 2007-2009 Design Values (Parts per
                      Million) in the Boston-Manchester-Portsmouth (SE), New Hampshire Area
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                                                                                                   Design value
            Location                AQS Site ID   4th high  2007  4th High  2008  4th High  2009      (07-09)
----------------------------------------------------------------------------------------------------------------
Manchester......................       330110020           0.074           0.064           0.060           0.066
Nashua..........................       330111011           0.081           0.067           0.066           0.071
Portsmouth......................       330150014           0.078           0.069           0.070           0.072
Rye.............................       330150016           0.086           0.075           0.068           0.076
----------------------------------------------------------------------------------------------------------------


    Table 2--2009-2011 Fourth-High 8-Hour Average Ozone Concentrations and 2009-2011 Design Values (Parts per
                      Million) in the Boston-Manchester-Portsmouth (SE), New Hampshire Area
----------------------------------------------------------------------------------------------------------------
                                                                                                   Design Value
            Location                AQS Site ID   4th high  2009  4th High  2010  4th High  2011      (09-11)
----------------------------------------------------------------------------------------------------------------
Manchester......................       330110020           0.060           0.063               *             N/A
Londonderry.....................       330150018              **              **           0.069             N/A
Nashua..........................       330111011           0.066           0.065           0.066           0.066
Portsmouth......................       330150014           0.070           0.064           0.064           0.066
Rye.............................       330150016           0.068           0.066           0.066           0.066
----------------------------------------------------------------------------------------------------------------
* Site moved to Londonderry; no 2009-2011 design values available.
** New site; no 2009-2011 design values available.
Preliminary data available for 2012 indicate that the area continues to attain.

    In addition, as discussed below with respect to the maintenance 
plan, the NH DES has committed to continue to operate an EPA-approved 
monitoring network in the area as necessary to demonstrate maintenance 
of the NAAQS. New Hampshire remains obligated to continue to quality-
assure monitoring data in accordance with 40 CFR part 58 and enter all 
data into the AQS in accordance with Federal guidelines. In summary, 
EPA proposes to find that the area has attained the 1997 8-hour ozone 
NAAQS.

B. Has the State of New Hampshire met all applicable requirements of 
Section 110 and Part D and does the Southern NH area have a fully 
approved SIP under Section 110(k) of the CAA for purposes of 
redesignation to attainment?

1. Requirements Under the 1997 8-Hour Ozone Standard
    With respect to the 1997 8-hour standard, the Southern NH area is 
classified under subpart 2. The June 8, 2007 opinion clarifies that the 
Court did not vacate the Phase 1 Rule's provisions with respect to 
classifications for areas under subpart 2. The Court's decision 
therefore upholds EPA's classifications for those areas classified 
under subpart 2 for the 8-hour ozone standard.
2. Requirements Under the 1-Hour Ozone Standard
    In its June 8, 2007 decision the DC Circuit limited its vacatur so 
as to uphold those provisions of the anti-backsliding requirements that 
were not successfully challenged. Therefore, an area must meet the 
anti-backsliding requirements which apply by virtue of the area's 
classification for the 1-hour ozone standard. See 40 CFR 51.900, et 
seq.; 70 FR 30592, 30604 (May 26, 2005). As set forth in more detail 
below, the area must also address four additional anti-backsliding 
provisions identified by the court in its decisions.
    The anti-backsliding provisions at 40 CFR 51.905(a)(1) prescribe 1-
hour ozone standard requirements that continue to apply after 
revocation of the 1-hour ozone standard to former 1-hour ozone 
nonattainment areas that are also designated as nonattainment for the 
1997 8-hour standard. 40 CFR 51.905(a)(1)(i) provides that the area 
remains subject to the obligation to adopt and implement the applicable 
requirements as defined in Sec.  51.900(f), except as provided in Sec.  
51.905 (a)(1)(iii) of this section, and except as provided in paragraph 
(b) of Sec.  51.905.
    40 CFR 51.900(f), as amended by 70 FR 30592, 30604 (May 26, 2005), 
states that ``applicable requirements'' means for an area the following 
requirements to the extent such requirements apply or applied to the 
area for the area's classification under section 181(a)(1) of the CAA 
for the 1-hour NAAQS at designation for the 8-hour NAAQS:
     Reasonably available control technology (RACT).
     Inspection and maintenance programs (I/M).
     Major source applicability cut-offs for purposes of RACT.
     Rate of Progress (ROP) reductions.
     Stage II vapor recovery.
     Clean fuels fleet program under section 182(c)(4) of the 
CAA.
     Clean fuels for boilers under section 182(e)(3) of the 
CAA.
     Transportation Control Measures (TCMs) during heavy 
traffic hours as provided section 182(e)(4) of the CAA.
     Enhanced (ambient) monitoring under section 182(c)(1) of 
the CAA.
     Transportation controls under section 182(c)(5) of the 
CAA.
     Vehicle miles traveled provisions of section 182(d)(1) of 
the CAA.

[[Page 65156]]

