[Federal Register Volume 86, Number 10 (Friday, January 15, 2021)]
[Proposed Rules]
[Pages 3888-3889]
[FR Doc No: 2021-00021]

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DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Docket No. FAA-2020-1082; Airspace Docket No. 20-ASW-10]
RIN 2120-AA66

Proposed Amendment of Class E Airspace; Wharton, TX

AGENCY: Federal Aviation Administration (FAA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: This action proposes to amend the Class E airspace extending
upward from 700 feet above the surface at Wharton Regional Airport,
Wharton, TX. The FAA is proposing this action as the result of an
airspace review caused by the decommissioning of the Wharton non-
directional beacon (NDB). The name and geographical coordinates of the
airport would also be updated to coincide with the FAA's aeronautical
database.

DATES: Comments must be received on or before March 1, 2021.

ADDRESSES: Send comments on this proposal to the U.S. Department of
Transportation, Docket Operations, West Building Ground Floor, Room
W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590; telephone
(202) 366-9826, or<PHONE_NUMBER>. You must identify FAA Docket No.
FAA-2020-1082/Airspace Docket No. 20-ASW-10, at the beginning of your
comments. You may also submit comments through the internet at https://www.regulations.gov. You may review the public docket containing the
proposal, any comments received, and any final disposition in person in
the Dockets Office between 9:00 a.m. and 5:00 p.m., Monday through
Friday, except federal holidays.
    FAA Order 7400.11E, Airspace Designations and Reporting Points, and
subsequent amendments can be viewed online at https://www.faa.gov/air_traffic/publications/. For further information, you can contact the
Airspace Policy Group, Federal Aviation Administration, 800
Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-
8783. The Order is also available for inspection at the National
Archives and Records Administration (NARA). For information on the
availability of FAA Order 7400.11E at NARA, email<EMAIL_ADDRESS>or go to https://www.archives.gov/federal-register/cfr/ibr-locations.html.

FOR FURTHER INFORMATION CONTACT: Jeffrey Claypool, Federal Aviation
Administration, Operations Support Group, Central Service Center, 10101
Hillwood Parkway, Fort Worth, TX 76177; telephone<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is
found in Title 49 of the United States Code. Subtitle I, Section 106
describes the authority of the FAA Administrator. Subtitle VII,
Aviation Programs, describes in more detail the scope of the agency's
authority. This rulemaking is promulgated under the authority described
in Subtitle VII, Part A, Subpart I, Section 40103. Under that section,
the FAA is charged with prescribing regulations to assign the use of
airspace necessary to ensure the safety of aircraft and the efficient
use of airspace. This regulation is within the scope of that authority
as it would amend the Class E airspace extending upward from 700 feet
above the surface at Wharton Regional Airport, Wharton, TX, to support
instrument flight rule operations at this airport.

Comments Invited

    Interested parties are invited to participate in this proposed
rulemaking by submitting such written data, views, or arguments, as
they may desire. Comments that provide the factual basis supporting the
views and suggestions presented are particularly helpful in developing
reasoned regulatory decisions on the proposal. Comments are
specifically invited on the overall regulatory, aeronautical, economic,
environmental, and energy-related aspects of the proposal.
Communications should identify both docket numbers and be submitted in
triplicate to the address listed above. Commenters wishing the FAA to
acknowledge receipt of their comments on this notice must submit with
those comments a self-addressed, stamped postcard on which the
following statement is made: ``Comments to Docket No. FAA-2020-1082/
Airspace Docket No. 20-ASW-10.'' The postcard will be date/time stamped
and returned to the commenter.
    All communications received before the specified closing date for
comments will be considered before taking action on the proposed rule.
The proposal contained in this notice may be changed in light of the
comments received. A report summarizing each substantive public contact
with FAA personnel concerned with this rulemaking will be filed in the
docket.

Availability of NPRMs

    An electronic copy of this document may be downloaded through the
internet at https://www.regulations.gov. Recently published rulemaking
documents can also be accessed through the FAA's web page at https://www.faa.gov/air_traffic/publications/airspace_amendments/.
    You may review the public docket containing the proposal, any
comments received, and any final disposition in person in the Dockets
Office (see the ADDRESSES section for the address and phone number)
between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal
holidays. An informal docket may also be examined during normal
business hours at the Federal Aviation Administration, Air Traffic
Organization, Central Service Center, Operations Support Group, 10101
Hillwood Parkway, Fort Worth, TX 76177.

Availability and Summary of Documents for Incorporation by Reference

    This document proposes to amend FAA Order 7400.11E, Airspace
Designations and Reporting Points, dated July 21, 2020, and effective
September 15, 2020. FAA Order 7400.11E is publicly available as listed
in the ADDRESSES section of this document. FAA Order 7400.11E lists
Class A, B, C, D, and E airspace areas,

air traffic service routes, and reporting points.

