1or a Federal implementation plan. 7/ 19/ 05 with revisions sent to OMB 8/ 2/ 05 & 8/ 3/ 058/ 9/ 05 ver revised 11 am RACT/ RACM excerpt from 8 hr O3 NAAQS implementation rule   phase 2 FROM SUMMARY SECTION:

G. What requirements should apply for RACM and RACT for 8 hour ozone nonattainment areas? 1. Reasonably Available Control Technology ( RACT) For subpart 1 areas that submit a demonstration of attainment for 5 or less years after designation ( i. e., do not request an attainment date extension beyond 5 years after designation), the CAA's RACT requirement is met with the control requirements associated with a demonstration that the NAAQS is attained as expeditiously as practicable. For subpart 1 areas that submit an attainment demonstration that requests an attainment date extension ( i. e., beyond 5 years after designation), subpart 2 moderate and above areas, and areas within an Ozone Transport Region ( OTR), a RACT SIP is required that demonstrates that sources meet the CAA's RACT requirement. The RACT submittal date is 27 months after designation, except a subpart 1 area shall submit the RACT SIP with its attainment date extension request. States must require sources to implement RACT no later than the first ozone season or portion thereof which occurs 30 months after the required submittal date. Where a RACT SIP is required, State SIPs implementing the 8 hour standard generally must assure that RACT is met, either through a certification that previously required RACT controls represent RACT for 8 hour implementation purposes or through a new RACT determination. States may use existing EPA guidance in making RACT determinations. SThe State need not perform a NOx RACT analysis for sources subject to the NOx SIP Call or CAIR trading program meet NOx RACT requirements under existing RACT guidanceState's emission cap and trade program where the cap andtrade program has been adopted by the State and approved by EPA1 as meeting the NOx SIP Call requirements or, in States achieving CAIR reductions solely from EGUs, the CAIR NOx requirements. States are free to conduct case by case RACT determinations, or RACT determinations or certifications for groups of sources, at their discretion. 2. Reasonably Available Control Measures ( RACM) For each nonattainment area required to submit an attainment demonstration, the State must submit with the attainment demonstration a SIP revision demonstrating that it has adopted all control measures necessary to demonstrate attainment as expeditiously as practicable and to meet any RFP requirements. ************************ * * * *

FROM DETAILED SECTIONPREAMBLE:

G. What requirements should apply for RACM and RACT for 8 hour ozone nonattainment areas? [ Section VI. K. of June 2, 2003 proposed rule ( 68 FR 32837); § 51.912 in draft and final regulatory text.] The first subsection of this section covers RACT and the second subsection covers RACM. 1. Reasonably Available Control Technology ( RACT) a. Background As described in more detail in the June 2 proposal, subpart 1 of part D includes a requirement that an attainment plan provide for the implementation of all RACM as expeditiously as practicable, including such reductions that may be obtained through RACT. Under subpart 2, marginal areas are required to correct pre 1990 RACT requirements and new RACT requirements are specified for moderate and above ozone nonattainment areas. Additionally, States must adopt RACT for all areas in an ozone transport region ( OTR). The RACT requirement applies to both ozone precursors   NOx and VOC. Since 1990, we have issued guidance documents on the RACT requirements in subpart 2. Prior to enactment of the CAA Amendments of 1990, EPA also issued detailed guidance documents on RACT for ozone nonattainment area SIPs. In the period prior to enactment of the 1990 CAA Amendments, only the general requirements for RACM and RACT existed. Also, prior to the 1990 Amendments, EPA had issued control technique guideline ( CTG) documents to provide presumptive norms for RACT for VOC controls for States to follow in adopting RACT for ozone nonattainment areas. In 1990, Congress specified more detailed RACT provisions and explicitly required RACT for NOx as well as for VOC. Also in 1990, section 183( c) required EPA to issue technical documents which identify alternative control techniques ( ACT documents) for large stationary sources of NOx and VOC. The EPA completed 12 ACT documents for VOC source categories. Over a 5 year period, 1991 94, EPA issued nine ACT guideline documents for large stationary sources of NOx. In 2000, updates to the NOx ACT documents were completed for stationary internal combustion engines and cement kilns. Although the ACT documents do not set a presumptive RACT level as do CTGs, they are intended to help States in making RACT determinations. In addition to the ACTs and CTGs, information developed as part of the process of determining BACT, BART, LAER, and MACT, can be very useful in supplementing or, in some cases, substituting for information to support a RACT determination. Section 183( c) of the CAA also requires EPA to " revise and update such documents [ i. e., CTGs and ACTs] as the Administrator 3 determines necessary." As new or updated information becomes available, States should consider the new information in their RACT determinations. States should consider the updated guidance in any RACT determinations or certifications that have not been issued as of the time such an update becomes available. In addition to the ACTs and CTGs, information developed as part of the process of determining BACT, BART, LAER, and MACT, can be very useful in supplementing or, in some cases, substituting for information to support a RACT determination.

In addition, EPA is considering related recommendations from the Clean Air Act Advisory Committee that were sent to EPA in January 2005 in response to the recent National Research Council report on Air Quality Management in the United States ( January 2004). One of the CAAAC recommendations is that " for the SIPs States are required to submit over the next several years, EPA and States, locals, and Tribes should promote the consideration of multipollutant impacts, including the impacts of air toxics, and where there is discretion, select regulatory approaches that maximize benefits from controlling key air toxics, as well as ozone, PM2.5 and regional haze." As part of this effort, EPA intends in the future to develop updated technology guidance with respect to source categories emitting multiple pollutants in large amounts. At this time, however, we think it is unlikely that updated technology guidance will be available in time for the RACT SIPs due in 2006.

In the June 2, 2003 proposal, we proposed several requirements with respect to RACT. For subpart 1 areas, we proposed several options. We proposed in one option to interpret the CAA in a manner similar to that under subpart 2 by requiring areas covered under subpart 1 to face different RACT requirements based on the magnitude of the ozone problem in the area ( i. e., the area's design value). In another option, we proposed that RACT would be met if the area were able to demonstrate attainment of the standard as expeditiously as practicable with emission control measures in the SIP. We also proposed as an early attainment incentive that RACT would be met in an area which demonstrates attainment within 3 years and submits the demonstration within 1 year. For subpart 2 areas, we proposed to apply RACT as specified in subpart 2. We proposed the RACT submittal dates for subpart 1 areas would be either the same as the submittal date for the attainment plan ( within 3 years) or the same as the deadline for subpart 2 areas ( within 2 years). In addition, we proposed the date for affected sources to implement RACT in subpart 2 areas would be 30 months after the required submittal date. We also proposed that States may use current EPA guidance in making RACT 4 determinations; consequently, in some cases, sources previously evaluated under the 1 hour ozone RACT requirement and sources subject to the NOx SIP Call cap and trade program could be determined to meet the 8 hour ozone RACT requirement. b. Summary of final rule For subpart 1 areas that do not request an attainment date extension ( beyond 5 years after designation), RACT will be met with control requirements sufficient to demonstrate that the NAAQS is attained as expeditiously as practicable. The RACT submittal date for these areas is the same as the submittal date for the attainment plan. This submission date is no later than 3 years after designation. For subpart 1 areas that request an attainment date extension ( beyond 5 years after designation), the State shall submit the RACT SIP with its attainment date extension request. For subpart 2 moderate and above areas, and areas within an OTR, RACT is required with the RACT submittal and is due 27 months after designation. States must require sources to implement RACT no later than the first ozone season or portion thereof which occurs 30 months after the required submittal date. Where RACT applies ( except certain subpart 1 areas, as described above, and except certain sources subject to the NOx SIP Call or CAIR, as described below), State SIPs implementing the 8 hour standard must assure that RACT is met, either through a certification that previously required RACT controls represent RACT for 8 hour implementation purposes or through a new RACT determination. States may use existing EPA guidance in making RACT determinations. Where a State has adopted and EPA has approved a control measure as RACT for a specific major stationary source or source category for the 1 hour ozone NAAQS, and absent data indicating that the previous RACT determination is no longer appropriate in lieu of a RACT rule, the State may submit a certification that the source is subject to RACT. Such certification shall be accompanied by appropriate supporting information, such as consideration of information received from public commenters. States may use information gathered from prior BACT or LAER analyses to help complete a RACT analysis. For VOC sources subject to MACT standards, States may streamline their RACT analysis by including a discussion of the MACT controls and whether any major new technologies have been developed subsequent to the MACT standards. We believe that there are many VOC sources that are well controlled ( e. g., through add on controls or through substitution of non VOC non HAP materials for VOC HAP materials) because they are regulated by the MACT standards, which EPA developed under CAA section 112. Unless the MACT standards do not actually result in decreases in VOC ( such as substitution of a non HAP VOC for a HAP VOC) and unless there are 2or a Federal implementation plan is in place.