     NOX requirements under section 182(f) of the 
CAA.
     Attainment demonstration or an alternative as provided 
under Sec.  51.905(a)(1)(ii).
     Contingency measures as provided under Sec.  51.905(b).
    Pursuant to 40 CFR 51.905(c), the Southern NH area is subject to 
the obligations set forth in 40 CFR 51.905(a) and 40 CFR 51.900(f).
    In addition, the DC Circuit held that EPA should have retained four 
additional measures in its anti-backsliding provisions: (1) 
Nonattainment area NSR; (2) section 185 penalty fees; (3) contingency 
measures under section 172(c)(9) or 182(c)(9) of the Act; and (4) 1-
hour MVEBs that were not yet replaced by 8-hour emissions budgets. EPA 
addressed portions of the court decision in a recent Federal Register 
notice (see 77 FR 28424, May 14, 2012). For the New Hampshire request 
EPA has addressed these four requirements as follows:
    With respect to NSR, EPA has determined that an area being 
redesignated need not have an approved nonattainment NSR program, 
provided that the state demonstrates maintenance of the standard in the 
area without part D NSR in effect. The rationale for this view is 
described in a memorandum from Mary Nichols, Assistant Administrator 
for Air and Radiation, dated October 14, 1994, entitled, ``Part D New 
Source Review Requirements for Areas Requesting Redesignation to 
Attainment.'' This policy assumes that the state's PSD program will 
become effective in the area immediately upon redesignation to 
attainment. Consequently EPA concludes that an approved NSR program is 
not an applicable requirement for purposes of redesignation. See the 
more detailed explanations in the following rulemakings: Detroit, 
Michigan (60 FR 12467-12468, March 7, 1995); Cleveland-Akron-Lorrain, 
Ohio (61 FR 20458, 20469-70, May 7, 1996); Louisville, Kentucky (66 FR 
53665, 53669, October 23, 2001); and Grand Rapids, Michigan (61 FR 
31831, 31836-31837, June 21, 1996). Furthermore, New Hampshire has a 
fully approved NSR program. The New Hampshire NSR program was last 
approved on February 6, 2012 (77 FR 5700).
    With regard to the requirement for section 185 source penalty fee 
programs, no portion of the Southern NH area was classified as severe 
or higher for the 1-hour ozone standard, and therefore the area is not 
subject to this requirement.
    With respect to the 1-hour MVEBs that were not yet replaced by 8-
hour emissions budgets, the conformity portion of the court's June 8, 
2007 ruling clarified that, for those areas with MVEBs for the 1-hour 
ozone standard, anti-backsliding requires that these MVEBs be used for 
8-hour conformity determinations until replaced by MVEBs for the 8-hour 
ozone standard. To meet this requirement, conformity determinations in 
such areas must comply with the applicable requirements of EPA's 
conformity regulations at 40 CFR part 93. Note below that EPA is 
proposing to approve 8-hour MVEBs contained in New Hampshire's 
redesignation request and 8-hour ozone maintenance plan for the 
Southern NH area.
    As stated above, in 1991, all cities and towns of what is now the 
Southern NH 1997 8-hour ozone nonattainment area were designated 
nonattainment by operation of law and classified by EPA. The two 
largest of these areas, the Boston-Lawrence-Worcester, MA-NH 1-hour 
area and the Portsmouth-Dover-Rochester, NH 1-hour area were classified 
as serious ozone nonattainment areas 56 FR 56694 (November 6, 1991). 
EPA previously approved the serious attainment demonstration SIP and 
its associated elements, e.g., attainment MVEBs and the Reasonably 
Available Control Measures (RACM) demonstration, for the Boston-
Lawrence-Worcester, MA-NH 1-hour area (see 63 FR 67405, December 7, 
1998; 67 FR 18493, April 16, 2002; and 67 FR 72574, December 6, 2002). 
As stated above, the Portsmouth-Dover-Rochester, NH 1-hour area 
attained the 1-hour NAAQS by November 15, 1999. See 77 FR 42470, July 
19, 2012. Since this area attained the 1-hour standard by its 
attainment deadline there is not a need for 1-hour contingency 
measures. Also as stated above, the Manchester, NH 1-hour area attained 
the 1-hour standard by its attainment deadline. In addition, since the 
Manchester, NH 1-hour area was a marginal area it did not need to have 
contingency measures for failure to attain. Neither the Portsmouth-
Dover-Rochester, NH 1-hour area, the Boston-Lawrence-Worcester, MA-NH 
1-hour area, nor the Manchester, NH 1-hour area needed to have section 
185 fees since they were not classified as severe or extreme. In 
conclusion, there are no outstanding 1-hour requirements for this area 
(see 77 FR 42470, July 19, 2012).
    We are proposing to determine that New Hampshire has met all 
currently applicable SIP requirements for purposes of redesignation of 
the Southern NH area to attainment of the 1997 8-hour ozone standard 
under section 110 and part D of the CAA, in accordance with section 
107(d)(3)(E)(v). We are also proposing to determine that the New 
Hampshire SIP, with the exception of the comprehensive emission 
inventory, certain RACT rules, and revisions to New Hampshire's vehicle 
I/M program, is fully approved with respect to all applicable 
requirements for purposes of redesignation to attainment of the 1997 8-
hour ozone standard, in accordance with section 107(d)(3)(E)(ii) of the 
CAA. As discussed below, in this action, EPA is proposing to approve 
New Hampshire's 2008 comprehensive emissions inventory as meeting the 
comprehensive emissions inventory requirement of section 182(a)(1) for 
the area. EPA is taking action on the New Hampshire RACT regulations 
and vehicle I/M program revisions in separate rules. Provided that the 
comprehensive emissions inventory, vehicle I/M program revisions, and 
RACT rules are approved on or before we complete final rulemaking 
approving the redesignation request, we determine here that, assuming 
that this occurs, New Hampshire will have met all applicable section 
110 and part D SIP requirements of the CAA for purposes of approval of 
New Hampshire's ozone redesignation requests for the Southern NH area. 
In making these determinations, we have ascertained what SIP 
requirements are applicable to the area for purposes of redesignation, 
and have determined that the portions of the SIP meeting these 
requirements are fully approved or will be fully approved under section 
110(k) of the CAA by the time we complete final rulemaking on New 
Hampshire's ozone redesignation requests for the Southern NH area. As 
discussed more fully below, SIPs must be fully approved only with 
respect to currently applicable requirements of the CAA.
    The September 4, 1992 Calcagni memorandum (see ``Procedures for 
Processing Requests to Redesignate Areas to Attainment,'' Memorandum 
from John Calcagni, Director, Air Quality Management Division, 
September 4, 1992) describes EPA's interpretation of section 
107(d)(3)(E) of the CAA. Under this interpretation, a state and the 
area it wishes to redesignate must meet the relevant CAA requirements 
that are due prior to the state's submittal of a complete redesignation 
request for the area. See also the September 17, 1993 Michael Shapiro 
memorandum and 60 FR 12459, 12465-66 (March 7, 1995) (redesignation of 
Detroit-Ann Arbor, Michigan to attainment of the 1-hour ozone NAAQS). 
Applicable requirements of the CAA that come due

[[Page 65157]]

subsequent to the state's submittal of a complete request remain 
applicable until a redesignation to attainment is approved, but are not 
required as a prerequisite to redesignation. See section 175A(c) of the 
CAA. See Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004), and also 68 
FR 25424, 25427 (May 12, 2003) (redesignation of the St. Louis/East St. 
Louis area to attainment of the 1-hour ozone NAAQS).
    As noted in the Clean Data Determination for the area (see 76 FR 
14805, March 18, 2011), since EPA determined that the Southern NH area 
has attained the 1997 8-hour ozone standard, under 40 CFR 51.918, the 
requirements to submit certain planning SIPs related to attainment, 
including attainment demonstration requirements (the reasonably 
available control measure (RACM) requirement of section 172(c)(1) of 
the CAA, the reasonable further progress (RFP) and attainment 
demonstration requirements of sections 172(c)(2) and (6) and 182(b)(1) 
of the CAA, and the requirement for contingency measures of section 
172(c)(9) of the CAA) are not applicable to the area as long as it 
continues to attain the NAAQS and will cease to apply upon 
redesignation. In addition, in the context of redesignations, EPA has 
interpreted requirements related to attainment as not applicable for 
purposes of redesignation. For example, in the General Preamble, EPA 
stated that:

[t]he section 172(c)(9) requirements are directed at ensuring RFP 
and attainment by the applicable date. These requirements no longer 
apply when an area has attained the standard and is eligible for 
redesignation. Furthermore, section 175A for maintenance plans 
provides specific requirements for contingency measures that 
effectively supersede the requirements of section 172(c)(9) for 
these areas. ``General Preamble for the Interpretation of Title I of 
the Clean Air Act Amendments of 1990,'' (General Preamble) 57 FR 
13498, 13564 (April 16, 1992).

See also Calcagni memorandum (dated September 4, 1992) on page 6. 
(``The requirements for reasonable further progress and other measures 
needed for attainment will not apply for redesignations because they 
only have meaning for areas not attaining the standard.'')
3. Requirements of Section 110 and Part D of the CAA Applicable for 
Purposes of Redesignation for the 8-Hour NAAQS
a. Section 110 and General SIP Requirements
    Section 110(a) of Title I of the CAA contains the general 
requirements for a SIP. Section 110(a)(2) provides that the 
implementation plan submitted by a State must have been adopted by the 
State after reasonable public notice and hearing, and, among other 
things, must: Include enforceable emission limitations and other 
control measures, means or techniques necessary to meet the 
requirements of the CAA; provide for establishment and operation of 
appropriate devices, methods, systems, and procedures necessary to 
monitor ambient air quality; provide for implementation of a source 
permit program to regulate the modification and construction of any 
stationary source within the areas covered by the plan; include 
provisions for the implementation of part C, Prevention of Significant 
Deterioration (PSD) and part D, NSR permit programs; include criteria 
for stationary source emission control measures, monitoring, and 
reporting; include provisions for air quality modeling; and provide for 
public and local agency participation in planning and emission control 
rule development.
    We believe that the section 110 elements that are not connected 
with nonattainment plan submissions and not linked with an area's 
attainment status are not applicable requirements for purposes of 
redesignation. A State remains subject to these requirements after an 
area is redesignated to attainment. Only the section 110 and part D 
requirements that are linked with a particular area's designation and 
classification are the relevant measures which we may consider in 
evaluating a redesignation request. This approach is consistent with 
EPA's existing policy on applicability of conformity and oxygenated 
fuels requirements for redesignation purposes, as well as with section 
184 ozone transport requirements. See Reading, Pennsylvania, proposed 
and final rulemakings (61 FR 53174-53176 October 10, 1996) and (62 FR 
24826 May 7, 1997); Cleveland-Akron-Lorain, Ohio, final rulemaking (61 
FR 20458, May 7, 1996); and Tampa, Florida, final rulemaking (60 FR 
62748 December 7, 1995). See also the discussion on this issue in the 
Cincinnati, Ohio 1-hour ozone redesignation (65 FR 37890 June 19, 
2000), and in the Pittsburgh, Pennsylvania 1-hour ozone redesignation 
(66 FR 50399 October 19, 2001).
    We have reviewed New Hampshire's SIP and have concluded that it 
meets the general SIP requirements under section 110 of the CAA, to the 
extent they are applicable for purposes of redesignation. EPA has 
previously approved provisions of the New Hampshire SIP addressing 
section 110 elements under the 1-hour ozone standard. See Table 3 
below. All the VOC and NOX control measures listed in Table 
3 are permanent and enforceable controls that will remain in place 
following redesignation.