The Proposal

    The FAA is proposing an amendment to Title 14 Code of Federal
Regulations (14 CFR) part 71 by amending the Class E airspace extending
upward from 700 feet above the surface at Wharton Regional Airport,
Wharton, TX, by removing the Wharton RBN and associated extensions from
the airspace legal description; removing the exclusionary language from
the airspace legal description as it is no longer required; and
updating the name (previously Wharton Municipal Airport) and geographic
coordinates of the airport to coincide with the FAA's aeronautical
database.
    This action is the result of airspace reviews caused by the
decommissioning of the Wharton NDB which provided navigation
information for the instrument procedures this airport.
    Class E airspace designations are published in paragraph 6005 of
FAA Order 7400.11E, dated July 21, 2020, and effective September 15,
2020, which is incorporated by reference in 14 CFR 71.1. The Class E
airspace designations listed in this document will be published
subsequently in the Order.
    FAA Order 7400.11, Airspace Designations and Reporting Points, is
published yearly and effective on September 15.

Regulatory Notices and Analyses

    The FAA has determined that this regulation only involves an
established body of technical regulations for which frequent and
routine amendments are necessary to keep them operationally current, is
non-controversial and unlikely to result in adverse or negative
comments. It, therefore: (1) Is not a ``significant regulatory action''
under Executive Order 12866; (2) is not a ``significant rule'' under
DOT Regulatory Policies and Procedures (44 FR 11034; February 26,
1979); and (3) does not warrant preparation of a regulatory evaluation
as the anticipated impact is so minimal. Since this is a routine matter
that will only affect air traffic procedures and air navigation, it is
certified that this rule, when promulgated, would not have a
significant economic impact on a substantial number of small entities
under the criteria of the Regulatory Flexibility Act.

Environmental Review

    This proposal will be subject to an environmental analysis in
accordance with FAA Order 1050.1F, ``Environmental Impacts: Policies
and Procedures'' prior to any FAA final regulatory action.

List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

The Proposed Amendment

    Accordingly, pursuant to the authority delegated to me, the Federal
Aviation Administration proposes to amend 14 CFR part 71 as follows:

PART 71--DESIGNATION OF CLASS A, B, C, D, AND E AIRSPACE AREAS; AIR
TRAFFIC SERVICE ROUTES; AND REPORTING POINTS

0
1. The authority citation for 14 CFR part 71 continues to read as
follows:

    Authority: 49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O.
10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.

Sec.  71.1  [Amended]

0
2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11D,
Airspace Designations and Reporting Points, dated August 8, 2019, and
effective September 15, 2019, is amended as follows:

Paragraph 6005 Class E Airspace Areas Extending Upward From 700
Feet or More Above the Surface of the Earth.

* * * * *

ASW TX E5 Wharton, TX [Amended]

Wharton Regional Airport, TX
    (Lat. 29[deg]15'15'' N, long. 96[deg]09'16'' W)

    That airspace extending upward from 700 feet above the surface
within a 6.5-mile radius of Wharton Regional Airport.

    Issued in Fort Worth, Texas, on January 4, 2021.
Martin A. Skinner,
Acting Manager, Operations Support Group, ATO Central Service Center.
[FR Doc. 2021-00021 Filed 1-14-21; 8:45 am]
BILLING CODE 4910-13-P


1In addition, EPA is considering related recommendations from the Air Quality Management Work Group to the Clean Air Act Advisory Committee ( CAAAC) dated January 2005 [ available at: http:// www. epa. gov/ air/ caaac/ aqm. html# library ] in response to the recent National Research Council report on Air Quality Management in the United States ( January 2004) [ available for sale; individual pages available for viewing at http:// www. nap. edu/ books/ 0309089328/ html]. One of the recommendations to the CAAAQ 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 8/ 2430/ 05 2: 00 pm version 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. Section 183( c) of the CAA requires EPA to " revise and update such documents [ i. e., Control Techniques Guidelines and Alternative Control Techniques] as the Administrator determines necessary." As new or updated information becomes available States should consider the new information in their RACT determinations. States should consider the new information in any RACT determinations or certifications that have not been issued as of the time such an update becomes available. 1 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.