5 new technologies subsequent to the MACT standards that would lead to cost effective increases in the level of VOC control, States may rely on the MACT standards for purposes of VOC RACT. For purposes of meeting the NOx RACT requirement in areas located in a State subject to the NOx SIP Call or CAIR for NOx, the State may consider theneed not perform a NOx RACT SIP requirements metanalysis for sources subject to the State'' s emission cap and tradecap and trade program where the cap and tradecap and trade program has been adopted by the State or approved by EPA as part of a SIP2 meeting the NOx SIP Call requirements or, in States achieving CAIR reductions solely from EGUs, the CAIR NOx requirements as meeting. EPA believes the SIP provisions for those sources meet the ozone NOx RACT requirements. Additionally, RACT is considered met for cement kilns and stationary internal combustion engines that are subject to a SIP approved obligation to install and operate controls that are expected to achieve at least a 30 percent and 82 percent reduction, respectively, from uncontrolled levels. States are free to conduct case by case RACT determinations   or RACT determinations or certifications for groups of sources   at their discretion. A State may meet the NOx RACT requirement by showing that the weighted average emission rate from a broad range of sources in the nonattainment area subject to RACT   including sources subject to the NOx SIP Call or CAIR NOx requirements   meet RACT requirements. As described in the proposed regulatory text for this rule [ section 51.912( b)( 1)], for purposes of meeting the RACT obligations under section 182( b)( 2)( C) of the CAA for major stationary sources of VOCs and under section 182( f) of the CAA for major stationary sources of NOx, the definition of major stationary source in section 302 of the CAA, as modified by the major source definition in either section 182( b), ( c), ( d) or ( e) of the CAA as applicable to the area's classification, applies. Although we drafted more extensive regulatory language for several aspects of the RACT program in the proposal, we believe it is sufficient to describe EPA's views on the details of the RACT program in today's preamble and in other guidance ( e. g., the NOx Supplement to the General Preamble, November 25, 1992 ( 57 FR 55620)). Thus, some detailed portions of the proposed regulatory text regarding RACT were not retained in the final rule. A Note About Recommended Consultation. Based on our experience developing the NOx SIP call, CAIR, and the proposed Clear Skies legislation, we believe that many power companies will develop their strategies for complying with CAIR based, in part, on consultations with air quality officials in the areas in which their plants are located. Because power plants are 6 generally major emission sources, the operators of those plants typically have ongoing relationships with state and local officials that will be involved in developing air quality plans. We are aware that, in the past, companies have worked with air quality officials to meet their emission control obligations under a cap and trade approach such as the NOx SIP call while also addressing the concerns of air quality officials about the air quality impacts of specific plants. This has led to controlling emissions from power plants located in or near specific ozone nonattainment areas. A number of companies have indicated that such collaboration will be even more important as the States where they are located address multiple air quality goals ( e. g., visibility, interstate air pollution, local attainment). EPA expects similar consultations between States and power sector companies on the location of plants to be controlled under CAIR, considering local attainment needs in planning for CAIR compliance. This consultation might reveal opportunities to provide improved air quality for large numbers of people in a nonattainment area, or to promote more expeditious attainment for the area. Power companies may identify economic advantages in situating CAIR controls to help the local area attain; for example, it might need to control fewer facilities for the area to reach attainment. These benefits may outweigh any additional marginal costs the company might incur by forgoing controls on another more distant plant. In any event, the intent of these consultations would not be to upset market behavior or incentives. Rather, we anticipate that these consultations will at most affect a few individual control decisions on the marginfor a few areas. In this regard, EPA notes that CAIR SIPs will be due in 2006, while local 8 hour ozone attainment plans will be due in 2007. EPA suggests that consultations on location of CAIR controls would be timely during state development of the CAIR SIP. c. Comments and responses Comments: For subpart 2 ozone nonattainment areas, several States expressed agreement with the proposed approach for implementing RACT consistent with section 182 of the CAA. Response: The EPA agrees with these comments. Comments: For subpart 1 ozone nonattainment areas, EPA received several comments for and against the options proposed for addressing RACT. Several State and industry commenters supported EPA's proposed approach that RACT would be met if the area is able to demonstrate attainment of the standard as expeditiously as practicable with emission control measures in the SIP. The reasons provided by these commenters were generally as follows: 7 States should be able to use their discretion in determining which control strategies are the most effective in addressing a particular area's air quality problem; flexibility is needed as areas differ in sensitivity to NOx and VOC reductions; EPA's regional modeling shows these requirements are unnecessary in many areas; and many of these areas violate the ozone standard primarily or entirely due to transport. The EPA also received comments, primarily from several States and environmental groups, opposing the approach that RACT would be met by control measures that are part of a SIP demonstrating attainment of the standard as expeditiously as practicable. These commenters made the following points: since section 172( c)( 1) of the CAA explicitly mandates RACT " at a minimum" in all nonattainment areas, Congress plainly intended to require RACT as a floor level of control technology in addition to any measures needed to demonstrate timely attainment; even where RACT does not advance attainment, it is needed in order to reduce the severity and number of violations; under this approach, the statutory RACT provisions add nothing to the statutory attainment mandate   which violates basic canons of statutory interpretation; RACT in nonattainment areas will substantially reduce transport of ozone and ozone precursors; for equity reasons, sources in similar areas should be subject to the same control; and RACT is a useful tool that should not be abandoned through flexibility mechanisms. Response: The general RACT provision under subpart 1 in the statute, is found in section 172( c)( 1). It is a portion of the RACM provision found in that same section. Our long standing interpretation of the RACM provision is that areas need only submit such RACM as will contribute to timely attainment and meet RFP, and that measures which might be available but would not advance attainment or contribute to RFP need not be considered RACM. This interpretation has been upheld in several recent court cases. See Sierra Club v. EPA, 294 F. 39 155, 162 ( DC Circuit, 2002) ( concerning the Metropolitan Washington, D. C., attainment demonstration) and Sierra Club v. EPA, No. 01 60537 ( 5th Circuit, 2002) ( concerning the Beaumont attainment demonstration). Since subpart 1 RACT is a portion of RACM, these cases also support a conclusion that, where we are dealing only with section 172 RACT, it is reasonable to require only such RACT as will meet RFP and advance attainment. In view of these court cases, EPA disagrees with the comments listed above opposing the approach that, in subpart 1 areas, RACT would be met by control measures in a SIP demonstrating attainment of the standard as expeditiously as practicable and meeting RFP. The EPA generally agrees with comments that States should have flexibility to determine which control strategies are the most effective in reaching attainment as expeditiously as 8 practicable and providing for RFP, and the CAA gives primary authority to States and local governments to select the mix of controls necessary to meet the NAAQS. In addition, EPA believes that section 172( c) is not the appropriate section of the CAA to address the transport of ozone and ozone precursors; EPA has conducted and is conducting rulemaking pursuant to sections 110 and 126 for that purpose. Finally, some commenters suggested, for equity reasons, that sources in similar areas should be subject to the same control. In the proposal, EPA suggested subpart 1 and 2 areas with the 8 hour ozone design values above 91 ppb should all be required to meet RACT. The EPA also proposed that RACT would be met in an area which demonstrates attainment within 3 years and submits the demonstration within 1 year. In the final rule, EPA has addressed equity concerns by taking portions of these two proposals, such that subpart 1 and 2 areas with attainment deadlines longer than 5 years after designation must meet the same RACT requirements. We believe ( longer than) 5 years is more appropriate than the 3 years proposed for this requirement since this approximates the maximum attainment date for subpart 2 ( moderate) areas subject to RACT and since this approach is consistent with the manner in which ROP/ RFP requirements are treated in the final rule. Therefore, in subpart 1 areas that do not request an extension beyond the initial 5 years after designation, the final rule indicates that RACT would be met by the emission control measures in a SIP that demonstrates attainment of the standard as expeditiously as practicable and meets RFP. In addition, the final rule requires subpart 1 areas with maximum attainment deadlines longer than 5 years after designation to meet the same RACT requirements as subpart 2 areas. This approach minimizes the RACT inequity with subpart 2 areas and provides flexibility for subpart 1 areas demonstrating attainment within 5 years. Comment: One commenter believes that new marginal nonattainment areas should be subject to RACT under the 8 hour standard just as they would have been subject to RACT immediately prior to the CAA Amendments of 1990. Response: Section 182( a) provides that marginal and higher classified areas for the 1 hour standard with pre 1990 RACT obligations had to submit corrections to their RACT rules within 6 months after classification under the 1990 CAA Amendments. To the extent that any 8 hour ozone nonattainment areas did have this obligation, they already met it. See footnote 60 in the June 2, 2003 proposal. The CAA does not require RACT for marginal areas other than the obligation to " correct" pre 1990 RACT requirements. Comment: The EPA received several comments for and against the proposal that States may use a prior RACT determination with 9 respect to the 1 hour ozone standard for purposes of meeting the RACT requirements for the 8 hour ozone standard. Further, EPA received comments on the proposal that a new RACT determination is required in cases where the initial RACT analysis under the 1 hour standard for a specific source or source category concluded that no additional