  Table 3--List of New Hampshire Control Measures for Volatile Organic
                    Compounds and Oxides of Nitrogen
                           [Ozone precursors]
------------------------------------------------------------------------
    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 40 CFR
 diesel engines.                                    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.       1868; 1/10/01).
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);
 of CAA.                                            (63 FR 11600; 3/10/
                                                    98); (58 FR 4902; 1/
                                                    19/93); (58 FR
                                                    29973; 5/25/93).

[[Page 65158]]

 
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 opt-in.....  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).
 184(b)(2) CAA requirement.
------------------------------------------------------------------------

    The requirements of section 110(a)(2), however, are statewide 
requirements that are not linked to the 8-hour ozone nonattainment 
status of the Southern NH area. Therefore, EPA concludes that these 
infrastructure SIP elements are not applicable requirements for 
purposes of review of the state's 8-hour ozone redesignation request. 
Nevertheless, in a submittal dated December 14, 2007, New Hampshire 
confirmed that the state meets the section 110 requirements for the 
1997 8-hour ozone standard. EPA approved the New Hampshire 110(a)(2) 
SIP submittal on July 8, 2011, at 76 FR 40248, for the following 
elements: 110(a)(2)(A), (B), (C), (D)(ii), (E), (F), (G), (H), (J), 
(K), (L), and (M).
b. Part D SIP Requirements
    EPA has reviewed the New Hampshire SIP for the Southern NH area 
with respect to SIP requirements applicable for purposes of 
redesignation under part D of the CAA for both the 1-hour ozone NAAQS 
and the 1997 8-hour ozone NAAQS. EPA believes that the New Hampshire 
SIP for the Southern NH area contains approved SIP measures that meet 
the part D requirements applicable for purposes of redesignation. EPA 
has approved most of the required Part D elements. EPA plans to take 
final action on revisions to New Hampshire's vehicle I/M program,\1\ 
and certain RACT rules prior to, or in conjunction with, final action 
on the Southern NH redesignation request. In addition EPA is proposing 
to approve the 2008 comprehensive emissions inventory, discussed in 
section IV.D.2.a. of this rulemaking. Upon final approval of New 
Hampshire's I/M program revisions, RACT rules, and the 2008 
comprehensive emissions inventory, the Southern NH area will meet all 
of the requirements applicable to the area under part D for purposes of 
redesignation.
---------------------------------------------------------------------------

    \1\ The on-road mobile source emissions estimates found in the 
SNH redesignation request includes emissions reductions achieved as 
a result of the implementation of the revised New Hampshire motor 
vehicle I/M program; thus New Hampshire's revised I/M program should 
be approved into the SIP prior to, or in conjunction with, final 
action on the SNH redesignation request.
---------------------------------------------------------------------------

    EPA has determined that, if EPA finalizes the approval of New 
Hampshire's I/M program, discussed below, requirements for RACT, and 
the 2008 comprehensive emissions inventory, discussed in section 
VII.D.2.a. of this rulemaking, the New Hampshire SIP will meet the SIP 
requirements applicable for purposes of redesignation under part D of 
the CAA for the Southern NH area. Subpart 1 of part D, found in 
sections 172-176 of the CAA, sets forth the basic nonattainment 
requirements applicable to all nonattainment areas. Subpart 2 of part 
D, which includes section 182 of the CAA, establishes additional 
specific requirements depending on the area's nonattainment 
classification.
    The applicable subpart 1 requirements are contained in sections 
172(c)(1)-(9) and in section 176. The applicable subpart 2 requirements 
are contained in sections 182(a) and (b) (marginal and moderate 
nonattainment area requirements).
Subpart 1 Section 172 Requirements
    For purposes of evaluating this redesignation request, the 
applicable section 172 SIP requirements for the Southern NH area are 
contained in sections 172(c)(1)-(9). A thorough discussion of the 
requirements contained in section 172 can be found in the General 
Preamble for Implementation of Title I (57 FR 13498, April 16, 1992).
    Section 172(c)(1) requires the plans for all nonattainment areas to 
provide for the implementation of all RACM as expeditiously as 
practicable and to provide for attainment for the national primary 
ambient air quality standards. EPA interprets this requirement to 
impose a duty on states containing nonattainment areas to consider all 
available control measures and to adopt and implement such measures as 
are reasonably available for implementation in each area as components 
of the area's attainment demonstration. Because attainment has been 
reached in the Southern NH area, no additional measures are needed to 
provide for attainment and section 172(c)(1) requirements are no longer 
considered to be applicable as long as the area continues to attain the 
standard until redesignation. See 40 CFR 51.918.
    The RFP requirement under section 172(c)(2) is defined as progress 
that must be made toward attainment. This requirement is not relevant 
for purposes of redesignation because the Southern NH area has met the 
1997 8-hour ozone NAAQS (see General Preamble, 57 FR 13564, April 16, 
1992). See also 40 CFR 51.918. In addition, because the Southern NH 
area has attained the ozone NAAQS and is no longer subject to an RFP 
requirement, the section 172(c)(9) contingency measures are not 
applicable for purposes of redesignation. Id.
    Section 172(c)(3) requires submission and approval of a 
comprehensive, accurate and current inventory of actual emissions. This 
requirement was superseded by the inventory requirement in section 
182(a)(1) discussed below.