2This is generally expected with the submission of the attainment demonstration. The June 2, 2003 proposal addressed several aspects of the RACT requirement. 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. 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). For subpart 2 areas, we proposed to apply RACT as specified in subpart 2. We proposed ( in the draft regulatory text) to require that States submit their subpart 2 RACT SIPs within 2 years after the nonattainment designation. 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 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 ( i. e., an attainment date 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 ( i. e., an attainment date beyond 5 years after designation), the State shall submit the RACT SIP with its attainment date extension request. 2 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 a RACT SIP submission ( separate from the attainment demonstration) is required ( except certain subpart 1 areas, as described two paragraphs prior to this, 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, the State may submit a certification that the source is subject to a SIP approved RACT requirement. Such certification shall be accompanied by appropriate supporting information, such as consideration of information received from public commenters. For purposes of meeting the NOx RACT requirement, the State need not perform ( or submit) a NOx RACT analysis for sources subject to the State's emission cap and trade program where the cap and trade program has been adopted by the State that meets the NOx SIP Call requirements or, in States achieving CAIR reductions solely from EGUs, the CAIR NOx requirements. The EPA believes that the SIP provisions for those sources meet the ozone NOx RACT requirement. Furthermore, analysis of the effects of the NOxNOx SIP Call and CAIR ( see Technical Support Document) supports EPA's conclusion. A State that is relying on this conclusion for the affected sources should document this reliance in its RACT SIP.

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. 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. At their discretion, States are free to conduct case by case RACT determinations   or RACT determinations or certifications for groups of sources. As discussed below in greater detail, States may use information gathered from prior BACT or LAER analyses, to the extent it remains valid, to help complete a RACT determination. Similarly, emissions standards developed under 111( d) and NSR/ PSD settlement agreements may be considered. This will allow States, in a number of cases, to rely on these prior determinations for purposes of showing that a source is meeting RACT requirements. For VOC sources subject to MACT standards, States may streamline their RACT analysis by including a discussion of the MACT controls and considerations relevant to VOC RACT. We believe that this will allow States, in many cases, to rely on the MACT standards for purposes of showing that a source has met VOC RACT. Consistent with the proposed regulatory text for this rule [ section 51.912( b)( 1)], the final rule provides that, 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 ( in particular paragraph ( b)( 2) " Prior RACT Determinations"). A Note About Recommended Consultation. Based on our experience developing the NOx SIP cCall, CAIR, and the proposed Clear Skies lLegislation, 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 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 cCall 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 in which they are located address multiple air quality goals ( e. g., visibility, interstate air pollution, local attainment of standards for multiple pollutants). The EPA expects similar consultations between States and power sector companies on which plants will be controlled under CAIR, considering local attainment needs in planning for CAIR compliance. This consultation might promote opportunities to provide improved air quality earlier for large numbers of people. 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 foregoing less costly 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 affect individual control decisions for 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. The 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: 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 ( DCD. C. 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 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 be subject to VOC and NOx RACT requirements. 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 subpart 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 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 unitsEGUs 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 three3 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. Several State and industry commenters recommended 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. 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 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. 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 is inconsistent with EPA's previous conclusions regarding what level of control represents RACT and because the comment lacked supporting documentation that the suggested 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 OTCOzone Transport Commission 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, therefore, the cost for advancing that small additional increment of reduction would not be reasonable. 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 costs assumed in our current guidance noted above ($ 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 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 that information 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 applied to meet the RACT requirement under the 1 hour standard, States should 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 in its SIP a new RACT requirement 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 these sources are already subject to SIP approved requirements that still meet the RACT obligation. There are 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. In such cases, a new RACT determination is needed to consider whether more cost effective control measures have become available for sources that were not previously regulated. A reanalysis 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. Thus, the cost per ton of emissions controlled is more likely to make controls " reasonably available" than where a source had already installed controls to meet RACT for the 1 hour standard. 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 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. 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 source applicability may differ and the analyses may be conducted many years apart. States may, however, rely on information gathered from prior BACT or LAER analyses for athe purposes of showing that a source has met RACT analysis to the extent the information remains valid. We believe that the same logic 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 present their analysis with their determination during the SIP adoption process. 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 wellcontrolledwell controlled 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 occurred subsequent to the MACT standards. We believe that there are many VOC sources that are well controlled ( e. g., through addon 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 control VOC emissions include organic chemical plants subject to the hazardous organic NESHAP ( HON), pharmaceutical production facilities, and 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 that are not prohibitively expensive and are thus unreasonable. We believe this will allow States, in many cases, to rely on the MACT standards for purposes of showing that a source has met VOC RACT. Comments: Some 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. 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 units. We agree with comments that emission averaging and capand trade programs such as the NOx SIP Call Rule achieve emissions 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 market based trading systems for NOx" and to encourage States to " structure their RACT requirements to inherently incorporate an 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. Comments: Several State and industry commenters supported EPA's proposed approach concerning RACT and the NOx SIP cCall. 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 encouraged EPA to provide this approach 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 NOx SIP cCall cap and trade programs, and EPA is without authority to invent such an exception. Because the NOx SIP Call's cap and trade 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: In 2009, when sources in areas designated nonattainment for the 8 hour standard in June 2004 must comply with RACT, the NOx SIP call trading program is subsumed by the CAIR trading program. As described below, EPA believes that sources meet ozone NOx RACT requirements if they comply with the NOx SIP Call trading program or, in States where all CAIR reductions are achieved by EGUs, rules implementing CAIR. Accordingly, a State need not perform a NOx RACT analysis for non EGU sources that after 2008 continue to be subject to a SIP that regulates those non EGU sources equally or more stringently than the State's current rules meeting the NOx SIP call. In a NOx SIP Call State than ensures such reductions from non EGUs, the State need not perform a NOx RACT analysis for sources subject to the State's emission cap and trade program where theEGU sources if the State retains a summer season EGU budget under CAIR that is at least as restrictive as the EGU budget that was approved in the State's NOx SIP call SIP. In addition, the State need not perform a NOx RACT analysis for EGUs subject to a State cap and trade program has been adopted by the State that meets the NOx SIP call or in States achieving CAIRthat meets CAIR and achieves CAIR NOx reductions solely from EGUs under the CAIR NOx requirements. As noted above, the SIP should document that the State is relying on EPA's conclusion in this preamble that these levels of control meet RACT for the covered 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. However, since the NOx SIP call reductions will occur during the 5 months of the ozone season critical for high ozone concentrations for affected States, we believe that the RACT requirement will be satisfied for sources covered by the NOx SIP call. ( i) NOx SIP Call: We expect the vast majority of sources 4The EPA analyzed data from IPMthe Integrated Planning Model runs for the CAIR rulemaking which project electricity generating unitsEGUs that are expected to have NOx controls in 2010; in the CAIR base case ( reflecting the NOx SIP call but no CAIR controls), fewer than 10 EGUs are projected to be without NOx controls and subject to an 8 hour ozone NOx RACT requirement. ( See 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). 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 latter 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 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. We believe that this conclusion 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's existing policy provides for States to 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. 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 6The EPA's 1992 NOx RACT guidance provides that the controls required under title IV of the CAA are RACT controls 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). Base case refers to the situation absent NOxNOx SIP call controls.