controls were necessary. Several State and industry commenters supported EPA's proposed approach that a prior RACT analysis under the 1 hour ozone standard should meet RACT requirements under the 8 hour standard where major sources or source categories were previously reviewed and controls applied to meet RACT. These commenters stated that RACT is not specific to any particular ozone standard, such that once a source has met RACT, it has met RACT, whether or not the ozone standard is revised to become more ( or less) stringent; just as with the 15 percent VOC requirement, the statute provides no basis for duplicative imposition of RACT; and there is no basis in the statute to read in a new requirement for RACT. In addition, some industry commenters stated that electric generating units which meet title IV NOx control requirements would also meet the NOx RACT requirement. The EPA also received comments from several States opposing EPA's proposed approach. These commenters believe the NOx and VOC guidance is too old, needs updating and, in the case of NOx controls, the improvement over the last three years has been dramatic with controls previously considered to be BACT ( and therefore generally considered at the time to be more stringent than RACT) are now considered to be merely RACT. In addition, one State suggested the presumptive RACT level should be revised to at least 85 percent control or that NOx RACT should be defined as up to $ 10,000/ ton of pollutant removed. Two States disagreed with EPA's proposal that a new RACT determination should be required in cases where the initial RACT analysis under the l hour NAAQS found that no additional controls were necessary for a specific source or source category. They indicated such re analysis would be an unwise use of resources because it would not yield significant benefits. Further, they do not agree that a RACT determination is warranted for major VOC or NOx sources not in existence during the previous RACT determination, because new sources in 1 hour nonattainment areas have been permitted pursuant to the requirements for NSR and, where applicable, have already been subject to more stringent control requirements. Response: In 1992, EPA set presumptive NOx RACT for boilers as combustion modification, consistent with title IV acid rain requirements. For all other NOx stationary source categories, EPA guidance in 1994 indicated States should consider in their RACT determinations technologies that achieve 30 50 percent reduction within a cost range of $ 160 1300 per ton of NOx 10 removed. In the NOx SIP Call Rule, we reviewed all major NOx source categories and stated in the final rule that the NOx SIP Call controls, at less than $ 2,000/ ton, represent reductions beyond those required by RACT. We cannot agree with the suggestion of one State that EPA's RACT guidance should be revised to reflect 85 percent control and $ 10,000/ ton of pollutant removed because the comment lacked supporting documentation that these values represent feasible control levels for the many source categories affected by the RACT program. Many areas subject to the major source RACT requirement under the 8 hour ozone standard have previously addressed the RACT requirement with respect to the 1 hour ozone standard. For example, major sources located in States of the OTC were subject to the NOx RACT requirement in the mid 1990s. We believe that, in many cases, a new RACT determination under the 8 hour standard would result in the same or similar control technology as the initial RACT determination under the 1 hour standard because the fundamental control techniques, as described in the CTGs and ACTs, are still applicable. In cases where controls were applied due to the 1 hour ozone RACT requirement, we expect the incremental emissions reductions from application of a second round of controls would be small and would not be cost effective. In such cases, EPA believes the cost per ton of NOx removed associated with installing a second round of RACT controls ( and perhaps the removal of initial RACT controls) is likely to be beyond the RACT levels in our current guidance ($ 160$ 1300/ ton). In contrast, a RACT analysis for uncontrolled sources would be much more likely to find that RACT level controls are economically and technically feasible. The CTGs and ACTs for VOC were completed over a period from the late 1970s to mid 1990s and have not been updated. The CTGs are still used to presumptively define VOC RACT. The EPA issued NOx ACT documents between 1992 and 1995. In September 2000, updates to the NOx ACT documents were completed for stationary internal combustion engines and cement kilns. The NOx and VOC ACTs describe available control techniques and their cost effectiveness, but do not define presumptive RACT levels as the CTGs do. Updating the ACTs would not, by itself, change EPA's NOx or VOC RACT guidance, but it could provide information that would lead to a new conclusion as to which control measures constitute RACT for a specific source or source category. Since RACT can change over time as new technology becomes available or the cost of existing technology decreases, EPA does not agree with comments that once a source has met RACT, it has met RACT whether or not the ozone standard is revised. We agree that progress has been made in improving the cost effectiveness of some NOx and VOC controls. States and other interested parties should consider available information that may 11 supplement the CTG and ACT documents. In cases where additional information is presented, for example, as part of notice andcomment rulemaking on a RACT SIP submittal, States ( and EPA) would necessarily consider the additional data in reviewing what control obligation is consistent with RACT. Similarly, we encourage States to use the latest information available in making RACT determinations, whether it is in CTGs, ACTs, or elsewhere. The EPA agrees that it is more efficient for EPA to broadly assess what is RACT for a specific source category than for States to conduct source by source RACT determinations, especially considering that States need to initiate RACT programs in the near future ( as discussed in a separate comment/ response). The EPA's current RACT guidance may be used for purposes of the 8 hour standard. At the same time, we agree with comments that many of the CTGs/ ACTs have not been revised since issued and thus may not provide the most accurate picture of current control options. Therefore, we believe States must consider new information that has become available and certify that a 1 hour ozone RACT determination, even where controls were required, still represents an appropriate RACT level of control for the 8 hour ozone program. In the alternative, the State should revise the SIP to reflect a modified RACT requirement for specific sources or source categories. In summary, we believe the current NOx and VOC RACT guidance, including CTGs and ACTs, may continue to be used by States in making RACT determinations with respect to the 8 hour ozone standard. States should ensure that their SIPs accurately reflect RACT based on the current availability of technically and economically feasible controls. Therefore, in portions of 8 hour ozone nonattainment areas where major sources or source categories were previously reviewed and controls subsequently applied to meet the RACT requirement under the 1 hour standard, EPA allows States to review and, if appropriate, accept the initial RACT analysis as meeting the RACT requirements for the 8 hour standard. Absent data indicating that the previous RACT determination is no longer appropriate, the State need not submit a new RACT SIP for these sources. In such cases, the State should submit a certification as part of its SIP revision, with appropriate supporting information, such as consideration of new data , that it previously met the RACT requirement for these sources and that the previous determination still represents an appropriate RACT level of control. Where the initial RACT analysis under the 1 hour standard for a specific source or source category concluded that no additional controls were necessary, EPA believes a new RACT determination is needed. The new RACT determination is needed to consider whether more cost effective control measures have become available for sources 12 that were not previously regulated. A re analysis may determine that controls are now economically and technically feasible and should be required to meet RACT. Furthermore, in this situation, we expect the incremental emissions reductions to be significant, compared to the uncontrolled emissions levels, thereby reducing the cost per ton of emissions controlled and therefore more reasonably available. In all cases where additional information is presented as part of notice and comment rulemaking, including a RACT SIP submittal for sources previously controlled, States ( and EPA) must consider the additional information as part of that rulemaking. We agree with several State and industry comments that RACT requirements apply for major sources in any portion of the 8 hour nonattainment area not subject to a RACT program for the 1 hour standard. Some commenters objected to EPA's proposal that any major VOC or NOx source that did not exist during a previous RACT determination must be subject to a RACT determination as part of the SIP for the 8 hour ozone standard. These commenters stated that the BACT or LAER provisions would assure at least RACT level controls on such sources. We agree this should be true in many cases, but not all. The BACT/ LAER analyses do not automatically ensure compliance with RACT since the regulated pollutant or applicability thresholds may differ and the analyses may be conducted many years apart. States may, however, userely on information gathered from prior BACT or LAER analyses to help completefor a RACT analysis to the extent the information remains valid. We believe that the same rationale alsologic holds true for emissions standards for municipal waste incinerators under CAA section 111( d) and NSR/ PSD settlement agreements. Where the State is relying on these standards to represent a RACT level of control, the State should provide the public with a discussion of whether any new technologies have subsequently become availabletheir determination. For VOC sources subject to MACT standards, States may streamline their RACT analysis by including a discussion of the MACT controls and relevant factors such as whether VOCs are wellcontrolled under the relevant MACT air toxics standard, which units at the facility have MACT controls, and whether any major new developments in technologies or costs have been developedoccurred subsequent to the MACT standards. We believe that there are many VOC sources that are well controlled ( e. g., through add on controls or through substitution of non VOC non HAP materials for VOC HAP materials) because they are regulated by the MACT standards, which EPA developed under CAA section 112. Any source subject to MACT standards must meet a level that is as stringent as the best controlled 12 percent of sources in the industry. Examples of these HAP sources that may effectively 3However, there are some MACT categories for which it may not be possible to determine the degree of VOC reductions from the MACT standard without additional analysis; for example, the miscellaneous metal parts and products ( 40 CFR part 60, subpart MMMM) due to the uncertainty of the compliance method that will be selected.