[[Page 65159]]

    Section 172(c)(4) requires the identification and quantification of 
allowable emissions for major new and modified stationary sources in an 
area, and section 172(c)(5) requires source permits for the 
construction and operation of new and modified major stationary sources 
anywhere in the nonattainment area.
    New Hampshire has a fully approved NSR program (77 FR 5700, 
February 6, 2012). Even if New Hampshire did not have a fully approved 
NSR program, EPA has interpreted the section 184 Ozone Transport Region 
(OTR) requirements, including NSR, as not being applicable for purposes 
of redesignation. The rationale for this is based on two factors. 
First, the requirement to submit SIP revisions for the section 184 
requirements continues to apply to areas in the OTR after redesignation 
to attainment. Therefore, the State remains obligated to have New 
Source Review even after redesignation. Second, the section 184 control 
measures are region-wide requirements and do not apply to the area by 
virtue of its designation and classification. See 61 FR 53174, 53175-
53176 (October 10, 1996) and 62 FR 24826, 24830-32 (May 7, 1997). Thus, 
EPA proposes to find that the Southern NH area has satisfied all 8-hour 
ozone standard requirements applicable for purposes of section 
107(d)(3)(E) under Part D of the CAA.
    Section 172(c)(6) requires the SIP to contain control measures 
necessary to provide for attainment of the standard. Because attainment 
has been reached, no additional measures are needed to provide for 
attainment.
    Section 172(c)(7) requires the SIP to meet the applicable 
provisions of section 110(a)(2). As noted above, we believe the New 
Hampshire SIP meets the requirements of section 110(a)(2) for purposes 
of redesignation.
Subpart 1, Section 176 Conformity Requirements
    Section 176(c) of the CAA requires states to establish criteria and 
procedures to ensure that Federally-supported or funded activities, 
including highway projects, conform to the air quality planning goals 
in the applicable SIPs. The requirement to determine conformity applies 
to transportation plans, programs and projects developed, funded or 
approved under title 23 of the U.S. Code and the Federal Transit Act 
(transportation conformity) as well as to all other Federally-supported 
or funded projects (general conformity). State conformity revisions 
must be consistent with Federal conformity regulations relating to 
consultation, enforcement, and enforceability, which EPA promulgated 
pursuant to CAA requirements.
    EPA interprets the conformity SIP requirements as not applying for 
purposes of evaluating the redesignation request under section 107(d) 
for two reasons. First, the requirement to submit SIP revisions to 
comply with the conformity provisions of the CAA continues to apply to 
areas after redesignation to attainment, since such areas would be 
subject to a section 175A maintenance plan. Second, EPA's Federal 
conformity rules require the performance of conformity analyses in the 
absence of Federally-approved state rules. Therefore, because areas are 
subject to the conformity requirements regardless of whether they are 
redesignated to attainment and, because they must implement conformity 
under Federal rules if state rules are not yet approved, it is 
reasonable to view these requirements as not applying for purposes of 
evaluating a redesignation request. See Wall v. EPA, 265 F.3d 426 (6th 
Cir. 2001), upholding this interpretation. See also 60 FR 62748, 62749-
62750 (December 7, 1995) (Tampa, Florida).
    EPA approved New Hampshire's Env-A 1500 general conformity SIP on 
August 16, 1999 (64 FR 44417). New Hampshire submitted a revised Env-A 
1500 Transportation Conformity SIP on December 9, 2011. New Hampshire 
has submitted onroad MVEBs for the Southern NH area of 17.8 tons per 
summer weekday (tpswd) VOC and 37.2 tpswd NOX for the year 
2008, and 9.2 tpswd VOC and 11.8 tpswd NOX for the year 
2022.
    The area must use the MVEBs from the maintenance plan in any 
conformity determination that is effective on or after the effective 
date of the maintenance plan approval. MVEBs are discussed further in 
section V.
Subpart 2 Section 182(a) and (b) Requirements
    Comprehensive Emissions Inventory. Section 182(a)(1) requires the 
submission of a comprehensive emissions inventory. New Hampshire 
submitted both a 2002 comprehensive emissions inventory to EPA on June 
7, 2007 and a 2008 emissions inventory with its redesignated request. 
As discussed below in section VII, EPA is proposing to approve the 2008 
emissions inventory as meeting the section 182(a)(1) comprehensive 
emissions inventory requirement.
    Emissions Statements. EPA approved New Hampshire's emission 
statement SIP, as required by section 182(a)(3)(B), on March 10, 1998 
(63 FR 11600).
    Reasonable Further Progress and Attainment Demonstration. For the 
reasons set forth earlier in this notice, because the Southern NH area 
has attained the 1997 8-hour ozone NAAQS, the requirements of section 
182(b)(1) do not apply.
    VOC and NOX RACT Requirements. Section 182(b)(2) requires states 
with moderate nonattainment areas to adopt RACT under section 172(c)(1) 
with respect to each of the following: (1) All sources covered by a 
Control Technology Guideline (CTG) document issued between November 15, 
1990, and the date of attainment; (2) all sources covered by a CTG 
issued prior to November 15, 1990; and, (3) all other major non-CTG 
stationary sources. In addition, Section 182(f) establishes 
NOX requirements for ozone nonattainment areas. As required 
under the 1-hour ozone standard, New Hampshire submitted, and EPA 
approved, NOX and VOC RACT regulations into the New 
Hampshire SIP. See 62 FR 17092, April 9, 1997; 63 FR 11600, March 10, 
1998; and 67 FR 48036, July 23, 2002.
    In addition, under the 1997 8-hour ozone standard, moderate and 
above ozone nonattainment areas, and areas in the OTR, were required to 
submit RACT SIPs. As noted in the EPA's Phase 2 ozone implementation 
rule,\2\ the RACT submittal for the 1997 8-hour ozone standard was due 
from New Hampshire on September 16, 2006. See 40 CFR 51.916(b)(2). On 
January 28, 2008, New Hampshire submitted a SIP revision to EPA 
consisting of a certification that it met RACT for purposes of the 1997 
8-hour ozone standard. EPA plans to take final action on New 
Hampshire's RACT certification, prior to, or in conjunction with, final 
action on the Southern NH redesignation request.
---------------------------------------------------------------------------

    \2\ See Final Rule to Implement the 8-Hour Ozone National 
Ambient Air Quality Standard--Phase 2 (the Phase 2 Rule) (70 FR 
71612; November 29, 2005).
---------------------------------------------------------------------------

    Furthermore, subsequent to the RACT submittal due date for the 1997 
8-hour ozone standard, EPA issued additional CTGs, covering various VOC 
source categories. Specifically, on October 5, 2006, EPA issued four 
new CTGs (71 FR 58745). Then, on October 9, 2007, EPA issued three more 
CTGs (72 FR 57215). Lastly, on October 7, 2008, EPA issued an 
additional four CTGs (73 FR 58841). The State of New Hampshire 
submitted its SIP revision for all eleven 2006, 2007, and 2008 CTGs in 
one SIP revision package on July 26, 2011. EPA plans to take final 
action on New Hampshire's submittal for the 2006, 2007, and 2008 CTGs, 
prior to, or in

[[Page 65160]]