13 control VOC emissions include organic chemical plants subject to the hazardous organic NESHAP ( HON), pharmaceutical production facilities, and equipment leads and wastewater operations at petroleum refineries. 3 We believe that, in many cases, it will be unlikely that States will identify emission controls more stringent than the MACT standards without identifying control options that would cost many thousands of dollars per ton. Unless the MACT standards do not actually result in decreases in VOC ( such as substitution of a non HAP VOC for a HAP VOC) and unless there are new technologies subsequent to the MACT standards that would lead to cost effective increases in the level of VOC control, We expect that often States may rely on the MACT standards for purposes of showing that a source has met VOC RACT.

Comments: Several State and industry commenters supported EPA's proposed approach. These commenters stated that the level of emissions reductions required by the NOx SIP Call is far greater than the level of reductions achieved by controls that have been determined to be NOx RACT. Other commenters pointed out that many companies have employed averaging programs for NOx SIP Call compliance and want this option preserved under the 8 hour ozone standard since requiring sources to individually meet NOx RACT requirements would greatly increase the costs of compliance at sources already subject to the NOx cap and trade program without achieving greater emissions reductions.

Text Moved Here: 1 Response: In some cases, a facility or a group of sources in a nonattainment area might choose to meet NOx RACT by adopting an emissions averaging concept within the area; e. g., over controlling one or more large units and not controlling other smaller units. We agree with comments that emission averaging and cap and trade programs such as the NOx SIP Call Rule achieve emission reductions at lower costs. The EPA's NOx RACT guidance, published on November 25, 1992 ( 57 FR 55625), was, in part, for the purpose of " enhancing the ability of States to adopt marketbased trading systems for NOx" and to encourage States to " structure their RACT requirements to inherently incorporate an 14 emissions averaging concept ( i. e., installing more stringent controls on some units in exchange for lesser control on others)." Since the NOx SIP Call requires greater reductions, on average, than RACT, ( see proposal notice at 68 FR 32839 and discussion below) we believe the average emissions across the facilities ( in this example) would be less than emissions under application of a RACT program alone. We would also expect this scenario to be a short term case since facilities may choose later to install controls on the smaller units and sell any excess allowances, depending on the projected cost of allowances. End Of Moved Text Comments: Several State and industry commenters supported EPA's proposed approach concerning RACT and the NOx SIP call. These commenters stated that the level of emissions reductions required by the NOx SIP Call is far greater than the level of reductions achieved by controls that have been determined to be NOx RACT. One State encourages EPA to provide this exemption to other areas subject to approved cap and trade programs in addition to those areas affected by the NOx SIP Call. The EPA also received comments, primarily from several States and environmental groups, opposing the approach. These commenters stated that there are no exceptions to the RACT mandates in either subpart 1 or subpart 2 for sources subject to SIP call cap and trade programs, and EPA is without authority to invent such an exception. Because the NOx SIP Call's cap andtrade program does not require emission control technologies to be installed at a particular source, some commenters conclude that RACT requirements are necessary and appropriate to ensure that all sources implement at least a minimum level of control. One State indicated there have been numerous cases where sources subject to the NOx SIP Call have not had to install controls comparable to RACT. Commenters also suggested that RACT is intended to be a benchmark for control technology at individual stationary sources, not a level of regional reductions. In addition, some commenters noted that the NOx SIP Call requirements are specific to the ozone season, where RACT requirements are year round. Consequently, these commenters recommended that EPA should also consider non ozone related nitrogen issues, including fine particles, visibility, nitrification and acidification of watersheds and eutrophication of coastal waters all of which would be reduced with year round controls. Response: As described below, EPA believes that sources meet ozone NOxNOx RACT requirements if they comply with the NOx SIP Call trading program or, in sStates where all CAIR reductions are achieved by EGUs, rules implementing CAIR. Accordingly, the State need not perform a NOx RACT analysis for sources subject to the State's emission cap and trade program where the cap and 4EPA analyzed data from IPM runs for the CAIR which project electricity generating units that are expected to have NOx controls in 2010; in the CAIR base case as few as 3 11 EGUs are projected to be without NOx controls and subject to an 8 hour ozone NOx RACT requirement. ( sSee Response to Comments document in the docket.).

5In the 1998 NOx SIP Call Rule, average costs of compliance were estimated at about $ 1500/ ton and average RACT level costs are less than $ 1300/ ton. Recent estimates of the projected cost of allowances are about $ 2000 4000/ ton ( NOx Budget Trading Program, 2003 Progress and Compliance Report, August 2004, EPA 430 R 04 010). With respect to RACT, we would note that in some cases, the State may determine that additional controls are not technically and economically feasible. Thus, even if the State analyzed 15 trade program has been adopted by the State or approved by EPA or a Federal implementation plan is in place meeting the NOx SIP Call requirements or, in sStates achieving CAIR reductions solely from EGUs, the CAIR NOx requirements. In addition, the State need not submit a new NOx RACT SIP for those sources. The EPA believes the RACT mandate in subpart 1 and subpart 2 applies in specific geographic areas but does not necessarily require every major source to install controls. For example, as discussed in a separate comment/ response, where we are dealing only with subpart 1 RACT, we only require such RACT as will advance attainment or meet RFP. Thus, EPA does not agree with commenters who conclude that RACT requirements are necessary and appropriate to ensure that all sources implement at least a minimum level of control or that RACT is intended to be a benchmark for control technology at all individual stationary sources. Some commenters pointed out that the NOx SIP Call requirements are specific to the ozone season, yet RACT requirements are year round. While there are some exceptions, EPA agrees that RACT usually is an application of controls year round; thus, there would be non ozone related nitrogen benefits, including fine particles, visibility, nitrification and acidification of watersheds and eutrophication of coastal waters due to year round controls. NOxNOx SIP cCall: We expect the vast majority of sources subject to RACT and rules implemented by the State under CAIR or the NOx SIP Call would choose to install RACT level control equipment rather than meet the NOx SIP Call requirements solely by purchasing allowances. 4 Most likely the cost for purchasing allowances will be higher than the cost for achieving a RACT level of control. 5 In addition, many units subject to CAIR or RACT for each source subject to the cap and trade program, that would not guarantee additional emissions reductions at each source because the RACT determination for some could conclude no additional controls are required.

6The EPA's 1992 NOx RACT guidance sets title IV equal to RACT and specifies emission rates three times larger than the rates later used for coal fired units in the NOx SIP Call ( 0.45 0.50 lb/ mmBtu versus 0.15).

7 Memorandum of March 16, 1994, from D. Kent Berry re: " Cost Effective Nitrogen Oxides ( NOx) Reasonably Available 16 the NOx SIP Call will install beyond RACT controls, as discussed below. We believe the combination of RACT level controls on the vast majority of sources and the installation of beyond RACT controls on many units will achieve at least a RACT level of control, on average, among sources subject to RACT in each nonattainment area. Meeting RACT inWe believe that this wayconclusion is consistent with EPA guidance allowing RACT to be met in the aggregate within a nonattainment area, rather than by each individual source. The EPA's NOx RACT guidance ( NOx General Preamble at 57 FR 55625) encourages States to develop RACT programs that are based on " areawide average emission rates." Thus, EPA existing policy allowed States canto submit a demonstration as part of their RACT submittal showing that the weighted average emission rate from sources in the nonattainment area subject to RACT   including sources reducing emissions to meet the NOx SIP Call or CAIR NOx requirements   meet RACT requirements. We agree with comments indicating the overall emission reduction due to the NOx SIP Call would be greater overall than with a RACT program alone, and we believe they would be greater within each nonattainment area. All States submitting SIP revisions to meet the NOx SIP Call ( October 27, 1998, 63 FR 57356) elected to require large boilers and turbines to comply with an emissions cap and trade program consistent with EPA's model cap and trade rule. As a result, all these sources are already subject to stringent control requirements. As described in the June 2, 2003 proposal, these sources collectively achieve more emissions reductions than would be required by application of RACT requirements to each source. In the NOx SIP Call control case, electricity generating units ( EGUs) achieve a 64 percent reduction beyond the base case requirements. 6 The non EGUs subject to the States' cap and trade program achieve a 60 percent reduction from uncontrolled levels. These EGU and non EGU reductions are clearly beyond the 30 50 percent expected from a RACT program. 7 We stated in the final rule that the NOx SIP Call Control Technology ( RACT)." U. S. Environmental Protection Agency, Research Triangle Park, North Carolina.

17 controls " represent reductions beyond those required by Title IV or Title I RACT." In addition, because the cap and trade program covers units serving a 25 megawatt generator, it requires emission reductions atfor many units emitting at less thanthat are below the general RACT threshold of 100 tpy.

Text Was Moved From Here: 1 Text Was Moved From Here: 2 as meeting the NOx RACT requirements.