conjunction with, final action on the Southern NH redesignation 
request.
    Stage II Vapor Recovery. Section 182(b)(3) requires states to 
submit Stage II rules no later than November 15, 1992. New Hampshire 
became subject to the Stage II vapor recovery requirements under the 1-
hour ozone standard. EPA approved New Hampshire's Stage II rule on 
December 7, 1998 (63 FR 67405). In addition, since New Hampshire is in 
the OTR, the State must meet the CAA Section 184(b)(2) Stage II or 
comparable measures requirement. EPA approved New Hampshire's Stage II 
or comparable measures SIP on September 9, 1999 (64 FR 52434).
    On May 16, 2012 (77 FR 28772), EPA issued a final rulemaking 
determining that onboard refueling vapor recovery technology is in 
widespread use across the motor vehicle fleet for purposes of 
controlling motor vehicle refueling emissions. The May 16, 2012 
rulemaking waives the requirement for states to implement Stage II 
vapor recovery systems at gasoline dispensing facilities in 
nonattainment areas classified as Serious and above for the ozone 
NAAQS. The May 16, 2012 rulemaking allows a state to remove its Stage 
II vapor recovery program as of a date certain, if the state revises 
its SIP to satisfy the requirements of CAA sections 110(l), 184(b)(2), 
and 193, as applicable. In addition, on August 7, 2012, EPA issued 
guidance, ``Guidance on Removing Stage II Gasoline Vapor Control 
Programs from State Implementation Plans and Assessing Comparable 
Measures,'' in order to assist states with addressing the SIP CAA 
requirements if a state moves forward with the phase out of its Stage 
II vapor recovery program. New Hampshire has recently revised its State 
regulation to eliminate the requirement for gasoline dispensing 
facilities to implement Stage II vapor recovery systems as of January 
1, 2012. The State has not yet submitted the revised rule to EPA as a 
SIP revision. NH DES is currently developing a SIP revision to address 
the phase out of the State's Stage II vapor recovery program in 
accordance with EPA's May 16, 2012 rulemaking and August 7, 2012 
guidance. The Stage II phase out is a separate action from this 
redesignation request. The maintenance plan included in New Hampshire's 
redesignation request is, however, consistent with the planned Stage II 
phase out SIP revision. Specifically, emission estimates for 2022 do 
not include any emission reductions from Stage II vapor recovery 
controls.
    Vehicle Inspection and Maintenance (I/M). EPA's final I/M 
regulations in 40 CFR part 85 required the states to submit a fully 
adopted I/M program by November 15, 1993. New Hampshire became subject 
to the motor vehicle I/M requirements under the 1-hour ozone standard. 
EPA approved New Hampshire's enhanced I/M program on January 10, 2001 
(66 FR 1868). On April 5, 2001, EPA issued ``Amendments to Vehicle 
Inspection and Maintenance Program Requirements Incorporating the On-
Board Diagnostics Check'' (65 FR 18156). The revised I/M rule requires 
that electronic checks of the On-Board Diagnostics (OBD2) system be 
conducted as part of states' motor vehicle I/M programs. Subsequently, 
New Hampshire revised its I/M program regulations to include OBD2 
testing of 1996 and newer motor vehicles. New Hampshire submitted a SIP 
revision, for its OBD2 I/M program, to EPA on November 17, 2011. EPA 
has not yet taken final action on the revised I/M SIP but plans to do 
so prior to the final approval of this redesignation request.
    Thus, as discussed above, with approval of the comprehensive 
emissions inventory, certain RACT rules, and New Hampshire's revised I/
M program, the Southern NH area will satisfy the requirements 
applicable for purposes of redesignation under section 110 and part D 
of the CAA.

C. Is the air quality improvement in the Southern NH area due to 
permanent and enforceable reductions in emissions?

    EPA proposes to find that the state has demonstrated that the 
observed air quality improvement in the Southern NH area is due to 
permanent and enforceable reductions in emissions resulting from 
implementation of the SIP, Federal measures, and other state-adopted 
measures, listed in Table 3 above. As shown in the state's submittal 
and supported by EPA rulemaking (see 73 FR 14387, March 18, 2008 and 76 
FR 14805, March 18, 2011) the area first came into attainment of the 
1997 8-hour ozone standard based on ozone data for 2002-2004. The area 
has remained in attainment and the air quality has improved in the 
area. The area is now attainment for the more stringent 2008 8-hour 
ozone NAAQS (77 FR 30088, May 21, 2012). Attainment is the direct 
result of permanent and enforceable emission reductions and not 
favorable meteorology or economic downturn.
    New Hampshire's redesignation request documents a substantial 
emission reduction in ozone precursor emissions both in upwind states 
and within New Hampshire. For example, the state's request notes that 
in light of the OTC's NOX budget program and the EPA's 
NOX SIP call, NOX emissions from budget sources 
declined by 62% between 2000 and 2008. Additionally, the emission 
inventories for New Hampshire show that between 2002 (one of the ozone 
seasons on which the area's nonattainment designation was based) and 
2008, an attainment year, in-state NOX and VOC emissions 
were reduced by approximately 68 tons per day and 51 tons per day, 
respectively. The following summary from the New Hampshire 
redesignation request (see pages 23-24) gives one example of the 
magnitude of emission reductions the area has experienced over the past 
two decades.

    The observed improvement in air quality would not have occurred 
without the concerted efforts of EPA and the Ozone Transport 
Commission (OTC) to reduce the emitted amounts of both pollutants 
across the region. In September 1994, the OTC member states \3\ 
adopted a memorandum of understanding to achieve regional 
NOX emission reductions. Phase I began with the 
installation of RACT, followed in Phases II and III by the 
development and implementation of regulations to achieve further 
reductions in ozone-season NOX emissions by 1999 and 
2003, respectively. The second and third phases were modeled on the 
cap-and-trade principle and resulted in the creation of the OTC 
NOX Budget Program.\4\ This program established a de 
facto NOX emission rate of 0.15 lbs/MMBtu for 
participating electric generating units and large industrial 
boilers. Rules for New Hampshire's participation in the OTC 
NOX Budget Program are codified at Chapter Env-A 3200. In 
the midst of these efforts, in 1998, EPA issued a final rule aimed 
at reducing the regional transport of NOX and ozone. This 
rule, commonly known as the NOX SIP Call, required 22 
eastern states and the District of Columbia (not including New 
Hampshire) to reduce ozone-season NOX emissions. 
Compliance with the NOX SIP call began on May 1, 2003, 
for the participating OTC

[[Page 65161]]

states \5\ and on May 31, 2004, for states outside the Ozone 
Transport Region. Although the NOX SIP Call provided 
states with the flexibility to design their own programs to meet the 
NOX reduction requirements, all affected states chose to 
participate in a regional cap-and-trade program.\6\ The 
NOX SIP Call and the NOX Budget Trading 
Program (NBP) have had a major effect on reducing regional transport 
of this pollutant. EPA data show that total ozone-season 
NOX emissions from all NBP sources fell from 1,256,000 
tons in 2000 to 481,000 tons in 2008.\7\ (That is a 61% reduction in 
NOX.)

    \3\ The OTC includes the states of Connecticut, Delaware, Maine, 
Maryland, Massachusetts, New Hampshire, New Jersey, New York, 
Pennsylvania, Rhode Island, Vermont, and Virginia, and the District 
of Columbia.
    \4\ The NOX Budget Program involves an allowance 
trading system which harnesses free market forces to reduce 
pollution, similar to the U.S. EPA's Acid Rain Program. Under this 
program, budget sources were allocated allowances by their state 
governments. Each allowance permits a source to emit one ton of 
NOX during the control period (May through September) for 
which it is allocated or any later control period. Allowances may be 
bought, sold, or banked. Any person may acquire allowances and 
participate in the trading system. Each budget source must comply 
with the program by demonstrating at the end of each control period 
that actual emissions do not exceed the amount of allowances held 
for that period. However, regardless of the number of allowances a 
source holds, it cannot emit at levels that would violate other 
federal or state limits (e.g., NSPS, Title IV, NOX RACT).
    \5\ The NOX SIP Call superseded Phase III of the OTC 
NOX Budget Program. Maine, New Hampshire, and Vermont 
were not participating states.
    \6\ The NOX Budget Trading Program established under 
the NOX SIP Call is separate and distinct from the OTC 
NOX Budget Program.
    \7\ USEPA, The NOX Budget Trading Program: 2008 
Highlights, December 2008; available at http://www.epa.gov/airmarkt/progress/NBP_4.html.

    The New Hampshire submittal contains a discussion of meteorology as 
it affects ozone levels (see Attachment A). This analysis shows that 
the downward trend in New Hampshire's ozone levels is a direct result 
of emission reductions and not favorable meteorology. EPA believes that 
New Hampshire has adequately demonstrated that the air quality 
improvement in the Southern NH area is due to permanent and enforceable 
reductions in emissions resulting from implementation of the SIP and 
applicable federal air pollution control regulations and other 
permanent and enforceable reductions, and not other factors such as 
favorable meteorology or economic downturn.
    The recent D.C. Circuit decision on the Cross-State Air Pollution 
Rule (Transport Rule), EME Homer Generation LP v. EPA, No. 11-1302 
(D.C. Cir., August 21, 2012) \8\ does not disturb EPA's determination 
that it is appropriate to move forward with this redesignation. The air 
quality modeling analysis conducted for the Transport Rule demonstrates 
that the Southern NH Area would be able to attain the 1997 8-hour ozone 
NAAQS even in the absence of either the Clean Air Interstate Rule 
(CAIR) or the Transport Rule. See ``Air Quality Modeling Final Rule 
Technical Support Document,'' App. B, B-18, B-19. Nothing in the D.C. 
Circuit's August 2012 decision disturbs or calls into question that 
conclusion or the validity of the air quality analysis on which it is 
based. More importantly, the Transport Rule is not relevant to this 
redesignation, since the Transport Rule only addressed emissions in 
2012 and beyond. The Southern NH area has been in attainment since 2004 
(see 73 FR 14387, March 18, 2008), well before the Transport rule and 
also before CAIR (see 70 FR 25162, May 12, 2005) was an enforceable 
control measure. As such, the status of CAIR is irrelevant and does not 
impact our conclusion that the Southern NH area can be redesignated. 
Moreover, in its August 2012 decision, the Court also ordered EPA to 
continue implementing CAIR. See EME Homer Generation LP v. EPA, slip 
op. at 60. In sum, neither the current status of CAIR nor the current 
status of the Transport Rule affects any of the criteria for proposed 
approval of this redesignation request for the Southern NH area.
---------------------------------------------------------------------------

    \8\ The court's judgment is not final, as of Sept. 30, 2012, as 
the mandate has not yet been issued.
---------------------------------------------------------------------------

D. Does the Southern NH area have a fully approved maintenance plan 
pursuant to Section 175A of the CAA?

    In conjunction with its request to redesignate the Southern NH 
nonattainment area to attainment status, New Hampshire submitted a SIP 
revision to provide for the maintenance of the 1997 8-hour ozone NAAQS 
in the Southern NH area until 2022.
1. Maintenance Plan Requirements
    Section 175A of the CAA sets forth the elements of a maintenance 
plan for areas seeking redesignation from nonattainment to attainment. 
Under section 175A, the plan must demonstrate continued attainment of 
the applicable NAAQS for at least ten years after the Administrator 
approves a redesignation to attainment. Eight years after the 
redesignation, the State must submit a revised maintenance plan which 
demonstrates that attainment will continue to be maintained for the ten 
years following the initial ten-year period. To address the possibility 
of future NAAQS violations, the maintenance plan must contain such 
contingency measures, with a schedule for implementation as EPA deems 
necessary to assure prompt correction of any future 8-hour ozone 
violations. Section 175A of the CAA sets forth the elements of a 
maintenance plan for areas seeking redesignation from nonattainment to 
attainment. The Calcagni memorandum dated September 4, 1992, provides 
additional guidance on the content of a maintenance plan. An ozone 
maintenance plan should address the following provisions:
    (a) An attainment emissions inventory for both VOC and 
NOX;
    (b) A maintenance demonstration showing maintenance for the ten 
years of the maintenance period;
    (c) A commitment to maintain the existing monitoring network;
    (d) Factors and procedures to be used for verification of continued 
attainment; and
    (e) Contingency measures as to correct future violations of the 
NAAQS.
2. EPA's Analysis of the Southern NH Maintenance Plan
a. Attainment Emissions Inventory
    An attainment inventory includes the emissions during the time 
period associated with the monitoring data showing attainment. An 
attainment inventory year of 2008 was used for the Southern NH area 
since it is a year for which monitors within the area showed 
attainment, and is also a year for which New Hampshire prepared a 
comprehensive inventory pursuant to the requirements of 40 CFR Part 51, 
Subpart A. The 2008 inventory is consistent with EPA guidance and is 
based on actual ``typical summer day'' emissions of VOC and 
NOX during 2008.
    New Hampshire prepared comprehensive VOC and NOX 
emissions inventories for the Southern NH area, including point, area, 
mobile on-road, and mobile non-road sources for their 2008 attainment 
inventory. To develop the NOX and VOC base-year emission 
inventories, New Hampshire used the following approaches and sources of 
data:
    Point source emissions--New Hampshire requires owners and operators 
of larger facilities to submit annual production figures and emission 
calculations each year. Data for the point source emissions inventory 
was collected by this and several other means, including direct 
reporting by facilities to the NH DES pursuant to the state's emission 
statement requirements, permit requirements, and from data collected 
during site visits by field engineers. Quality assurance checks were 
performed on the source emission estimates, and comparisons made to 
prior year estimates.
    Area source emissions--Area source emissions are generally 
estimated by multiplying an emission factor by some known indicator or 
collective activity for each area source category at the county level. 
New Hampshire estimates emissions from area sources using primarily the 
methodologies described within the EPA's Emissions Inventory 
Improvement Program (EIIP). Throughput estimates are derived from 
county-level activity data, by apportioning national and statewide 
activity data to counties, from census numbers, and from county 
employee numbers. County employee numbers are based upon North American 
Industry Classification System (NAICS) codes to establish that those 
numbers are specific to the industry covered.

[[Page 65162]]

    On-road mobile sources--New Hampshire used EPA's Motor Vehicle 
Emissions Simulator (MOVES) to estimate highway vehicle emissions for 
2008. Estimates of vehicle miles traveled (VMT) by vehicle type and 
roadway type were obtained from the relevant Metropolitan Planning 
Organization within the Southern NH area.
    Nonroad mobile emissions--The 2008 emissions for the majority of 
nonroad emission source categories were estimated using the EPA NONROAD 
2008a model. The NONROAD model estimates emissions for diesel, 
gasoline, liquefied petroleum gasoline, and compressed natural gas-
fueled nonroad equipment types and includes growth factors. The NONROAD 
model does not estimate emissions from aircraft, locomotives, or 
commercial marine vessels (CMVs). For 2008 locomotive and commercial 
marine emissions, New Hampshire used standard EPA recommended emission 
estimation methodologies. For 2008 aircraft and airport ground service 
equipment, New Hampshire used the Federal Aviation's Agency's Emissions 
and Dispersion Modeling System (EDMS). The 2008 attainment year VOC and 
NOX emissions for the Southern NH area are summarized along 
with the 2012 and 2022 projected emissions for this area in Table 4. 
The downward emissions trend demonstrates that the NAAQS should be 
maintained for this area. EPA has concluded that New Hampshire has 
adequately derived and documented the 2008 attainment year and 
projected year VOC and NOX emissions for this area.
    New Hampshire's 2008 inventory VOC and NOX emissions was 
developed on a tons per summer weekday basis, and is summarized in 
Table 4 below.
b. Maintenance Demonstration
    New Hampshire's March 2, 2012 SIP submittal, as amended September 
21, 2012, includes a 10-year maintenance plan for the Southern NH area 
as required by section 175A of the Act. This plan demonstrates 
maintenance by showing that future emissions of VOC and NOX 
remain at or below attainment year emission levels. A maintenance 
demonstration need not be based on modeling. See Wall v. EPA, 265 F.3d 
426 (6th Cir. 2001), Sierra Club v. EPA, 375 F. 3d 537 (7th Cir. 2004). 
See also 66 FR 53094, 53099-53100 (October 19, 2001), 68 FR 25430-25432 
(May 12, 2003).
    New Hampshire used 2008 as the base year, 2012 as the current year, 
and 2022 as the last year of the maintenance plan. (In addition, per 40 
CFR Part 93, a MVEB must be established for the last year of the 
maintenance plan. MVEBs are discussed in Section V below.) Table 4 
shows the emissions inventories for 2008, 2012, and 2022, from New 
Hampshire's September 21, 2012 amended submittal for the Southern NH 
area. The emissions inventory shows a downward trend in precursor 
emissions from 2008 through 2012, and continuing on until 2022. By 
2022, VOC emissions are expected to decrease by 13 percent and 
NOX emissions to decrease by 48 percent. Analysis of the 
anticipated trend in emissions is a requirement of a maintenance plan. 
New Hampshire's submittal provides such documentation and demonstrates 
that a significant downward trend in emissions will occur. New 
Hampshire has fulfilled this maintenance plan requirement.