These factors support EPA's judgment that sources in each nonattainment area that are subject to the SIP call trading program will, on average, achieve a RACT level of control. Whether our judgment that non EGU sources subject to the NOxNOx SIP call trading system meet RACT will continue to apply in the future depends upon how the state chooses to make the transition from the NOxNOx SIP call trading system to the CAIR trading system. After 2008, EPA will no longer administer the NOxNOx SIP call trading system and will only administer the CAIR trading system. A state subject to the NOxNOx SIP call has three choices for the transition. One, a state can bring its non EGU sources that are subject to the NOxNOx SIP call trading program into the CAIR trading program with the same emissions budget allowed by the state's current NOxNOx SIP call rules. Two, a state can adopt a SIP that regulates those non EGU sources at least as stringently as the state's current NOxNOx SIP call rules, but does not move those sources into the CAIR trading program. Three, a state can adopt a new SIP that meets its NOxNOx SIP call responsibilities, in whole or in part, by regulating sources other than the non EGU sources regulated by the state's current NOxNOx SIP call trading program rules. We believe it is unlikely that states are likely to choose the third option, given that its non EGU sources already would have complied with the NOxNOx SIP call requirements. Under the first two options, we believe that these non EGU sources would continue to satisfy RACT. Under the third option, the state would need to determine whether non EGU sources that had participated in the NOxNOx SIP call trading program continue to meet RACT ( either individually, or through averaging among sources within the nonattainment area).

Text Moved Here: 2 AFinally, as proposed, in cases where States have adopted controls for cement kilns consistent with the NOx SIP Call ( i. e., 8As described in the April 21, 2004 rule ( 69 FR 21608).

18 30 percent reduction), the State may choose to accept the NOx SIP Call requirements as meeting the NOx RACT requirements for the 8 hour standard and need not submit a new NOx RACT SIP for those sources. In its RACT SIP submission, the State should identify the cement plants that are subject to NOx SIP Call controls and that, therefore, already meet RACT. The EPA received comments from States supporting the proposal. For the same reasons, EPA believes a State may choose to accept the Phase II NOx SIP Call control level for stationary internal combustion engines8End Of Moved Text 8 as meeting the NOx RACT requirements. CAIR: The question of whether CAIR satisfies RACT for EGUs subject to the CAIR trading program may arise in states not subject to the NOx SIP call: EPA believes that sources complying with CAIR requirements meet ozone NOX RACT requirements in States where CAIR reductions are achieved from EGUs only. As discussed more fully in the CAIR final rulemaking notice, EPA has set the 2009 CAIR NOx cap at a level that, assuming the reductions are achieved from EGUs, will result in EGUs installing emission controls on the maximum total capacity on which it is feasible to install emission controls by those dates. The 2015 NOx cap is specifically designed to eliminate all NOx emissions from EGUs that are highly cost effective to control ( the first cap represents an interim step toward that end). In general, we expect that the largest emitting sources will be the first to install NOx control technology and that such control technology will gradually be installed on progressively smaller emitting sources until the ultimate cap is reached. We do not believe that requiring source specific RACT controls on EGUs in nonattainment areas will reduce total NOx emissions from sources covered by CAIR below the levels that would be achieved under CAIR alone. In fact, if states chose to require smaller emitting sources in nonattainment areas to meet source specific RACT requirements by 2009, they would likely use labor and other resources that would otherwise be used for emission controls on larger sources. Because of economies of scale, more boiler makers and other resources may be required per megawatt of power generation for smaller units than larger units. In this case, the imposition of source specific RACT on smaller emitting sources by 2009 could increase costs as compared to the level that would result under CAIR. In any event, the imposition of source specific control requirements on a limited number of sources also covered by a cap and trade program would not reduce the total emissions from sources subject to the program. Under a cap and trade program such as CAIR, there is a given number of allowances that equals a given emission level. Source specific 9This phased approach is consistent with EPA NOxNOx RACT guidance issued March 9, 1994 by John Seitz, Director, OAQPS, " Nitrogen Oxides ( NOxNOx) Reasonably Available Control Technology ( RACT) for the Repowering of Utility Boilers."

19 control requirements may affect the temporal distribution of emissions ( by reducing banking and thus delaying early reductions) or the spatial distribution of emissions ( by moving them around from one place to another), but it does not affect total emissions. If source specific requirements were targeted at the units that can be controlled most cost effectively, then the imposition of source specific controls would achieve the same result as the projected CAIR cap and trade program. If not, however, the imposition of source specific requirements would make any given level of emission reduction more costly than it would be under the cap and trade program alone. Thus, the imposition of source specific RACT on EGUs covered by CAIR would not reduce total emissions, but would likely achieve the same total emission reductions in a more costly way. The EPA believes the CAIR NOxNOx requirements meet the definition of RACT for EGUs in states that require all CAIR NOxNOx reductions from EGUs. The EPA defined RACT as the lowest emission limitation that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility ( 44 FR 53762; September 17, 1979). We determined that CAIR's two phased schedule allows the implementation of as much of the NOxNOx controls as feasible by 2009, with a later time for the remaining controls ( 70 FR 25215). 9 Thus, we believe that EGUs subject to the CAIR NOxNOx controls meet the definition of RACT for NOxNOx ( in states that require all CAIR NOxNOx reductions from EGUs). Under CAIR, a State may elect to meet its state budget for NOx emissions solely through requiring reductions from EGUs or through requiring reductions from a combination of sources, including non EGUs. If the State requires reductions from sources other than EGUs, it is not eligible to participate in the EPA administered CAIR trading program. Additionally, separate provisions of the CAIRCAIR rule allow States to choose to allow large NOx sources that are not electric generating units to optin to the program. If only part of the CAIR reductions are required from EGUs, and the balance of the reductions obtained from non EGU sources, then the stringency of CAIR EGU control would be diminished to some extent ( an amount that cannot currently be determined). Therefore, the rationale for our judgment that CAIR satisfies RACT would not apply if the Sstate's CAIR SIP achieves CAIR required reductions from sources other 10This assumes the ozone season in this example begins May 1. The maximum statutory timeframe for subpart 1 areas that do not seek an extension is June 15, 2009. Since the CAA requires attainment as expeditiously as practicable, some subpart 1 nonattainment areas may have an attainment date earlier than June 15, 2009.

20 than EGUs, or if the State allowed opt ins. In either event, the State would need to conduct RACT analyses for EGUs ( either on an individual basis, or using the averaging approach within the nonattainment area).

For clarity, it should be noted that a state has authority to conduct its own RACT analysis for any source. Also, this guidance in no way limits a State's discretion to require beyond RACT NOx reductions from any source ( including CAIR or NOx SIP Call sources) in a plan to demonstrate attainment of the healthbased ozone standards. In certain areas, States may choose to require NOx controls based on more advanced control technologies to provide for attainment of the ozone standards. Comments: Several States expressed support for the proposed RACT submittal date of 2 years after designation for subpart 1 and 2 areas. Other commenters suggested the RACT submittal date for subpart 1 areas should be 3 years after designation in order to coincide with the attainment demonstration submittal deadline and to allow a more efficient use of resources. In addition, comments from industry suggested a 48 60 month period is needed for installation of controls, rather than the 30 month period proposed. Response: As described in an earlier comment/ response, in subpart 1 areas that do not request an extension of their attainment date, RACT is met with the control requirements associated with a demonstration that the NAAQS is attained as expeditiously as practicable. The EPA agrees with commenters that it would be more efficient, in these areas, if the date for submittal of the RACT rules were to coincide with submittal of the attainment demonstration since RACT is closely tied to the attainment demonstration. Therefore, in the final rule, the RACT submittal date for these areas is the same as the submittal date for the attainment plan, which is 3 years after designation ( June 2007). Although EPA is not setting a specific RACT rule implementation deadline for these areas, as provided in the Phase 1 rule, controls must be implemented by the beginning of the attainment year ozone season. Thus, for example, States would need to require implementation no later than May 1, 2008 in order to help areas attain the ozone standard by a June 15, 2009 attainment date. 10 In some cases, the time from State rule 11In the 1990 CAA Amendments, Congress specifically added RACT requirements for major sources in section 182. Section 182 required the RACT rules to be implemented " as expeditiously as practicable" but no later than 30 months after the submittal deadline.

21 adoption to installation of controls by sources may be relatively short; in other cases, sources may need more time. Therefore, EPA encourages States to adopt any necessary rules expeditiously ( prior to the June 2007 deadline, where possible) so that sources have more than sufficient time to install the controls prior to the start of the attainment year ozone season. For subpart 2 moderate and above areas and areas within an OTR, the final rule is similar to provisions in section 182 of the CAA which require States to submit RACT rules for these areas within 24 months after the designation. Several commenters supported this approach. Since some States may rely on submittal of SIP revisions meeting CAIR to also satisfy RACT for some sources, the final rule extends the proposed RACT submittal date of 24 months to 27 months after designation ( September 15, 2006), to be consistent with the date for submittal of the CAIR provisions ( September 10, 2006). For areas subject to the 27 month RACT submittal date, EPA believes the proposed 30 month period for installation of controls is reasonable, given that this is the statutorilyprescribed period11 ( for the areas covered under subpart 2) and based on our prior experience with States adopting and implementing RACT requirements. Subsequent to the NOx RACT SIP revisions for the 1 hour standard subject to the 30 month CAA period, EPA approved NOx RACT SIP submittals in some areas which had been exempt from the requirements, including the Dallas and Houston areas, which required implementation within 2 years from the State adoption date. The EPA recently determined that a 24 month period is adequate for stationary internal combustion engines to install low emission combustion controls ( April 21, 2004; 69 FR 21633). The 60 month period ( June 15, 2011) for installation of controls suggested by some commenters was not adequately supported, i. e., there was a lack of detailed justification that more time is necessary. In addition, as described in an earlier comment/ response, EPA anticipates that many sources which applied controls due to RACT requirements with the 1 hour ozone standard will not need to install new controls for the 8 hour standard. Thus, because fewer sources will be subject to a new RACT requirement, there will be less demand for control equipment. States and many sources face a reduced burden compared to the same CAA requirement in the 1990s. 12Note, since the CAA requires attainment as expeditiously as practicable, some moderate nonattainment areas may have an attainment date earlier than June 15, 2010.