 Table 4--Attainment (2008), Current (2012) and Maintenance (2022) Inventories for the Southern NH Nonattainment
                                                      Area
                                          [Pounds per summer week day]
----------------------------------------------------------------------------------------------------------------
                                                     VOC                                    NOX
          Source category          -----------------------------------------------------------------------------
                                        2008         2012         2022         2008         2012         2022
----------------------------------------------------------------------------------------------------------------
Point.............................        5,762        5,288        6,605       24,289       21,665       22,742
Area..............................       55,871       57,885       70,195        6,528        6,243        6,432
Onroad............................       35,666       28,470       18,410       74,352       51,204       23,558
Nonroad...........................       33,512       26,863       19,152       31,364       26,121       17,670
                                   -----------------------------------------------------------------------------
    Total.........................      130,811      118,506      114,362      136,533      105,223       70,402
----------------------------------------------------------------------------------------------------------------
Change from 2008..................  ...........      -12,305      -16,449  ...........      -31,310      -66,131
----------------------------------------------------------------------------------------------------------------

c. Monitoring Network
    There are currently 4 monitors measuring ozone in the Southern NH 
area. In the maintenance plan, the State of New Hampshire has committed 
to continue to monitor ozone levels according to an EPA-approved 
monitoring plan. New Hampshire remains obligated to continue to quality 
assure monitoring data in accordance with 40 CFR part 58 and enter all 
data into the AQS in accordance with federal guidelines. New Hampshire 
has therefore addressed the requirement for continued ozone monitoring 
in this area.
d. Verification of Continued Attainment
    The state has the legal authority to enforce and implement the 
requirements of the ozone maintenance plan. This includes the authority 
to adopt, implement, and enforce any subsequent emission control 
contingency measures determined to be necessary to correct future ozone 
attainment problems. To implement the ozone maintenance plan, the state 
will continue to monitor ozone levels in the area. New Hampshire has 
also committed to track the progress of the maintenance demonstration 
by periodically updating their emission inventory. New Hampshire has 
committed to do this annually. The update will be based, in part, on 
the annual update of the National Emissions Inventory (NEI), and will 
indicate new source growth and other changes from the attainment 
inventory, including any changes in vehicle miles traveled or in 
traffic patterns, as well as any changes in MOVES or its successor.
e. The Maintenance Plan's Contingency Measures
    The contingency plan provisions are designed to promptly correct a 
violation of the NAAQS that might occur after redesignation. Section 
175A of the Act requires that a maintenance plan include such 
contingency measures as EPA deems necessary to assure that the state 
will promptly correct a violation of the NAAQS that occurs after 
redesignation. The maintenance plan should identify the contingency 
measures to be adopted, a schedule and procedure for adoption and 
implementation, and a time limit for action by the state. The state 
should also

[[Page 65163]]

identify specific indicators to be used to determine when the 
contingency measures need to be implemented. The maintenance plan must 
include a requirement that the state will implement all measures with 
respect to control of the pollutant that were contained in the SIP 
before redesignation of the area to attainment. See Section 175A(d).
    As required by section 175A of the CAA, the NH DES has committed to 
the following procedure. At the conclusion of each ozone season, the NH 
DES will evaluate whether the design value for the Southern NH area is 
above or below the 1997 8-hour ozone standard. If the design value is 
above the standard, the NH DES will evaluate the potential causes of 
this design value increase. The NH DES will examine whether this 
increase is due to an increase in local in-state emissions or an 
increase in upwind out-of-state emissions. If an increase in in-state 
emissions is determined to be a contributing factor to the design value 
increase, New Hampshire will evaluate the projected in-state emissions 
for the Southern NH area for the ozone season in the following year. If 
in-state emissions are not expected to satisfactorily decrease in the 
following ozone season, in order to mitigate the violation, New 
Hampshire will implement one or more of the contingency measures listed 
in this section, or substitute a new VOC or NOx control measure(s) to 
achieve additional in-state emissions reductions.
    As stated in New Hampshire's redesignation submittal (see page 42):

    The contingency measures(s) will be selected by the Governor or 
the Governor's designee within 6 months of the end of the ozone 
season for which contingency measures have been determined needed. 
New Hampshire will then initiate a course of action to implement 
enforceable control measure(s) to rectify the problem. New 
rulemaking, when required, can typically be adopted and implemented 
within a 12-month timeframe. NHDES will update the maintenance plan 
as necessary and develop and implement required regulations as soon 
as practicable within the guidelines established in the New 
Hampshire Administrative Procedures Act, but no later than 18 months 
after selection of the appropriate measure.

    Possible contingency measures include: Additional controls for NOx 
at ICI Boilers (at Major Point Sources); additional controls on 
Emulsified Asphalt Paving operations for VOC; and additional controls 
on Consumer Products to lower VOC emissions (details can be found in 
the New Hampshire request see pages 41 to 45). In addition, NH DES is 
evaluating other potential NOx and VOC control measures that could be 
applied, if necessary, to further reduce ozone levels in the 
maintenance area. These control measures are listed in Table 6.4 of the 
New Hampshire request, along with the previously mentioned contingency 
measures for boilers, asphalt paving, and consumer products.
    For the foregoing reasons, EPA believes that the Southern NH area 
maintenance plan adequately addresses the five basic components of a 
maintenance plan: Attainment inventory; maintenance demonstration; 
monitoring network; verification of continued attainment; and a 
contingency plan. Therefore, EPA is proposing to approve the 
maintenance plan SIP revision submitted by New Hampshire for the 
Southern NH area as meeting the requirements of CAA section 175A.

V. How are MVEBs developed and what is an adequacy determination?

    Under the CAA, states are required to submit, at various times, 
control strategy SIPs and maintenance plans in ozone areas. These 
control strategy SIPs (e.g., reasonable further progress SIPs and 
attainment demonstration SIPs) and maintenance plans create MVEBs based 
on on-road mobile source emissions for criteria pollutants and/or their 
precursors to address pollution from cars and trucks. Per 40 CFR part 
93, a MVEB is established for the last year of the maintenance plan. 
The MVEB is the portion of the total allowable emissions that is 
allocated to highway and transit vehicle use that, together with 
emissions from other sources in the area, will provide for attainment 
or maintenance. The MVEB serves as a ceiling on emissions from an 
area's planned transportation system. The MVEB concept is further 
explained in the preamble to the November 24, 1993, transportation 
conformity rule (58 FR 62188). The preamble also describes how to 
establish the MVEB in the SIP and revise the MVEB.
    Under section 176(c) of the CAA, new transportation projects, such 
as the construction of new highways, must ``conform'' to (i.e., be 
consistent with) the part of the state's air quality plan that 
addresses pollution from cars and trucks. ``Conformity'' to the SIP 
means that transportation activities will not cause new air quality 
violations, worsen existing violations, or delay timely attainment of 
the national ambient air quality standards or an interim milestone. If 
a transportation plan does not ``conform,'' most new projects that 
would expand the capacity of roadways cannot go forward. Regulations at 
40 CFR part 93 set forth EPA policy, criteria, and procedures for 
demonstrating and assuring conformity of such transportation activities 
to a SIP.
    When reviewing submitted ``control strategy'' SIPs or maintenance 
plans containing MVEBs, EPA must affirmatively find the MVEB budget 
contained therein ``adequate'' for use in determining transportation 
conformity. Once EPA affirmatively finds the submitted MVEB is adequate 
for transportation conformity purposes, that MVEB can be used by state 
and federal agencies in determining whether proposed transportation 
projects ``conform'' to the SIP as required by section 176(c) of the 
Act. EPA's substantive criteria for determining ``adequacy'' of an MVEB 
are set out in 40 CFR 93.118(e)(4).