13" State Implementation Plans; General Preamble for Proposed Rulemaking on Approval of Plan Revisions for Nonattainment Areas" 44 FR 20372 at 20375. " Provide for implementation of all reasonably available control measures ( RACM) as expeditiously as practicable, insofar as necessary to assure reasonable further progress and attainment by the 22 Since the ozone season ( 40 CFR part 58, appendix D) does not begin for many areas until May 1, however, the final rule allows sources until the beginning of the area's 2009 ozone season ( generally May 1, 2009) rather than March 15, 2009 to install controls. Installation of controls before the 2009 ozone season is sufficient to provide the benefits for timely attainment of the ozone standard in areas with a 2010 or later attainment date. 12 And the short delay ( generally between March 15, 2009 and May 1, 2009) will cause no harm since it is prior to the ozone season, which is when ozone levels are most likely to be at harmful levels. Sources meeting NOx RACT through compliance with CAIR would be subject to the CAIR NOx caps beginning January 1, 2009. For subpart 1 areas that request an attainment date extension ( beyond 5 years after designation), the final rule sets the RACT submittal and implementation dates the same as required for subpart 2 moderate and above areas, except subpart 1 areas shall submit the RACT SIP with its attainment date extension request. The EPA believes this approach is reasonable and provides equity for subpart 1 and 2 areas with attainment dates beyond 5 years after designation.

2. Reasonably Available Control Measures ( RACM) a. Background As noted in the June 2, 2003 proposed rule, subpart 1 of part D includes general requirements for all designated nonattainment areas, including a requirement that a nonattainment plan provide for the implementation of all RACM as expeditiously as practicable, including such reductions that may be obtained through RACT. We have also issued guidance for implementing the RACM provisions of the CAA that interprets those provisions to require a demonstration that the State has adopted all reasonable measures to meet RFP requirements and to demonstrate attainment as expeditiously as practicable and thus that no additional measures that are reasonably available will advance the attainment date or contribute to RFP for the area. 13 The RACM required date. . ."

" State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990; Proposed Rule." 57 FR 13498 at 13560 ( April 16, 1992). In part this guidance said, " The EPA . . . indicated that where measures that might in fact be available for implementation in the nonattainment area could not be implemented on a schedule that would advance the date for attainment in the area, EPA would not consider it reasonable to require implementation of such measures. The EPA continues to take this interpretation of the RACM requirement." As an example, with regard to one possible list of measures ( TCMs under section 108( f) of the Act) that guidance said, ". . . based on experience with implementing TCM's over the years, EPA now believes that local circumstances vary to such a degree from city to city that it is inappropriate to presume that all section 108( f) measures are reasonably available in all areas. It is more appropriate for States to consider TCM's on an areaspecific not national, basis and to consider groups of interacting measures, rather than individual measures." " Guidance on the Reasonably Available Control Measures ( RACM) Requirement and Attainment Demonstration Submissions for Ozone Nonattainment Areas." John S. Seitz, Director, Office of Air Quality Planning and Standards. November 30, 1999. Web site: www. epa. gov/ ttn/ oarpg/ t1pgm. html. Memorandum of December 14, 2000, from John S. Seitz, Director, Office of Air Quality Planning and Standards, re: " Additional Submission on RACM from States with Severe One Hour Ozone Nonattainment Area SIPs."

23 requirement, which is set forth in section 172( c)( 1) of the CAA, applies to all nonattainment areas that are required to submit an attainment demonstration, whether covered under only subpart 1 or also subpart 2. The June 2, 2003 proposal implied that the current policies and procedures related to RACM would continue to apply for the 8 hour ozone standard. The draft regulatory text provided that for each nonattainment area required to submit an attainment demonstration under § 51.908, the State would have to submit with the attainment demonstration a SIP revision demonstrating that it has adopted all control measures necessary to demonstrate attainment as expeditiously as practicable and to meet any RFP requirements. b. Summary of final rule Section 51.912( d) of the final rule reflects our proposal and draft regulatory text. For each nonattainment area required to submit an attainment demonstration under § 51.908, the State 14" State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990; Proposed Rule." 57 FR 13498 at 13560 ( April 16, 1992). In part this guidance said, " The EPA . . . indicated that where measures that might in fact be available for implementation in the nonattainment area could not be implemented on a schedule that would advance the date for attainment in the area, EPA would not consider it reasonable to require implementation of such measures. The EPA continues to take this interpretation of the RACM requirement." As an example, with regard to one possible list of measures ( TCMs under section 108( f) of the Act) that guidance said, ". . . based on experience with implementing TCM's over the years, EPA now believes that local circumstances vary to such a degree from city to city that it is inappropriate to presume that all section 108( f) measures are reasonably available in all areas. It is more appropriate for States to consider TCM's on an area

24 must submit with the attainment demonstration a SIP revision demonstrating that it has adopted all control measures necessary to demonstrate attainment as expeditiously as practicable and to meet any RFP requirements. In performing their RACM analysis, States should be aware of EPA's conclusions concerning compliance datesFinally, in the CAIR rulemaking ( May 12, 2005 ( 70 FR at 25221 et seq.)) EPA concluded that the CAIR compliance dates represents an agressive schedule that reflects the limitations of the labor pool, and equipment/ vendor availability, and need for electrical generation reliability for installation of NOx emission controls. States should be aware of these limitationsThus, we believe CAIR constitutes control as expeditious as practicable for EGUs for the area covered by the CAIR. States recognize these constraints in developing their own compliance schedules for NOx emission controls in meeting their CAIR and RACT responsibilities and use EPA's schedule as a guide. We believe CAIR constitutes control as expeditious as practicable for EGUs for the area covered by the CAIR. c. Comments and responses Comment: One commenter asked that we clarify whether old SIP measures become RACM. Response: Under EPA's policy concerning RACM, there are no measures that are automatically deemed RACM. The determination of whether a SIP contains all RACM requires an area specific analysis that there are no additional economically and technologically feasible control measures ( alone or in conjunction with others) that will advance the attainment date. 14 specific, not national, basis and to consider groups of interacting measures, rather than individual measures." Ibid.

15Improving Air Quality Through Land Use Activities; Transportation and Regional Programs Division, Office of Transportation and Air Quality, U. S. Environmental Protection Agency. EPA420 R 01 001. January 2001.

25 Comment: One commenter recommended that EPA revise its policy permitting SIPs to exclude otherwise feasible and potentially RACM that achieve emissions reductions in increments less than the amount necessary to advance the attainment date by a full year. The commenter believed this was an onerous standard that has stymied development of new control measures, particularly transportation control measures. The commenter believed EPA's RACM standard is especially harmful to the ability to provide SIP credit for Smart Growth land use, due to the long timeframe over which land is developed and redeveloped. The commenter believes that ever increasing suburbanization of our nation inflates the growth rate in VMT, thereby neutralizing improvements in vehicle emissions. The commenter claimed that a significant air quality improvement strategy for the 21st Century is compact mixed use pedestrian friendly development near frequent transit and believed that changing land use plans in this direction will benefit air quality by reducing the rate of growth in VMT and emissions. The commenter recommended that EPA be aware of this and revise its RACM standard to encourage local governments to alter their land use plans by providing a mechanism to give credit for air quality beneficial land use changes. Response: We do not believe our RACM policy has " stymied" development of new control technologies. New emission reduction technologies have surfaced and continue to surface to meet market demands resulting in part from CAA requirements, which include the requirements to demonstrate attainment as expeditiously as practicable and to make RFP toward attainment. In addition, viable control measures that produce emissions reductions can be approved into SIPs whether or not such measures meet the definition of RACM. Our RACM policy merely interprets the CAA as not mandating measures that do not contribute to expeditious attainment and timely RFP. The policy does not limit the potential for States to develop any control measures they wish, including land use measures. In fact, we have prepared a separate guidance document on how areas can develop and receive SIP credit for land use control measures. 15 We conclude, however, that to require areas to adopt and implement as RACM every control technology or measure that obtains a small amount 16In " State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990; Proposed Rule," we noted in the discussion of the RACM requirement that " In addition, any measure that a commenter indicates during the public commenter period is reasonably available for a given area should be closely reviewed by the planning agency to determine if it is in fact reasonably available for implementation in the area in light of local circumstances."