VI. What is the status of EPA's adequacy determination for the area's 
MVEBs for 2022?

    The Southern NH area's attainment plan and 10-year maintenance plan 
submission contains new VOC and NOX MVEBs for the years 2008 
and 2022. The availability of the SIP submission with these 2008 and 
2022 MVEBs was announced for public comment on EPA's adequacy web page 
on March 5, 2012, at: www.epa.gov/otaq/stateresources/transpconfor/adequacy.htm. The EPA public comment period on adequacy of the 2008 and 
2022 MVEBs for the Southern NH area closed on April 4, 2012. EPA did 
not receive any adverse comments. EPA New England sent a letter to the 
New Hampshire Department of Environmental Services on April 25, 2012, 
stating that the 2008 and 2022 motor vehicle emissions budgets in the 
March 2, 2012 SIP submittal are adequate.
    On September 21, 2012, the New Hampshire Department of 
Environmental Services submitted minor amendments to the SIP revision 
entitled ``Request for Redesignating the Boston-Manchester-Portsmouth 
(SE), NH 8-Hour (1997 Standard) Ozone Nonattainment Area.'' One of 
these minor changes was running the MOVES2010b model with Stage II 
vapor controls turned off for 2012 and 2022 to generate new 2012 and 
2022 on-road mobile VOC emissions.\9\ This reflects the fact that New 
Hampshire's Stage II

[[Page 65164]]

vapor recovery program will no longer be providing emissions reductions 
as of January 1, 2012. See section IV of this notice. Turning off Stage 
II vapor controls in future years increased the 2022 onroad motor 
vehicle VOC emissions by 581 pounds per summer weekday. This increase 
in onroad VOC emissions increased the 2022 VOC MVEB from 8.9 tpswd 
(previously determined adequate) to 9.2 tpswd.
---------------------------------------------------------------------------

    \9\ It should be noted that New Hampshire's December 2011 
proposed redesignation request that was subject to public comment 
also included modeling runs with Stage II vapor controls turned off 
for 2012 and 2022. However, the final redesignation request 
submitted on March 2, 2012 did not include such provisions. This was 
corrected in the supplement submitted on September 21, 2012.
---------------------------------------------------------------------------

    The NH DES utilized the MOVES2010 model to calculate on-road 
emissions of VOC and NOX for the Southern NH 8-hour 
nonattainment area. New Hampshire is establishing motor vehicle 
emissions budgets for the last year of the Southern NH area's 8-hour 
ozone maintenance plan (year 2022) at 9.2 tpswd of VOC and 11.8 tpswd 
of NOX. These on-road mobile source emissions when added to 
emissions from all other inventory sources (stationary, other mobile 
(i.e., non-road, marine vessels, airplanes, locomotives) and area 
sources) result in year 2022 emissions inventories lower than the year 
2008 attainment emissions inventory. New Hampshire is also establishing 
2008 motor vehicle emissions budgets of 17.8 tpswd of VOC and 37.2 
tpswd of NOX. As part of its redesignation request, NHDES 
has requested that EPA withdraw the SIP-approved 2009 MVEBs prepared 
using MOBILE6.2 and replace them with the submitted 2008 MVEBs prepared 
using MOVES2010. The 2008 and 2022 adequate emissions budgets, once 
approved by EPA, will continue to be used for future transportation 
conformity determinations.

VII. Proposed Actions

    EPA is proposing to approve (1) the redesignation of the Southern 
New Hampshire 8-hour ozone nonattainment area from nonattainment to 
attainment for the 1997 8-hour ozone NAAQS. EPA has evaluated the State 
of New Hampshire's redesignation request and is proposing to approve it 
as meeting the redesignation requirements in section 107(d)(3)(E) of 
the CAA provided that EPA finalizes approvals of emissions inventories 
under section 182(a)(1), certain RACT requirements, and New Hampshire's 
Vehicle I/M SIP revision. The final approval of this redesignation 
request would change the official designation for the Southern New 
Hampshire ozone nonattainment area from nonattainment to attainment for 
the 1997 8-hour ozone standard. EPA is also proposing to approve the 
175A maintenance plan SIP revision for the Southern NH 8-hour area, 
including the 2008 and 2022 MVEBs submitted by New Hampshire. EPA is 
proposing to withdraw the SIP-approved 2009 MVEBs prepared using 
MOBILE6.2 and replace them with the new 2008 MVEBs included in the 
maintenance plan. In addition, in this notice EPA is proposing to 
approve the 2008 comprehensive emissions inventory for the Southern NH 
area under CAA section 182(a)(1). EPA is soliciting public comments on 
the issues discussed in this document. These comments will be 
considered before taking final action.

VIII. Statutory and Executive Order Reviews

    Under the CAA, redesignation of an area to attainment and the 
accompanying approval of a maintenance plan under section 107(d)(3)(E) 
are actions that affect the status of a geographical area and do not 
impose any additional regulatory requirements on sources beyond those 
imposed by state law. A redesignation to attainment does not in and of 
itself create any new requirements, but rather results in the 
applicability of requirements contained in the CAA for areas that have 
been redesignated to attainment. Moreover, the Administrator is 
required to approve a SIP submission that complies with the provisions 
of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 
CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to 
approve state choices, provided that they meet the criteria of the CAA. 
Accordingly, these actions do not impose additional requirements beyond 
those imposed by state law and the CAA. For that reason, these actions:
     Are not ``significant regulatory actions'' subject to 
review by the Office of Management and Budget under Executive Order 
12866 (58 FR 51735, October 4, 1993);
     Do not impose an information collection burden under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
     Are certified as not having a significant economic impact 
on a substantial number of small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.);
     Do 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);
     Do not have Federalism implications as specified in 
Executive Order 13132 (64 FR 43255, August 10, 1999);
     Are not an economically significant regulatory action 
based on health or safety risks subject to Executive Order 13045 (62 FR 
19885, April 23, 1997);
     Are not a significant regulatory action subject to 
Executive Order 13211 (66 FR 28355, May 22, 2001);
     Are not subject to requirements of section 12(d) of the 
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 
note) because application of those requirements would be inconsistent 
with the CAA; and
     Do not provide EPA with the discretionary authority to 
address, as appropriate, disproportionate human health or environmental 
effects, using practicable and legally permissible methods, under 
Executive Order 12898 (59 FR 7629, February 16, 1994).
    In addition, this rule does not have tribal implications as 
specified by Executive Order 13175 (65 FR 67249, November 9, 2000), 
because redesignation is an action that affects the status of a 
geographical area and does not impose any new regulatory requirements 
on tribes, impact any existing sources of air pollution on tribal 
lands, nor impair the maintenance of ozone national ambient air quality 
standards in tribal lands.

List of Subjects

40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by 
reference, Intergovernmental relations, Nitrogen dioxide, Ozone, 
Reporting and recordkeeping requirements, Volatile organic compounds.

40 CFR Part 81

    Environmental protection, Air pollution control, National parks, 
Wilderness areas.

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

    Dated: October 15, 2012.
H. Curtis Spalding,
Regional Administrator, EPA New England.
[FR Doc. 2012-26210 Filed 10-24-12; 8:45 am]
BILLING CODE 6560-50-P