26 of emissions reductions   even if such measure would not advance the attainment date or is not required to meet RFP requirements   is not justified. Such a policy would be extremely burdensome to planning agencies, would detract from the effort to develop more reasonable and effective controls to meet the NAAQS, and would not be necessary to meet the statutory goal of expediting attainment. For these reasons, and because such requirement is not mandated by the statute, we are not adopting such a policy. Comment: One commenter believed that the RACM requirements for subpart 1 areas should be designed so as to not require extensive and unneeded control due to the fact that in most or all cases these controls will not be needed for the area to attain. Response: We believe the current RACM guidance, which applies to both subpart 1 and 2 areas, works to avoid extensive and unneeded controls, while ensuring that areas meet the healthbased NAAQS as expeditiously as practicable. Comment: One commenter believed our RACM guidance provides only minimum requirements to ensure attainment as expeditiously as practicable and believes that every nonattainment area must be required to consider adoption of measures that have been implemented in other areas, including the South Coast of California, so as to achieve progress and attainment as expeditiously as practicable. An area should be allowed to reject such measures only upon a showing that they are not practicable due to specified unique circumstances. The commenter urged that given the importance of this issue to fair, expeditious and lawful implementation of the 8 hour standard, EPA's final 8 hour standard implementation rule must explicitly require compliance with this guidance. Response: To meet the RACM provision of the CAA, the State must determine as part of its attainment demonstration whether there are additional measures that are feasible that would expedite attainment. In addition, EPA's RACM policy indicates that areas should consider all candidate measures that are potentially available, including any that have been suggested for the particular nonattainment area. 16 Although areas should The discussion of RACM in that document contains other relevant history concerning the RACM requirement.

27 consider all available measures, including those being implemented in other areas such as California, areas need adopt measures only if they are both economically and technologically feasible and will advance the attainment date. This interpretation of the section 172 requirements has recently been upheld by several courts. See, e. g., Sierra Club v. EPA, et al., 294 F. 3d 155 ( D. C. Circuit, 2002). Comment: Several commenters agreed with our proposal to require that the RACM analysis and measures be submitted within 3 years after the effective date of designation for the 8 hour NAAQS. Response: We acknowledge the support of the comments on the submission timing of the RACM requirements.

************ * * * *

FROM REG TEXT:

51.912 What requirements apply for reasonably available control technology ( RACT) and reasonably available control measures ( RACM) under the 8 hour NAAQS? ( a) What is the RACT requirement for areas subject to subpart 2 in accordance with section 51.903? ( 1) For each area subject to subpart 2 in accordance with section 51.903 of this part and classified moderate or higher, the State shall submit a SIP revision that meets the NOx and VOC RACT requirements in sections 182( b)( 2) and 182( f) of the Act. ( 2) The State shall submit the RACT SIP for each area no later than 27 months after designation for the 8 hour ozone NAAQS. ( 3) The State shall provide for implementation of RACT as expeditiously as practicable but no later than the first ozone season or portion thereof which occurs 30 months after the RACT SIP is due. ( b) How do the RACT provisions apply to areas required to submit a RACT SIPa major stationary source? ( 1) Volatile organic compounds and NOx are to be considered separately for purposes of determining whether a source is a major stationary source as defined in section 302 of the Act. ( 2) States may use current EPA guidance to assist in making RACT determinations and certifications that previously required RACT controls represent RACT for 8 hour implementation purposes. As new or updated EPA RACT guidance becomes available, States shall consider the new information in their RACT determinations or certifications. ( c) What is the RACT requirement for areas subject only to subpart 1 pursuant to section 51.902( b)? Areas subject only to subpart 1 pursuant to section 51.902( b) are subject to the RACT requirement specified in section 172( c)( 1) of the Act. ( 1) For an area that submits an attainment demonstration that requests an attainment date 5 years or less after designation for the 8 hour NAAQS, the State shall meet the RACT requirement by submitting an attainment demonstration SIP demonstrating that the area has adopted all control measures necessary to demonstrate attainment as expeditiously as practicable. ( 2) For an area that submits an attainment demonstration that requests an attainment date more than 5 years after designation for the 8 hour NAAQS, the State shall submit a SIP consistent with the requirements of section 51.912( a) and ( b) except the State shall submit the RACT SIP for each area with its attainment date extension request. ( d) What is the Reasonably Available Control Measures ( RACM) requirement for areas designated nonattainment for the 8 hour NAAQS? For each nonattainment area required to submit an attainment demonstration under section 51.908, the State shall submit with the attainment demonstration a SIP revision demonstrating that it has adopted all RACM necessary to demonstrate attainment as expeditiously as practicable and to meet any RFP requirements.


[Federal Register: June 23, 2008 (Volume 73, Number 121)]
[Rules and Regulations]
[Page 35344-35346]
[DOCID:fr23jn08-7]

-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 165

[Docket No. USCG-2008-0491]
RIN 1625-AA00

Safety Zone; Sigma Financial Fireworks, Lake Huron, Mackinac
Island, MI

AGENCY: Coast Guard, DHS.

ACTION: Temporary final rule.

-----------------------------------------------------------------------

SUMMARY: The Coast Guard is establishing a temporary safety zone on
Lake Huron, Mackinac Island, MI. This zone is intended to restrict
vessels from a portion of Lake Huron during the Sigma Financial
Fireworks, June 28, 2008, fireworks display. This temporary safety zone
is necessary to protect spectators and vessels from the hazards
associated with fireworks displays.

DATES: This rule is effective from 9 p.m. to 11:59 p.m. on June 28,
2008.

ADDRESSES: Documents indicated in this preamble as being available in
the docket are part of docket USCG-2008-0491 and are available for
inspection or copying at two locations: The Docket Management Facility
(M-30), U.S. Department of Transportation, West Building Ground Floor,
Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590,
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays, and the U.S. Coast Guard Sector Sault Ste. Marie, 337 Water
St, Sault Ste. Marie, MI, 49783 between 8 a.m. and 4 p.m., Monday
through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT: If you have questions on this
temporary rule, call LCDR Christopher Friese, Prevention Dept. Chief,
Sector Sault Ste. Marie, 337 Water St., Sault Ste. Marie, MI 49783;
906-635-3220. If you have questions on viewing the docket, call Renee
V. Wright, Program Manager, Docket Operations, telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Regulatory Information

    We did not publish a notice of proposed rulemaking (NPRM) for this
regulation. Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good
cause exists for not publishing an NPRM. The permit application was not
received in time to publish an NPRM followed by a final rule before the
effective date. Under 5 U.S.C. 553(d)(3), good cause exists for making
this rule effective fewer than 30 days after publication in the Federal
Register. Delaying this rule would be contrary to the public interest
of ensuring the safety of spectators and vessels during this event and
immediate action is necessary to prevent possible loss of life or
property.

Background and Purpose

    This temporary safety zone is necessary to ensure the safety of
vessels and spectators from hazards associated with a fireworks
display. Based on accidents that have occurred in other Captain of the
Port zones and the explosive hazards of fireworks, the Captain of the
Port Sault Ste. Marie has determined that fireworks launches proximate
to watercraft pose significant risk to public safety and property. The
likely combination of large numbers of recreation vessels, congested
waterways, darkness punctuated by bright flashes of light, alcohol use,
and debris falling into the water could easily result in serious
injuries or fatalities. Establishing a safety zone to control vessel
movement around the location of the launch platform will help ensure
the safety of persons and property at these events and help minimize
the associated risks.

Discussion of Rule

    A temporary safety zone is necessary to ensure the safety of
spectators and vessels during the setup, loading and launching of a
fireworks display in conjunction with the Sigma Financial Fireworks
display. The fireworks display will occur between 9 p.m. and 11:59 p.m.
on June 28, 2008.
    The safety zone for the fireworks will encompass all waters of Lake
Huron within a 1000-foot radius from the

fireworks launch site off of Mission Point, with its center in position
45[deg]50'.40'' N, 084[deg]36'.10'' W: [DATUM: NAD 83].
    All persons and vessels shall comply with the instructions of the
Coast Guard Captain of the Port or the designated on-scene
representative. Entry into, transiting, or anchoring within the safety
zone is prohibited unless authorized by the Captain of the Port Sector
Sault Ste. Marie, or his on-scene representative. The Captain of the
Port or his on-scene representative may be contacted via VHF Channel
16.

Regulatory Evaluation

    This rule is not a ``significant regulatory action'' under section
3(f) of Executive Order 12866, Regulatory Planning and Review, and does
not require an assessment of potential costs and benefits under section
6(a)(3) of that Order. The Office of Management and Budget has not
reviewed it under that Order.
    This determination is based on the minimal time that vessels will
be restricted from the zone and the zone is an area where the Coast
Guard expects insignificant adverse impact to mariners from the zones'
activation.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have
considered whether this rule would have a significant economic impact
on a substantial number of small entities. The term ``small entities''
comprises small businesses, not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.
    The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will
not have a significant economic impact on a substantial number of small
entities.
    This rule will affect the following entities, some of which may be
small entities: The owners and operators of vessels intending to
transit or anchor in a portion of Lake Huron off Mackinac Island,
Michigan, between 9 p.m. and 11:59 p.m. on June 28, 2008.
    This safety zone will not have a significant economic impact on a
substantial number of small entities for the following reasons: This
rule will be in effect for fewer than three hours for one event. Vessel
traffic can safely pass outside the safety zone during the event. In
the event that this temporary safety zone affects shipping, commercial
vessels may request permission from the Captain of the Port Sault Ste.
Marie to transit through the safety zone. The Coast Guard will give
notice to the public via a Broadcast to Mariners that the regulation is
in effect.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121), we offered to assist small
entities in understanding the rule so that they could better evaluate
its effects on them and participate in the rulemaking process. Small
businesses may send comments on the actions of Federal employees who
enforce, or otherwise determine compliance with, Federal regulations to
the Small Business and Agriculture Regulatory Enforcement Ombudsman and
the Regional Small Business Regulatory Fairness Boards. The Ombudsman
evaluates these actions annually and rates each agency's responsiveness
to small business. If you wish to comment on actions by employees of
the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard
will not retaliate against small entities that question or complain
about this rule or any policy or action of the Coast Guard.

Collection of Information

    This rule calls for no new collection of information under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Federalism

    A rule has implications for federalism under Executive Order 13132,
Federalism, if it has substantial direct effect on State or local
governments and would either preempt State law or impose a substantial
direct cost of compliance on them. We have analyzed this rule under
that Order and have determined that it does not have implications for
federalism.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $100,000,000 or more in any
one year. Though this rule would not result in such expenditure, we do
discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule will not effect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection
of Children from Environmental Health Risks and Safety Risks. This rule
is not an economically significant rule and does not concern an
environmental risk to health or risk to safety that may
disproportionately affect children.

Indian Tribal Governments

    The Coast Guard recognizes the treaty rights of Native American
Tribes. Moreover, the Coast Guard is committed to working with Tribal
Governments to implement local policies and to mitigate tribal
concerns. We have determined that these regulations and fishing rights
protection need not be incompatible. We have also determined that this
Rule does not have tribal implications under Executive Order 13175,
Consultation and Coordination with Indian Tribal Governments, because
it does not have a substantial direct effect on one or more Indian
tribes, on the relationship between the Federal Government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian tribes. Nevertheless, Indian Tribes
that have questions concerning the provisions of this Rule or options
for compliance are encourage to contact the point of contact listed
under FOR FURTHER INFORMATION CONTACT.

Energy Effects

    We have analyzed this rule under Executive order 13211, Actions
Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use. We have determined that it is not a ``significant
energy action'' under that order because it is not a ``significant
regulatory action'' under Executive Order 12866 and is not likely to
have a significant adverse effect on the supply, distribution, or use
of energy. The Administrator of the office of Information and
Regulatory Affairs has not designated it as a significant energy
action. Therefore, it does not require a statement of Energy Effects
under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15

U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through the Office of Management and Budget, with an explanation of why
using these standards would be inconsistent with applicable law or
otherwise impractical. Voluntary consensus standards are technical
standards (e.g., specifications of materials, performance, design, or
operation; test methods; sampling procedure; and related management
system practices) that are developed or adopted by voluntary consensus
standards bodies.
    This rule does not use technical standards. Therefore, we did not
consider the use of voluntary consensus standards.

Environment

    We have analyzed this rule under Commandant Instruction M16475.lD
which guides the Coast Guard in complying with the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and
have concluded that there are no factors in this case that would limit
the use of a categorical exclusion under section 2.B.2 of the
Instruction. Therefore, this rule is categorically excluded, under
figure 2-1, paragraph (34)(g), of the Instruction, from further
environmental documentation. This event establishes a safety zone;
therefore, paragraph (34)(g) of the Instruction applies.
    A final ``Environmental Analysis Check List'' and a final
``Categorical Exclusion Determination'' are available in the docket
where indicated under ADDRESSES.

List of Subjects in 33 CFR Part 165

    Harbors, Marine safety, Navigation (water), Reporting and
recordkeeping requirements, Security measures, and Waterways.

0
For the reasons discussed in the preamble, the Coast Guard amends 33
CFR part 165 as follows:

PART 165--REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS

0
1. The authority citation for part 165 continues to read as follows:

    Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. Chapter 701; 50
U.S.C. 191, 195; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Pub. L.
107-295, 116 Stat. 2064; Department of Homeland Security Delegation
No. 0170.1.

0
2. A new temporary Sec.  165.T09-0491 is added as follows:

Sec.  165.T09-0491  Safety Zone; Sigma Financial Fireworks, Lake Huron,
Mackinac Island, MI.

    (a) Location. The following area is a temporary safety zone: All
waters of Lake Huron within a 1,000-foot radius from the Fireworks
launch site with its center in position 45[deg]50'40'' N,
084[deg]36'10'' W. [DATUM: NAD 83].
    (b) Effective period. This regulation is effective from 9 p.m. to
11:59 p.m. on June 28, 2008.
    (c) Regulations.
    (1) In accordance with the general regulations in section 165.23 of
this part, entry into, transiting, or anchoring within this safety zone
is prohibited unless authorized by the Captain of the Port Sault Ste.
Marie, or on-scene representative.
    (2) This safety zone is closed to all vessel traffic, except as may
be permitted by the Captain of the Port Sault Ste. Marie or his on-
scene representative.
    (3) The ``on-scene representative'' of the Captain of the Port is
any Coast Guard commissioned, warrant or petty officer who has been
designated by the Captain of the Port to act on his behalf. The on-
scene representative of the Captain of the Port will be aboard either a
Coast Guard or Coast Guard Auxiliary vessel.
    (4) Vessel operators desiring to enter or operate within the safety
zone shall contact the Captain of the Port Sault Ste. Marie or his on-
scene representative to obtain permission to do so. The Captain of the
Port or his on-scene representative may be contacted via VHF Channel
16. Vessel operators given permission to enter or operate in the safety
zone must comply with all directions given to them by the Captain of
the Port Sault Ste. Marie or his on-scene representative.

    Dated: June 11, 2008.
M.J. Huebschman,
Captain, U.S. Coast Guard, Captain of the Port Sault Ste. Marie.
[FR Doc. E8-14049 Filed 6-20-08; 8:45 am]

BILLING CODE 4910-15-P


[Federal Register Volume 79, Number 233 (Thursday, December 4, 2014)]
[Notices]
[Page 72056]
[FR Doc No: 2014-28524]

-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

Agency Information Collection Activities: Requests for Comments;
Clearance of Renewed Approval of Information Collection: Fractional
Aircraft Ownership Programs

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice and request for comments.

-----------------------------------------------------------------------

SUMMARY: In accordance with the Paperwork Reduction Act of 1995, FAA
invites public comments about our intention to request the Office of
Management and Budget (OMB) approval to renew an information
collection. Fractional Ownership is a program that offers increased
flexibility in aircraft ownership. Owners purchase shares of an
aircraft and agree to share their aircraft with others having an
ownership share in that same aircraft. Owners agree to put their
aircraft into a ``pool'' of other shared aircraft and to lease their
aircraft to another owner in that pool.

DATES: Written comments should be submitted by February 2, 2015.

ADDRESSES: Send comments to the FAA at the following address: Ms. Kathy
DePaepe, Room 126B, Federal Aviation Administration, ASP-110, 6500 S.
MacArthur Blvd., Oklahoma City, OK 73169.
    Public Comments Invited: You are asked to comment on any aspect of
this information collection, including (a) Whether the proposed
collection of information is necessary for FAA's performance; (b) the
accuracy of the estimated burden; (c) ways for FAA to enhance the
quality, utility and clarity of the information collection; and (d)
ways that the burden could be minimized without reducing the quality of
the collected information. The agency will summarize and/or include
your comments in the request for OMB's clearance of this information
collection.

FOR FURTHER INFORMATION CONTACT: Kathy DePaepe at<PHONE_NUMBER>, or by
email at<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:
    OMB Control Number: 2120-0684.
    Title: Fractional Aircraft Ownership Programs.
    Form Numbers: There are no FAA forms associated with this
collection.
    Type of Review: Renewal of an information collection.
    Background: Each fractional ownership program manager and each
fractional owner must comply with the requirements of 14 CFR part 91,
subpart K. Information is used to determine if these entities are
operating in accordance with the minimum safety standards of these
regulations. The FAA will use the information it reviews and collects
to evaluate the effectiveness of the program and make improvements as
needed, and ensure compliance and adherence to regulations.
    Respondents: 11 fractional aircraft program managers/operators.
    Frequency: Information is collected on occasion.
    Estimated Average Burden per Response: 46 minutes.
    Estimated Total Annual Burden: 19,609 hours.

    Issued in Washington, DC, on December 1, 2014.
Albert R. Spence,
FAA Assistant Information Collection Clearance Officer, IT Enterprises
Business Services Division, ASP-110.
[FR Doc. 2014-28524 Filed 12-3-14; 8:45 am]
BILLING CODE 4910-13-P