7 Memorandum of March 16, 1994, from D. Kent Berry re: " Cost Effective Nitrogen Oxides ( NOx) Reasonably Available Control Technology ( RACT)." U. S. Environmental Protection Agency, Research Triangle Park, North Carolina. 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 NOx SIP Call rule that the reductions achieved by that program ". . . 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 for many units that are below the general NOx RACT threshold of 100 tpy for sources in the East. The facts noted above support EPA's judgment that sources in each nonattainment area that are subject to the NOx SIP cCall trading program will, on average, achieve at least a RACT level of control. Whether our judgment that non EGU sources subject to the NOx SIP cCall trading system meet RACT will continue to apply in the future depends upon how the State chooses to make the transition from the NOx SIP cCall trading system to the CAIR trading system. After 2008, EPA will no longer administer the NOx SIP cCall trading system and will only administer the CAIR trading system. A State subject to the NOx SIP cCall has three choices for the transition. One, a State can bring its non EGU sources that are subject to the NOx SIP cCall trading program into the CAIR trading program with the same emissions budget allowed by the State's current NOx SIP cCall rules. Two, a State can adopt a SIP that regulates those non EGU sources at least as stringently as the State's current NOx SIP cCall rules, but does not move those sources into the CAIR trading program. Three, a State can adopt a new SIP that meets its NOx SIP cCall responsibilities, in whole or in part, by regulating sources other than the non EGU sources regulated by the State's current NOx SIP cCall 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 NOx SIP cCall 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 8As described in the April 21, 2004 Phase II NOx SIP call rule ( 69 FR 21608). had participated in the NOx SIP cCall trading program continue to meet RACT ( either individually, or through averaging among sources within the non attainment area). Finally, as proposed, in cases where States have adopted controls for cement kilns consistent with the NOx SIP Call ( i. e., 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 perform a new NOx RACT analysis 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, are already subject to a SIPapproved requirement consistent with RACT. The EPA received comments from States supporting the proposal. Similarly, EPA believes a State may choose to accept the Phase II NOx SIP Call control level for stationary internal combustion engines888 as meeting the NOx RACT requirements and identify these obligations as RACT level controls in its RACT SIP. ( ii) CAIR: The EPA believeshas determined that EGU sources complying with CAIR requirements meet ozone NOX RACT requirements in States where CAIR reductions are achieved from EGUs only. We have two independent bases for this conclusion. First, if sStates implement CAIR through EGU reductions, we believe that EGU sources in each 8 hour nonattainment area in the CAIR region would have a weightedon average have an emission rate meeting RACT [ CHECKING THIS SENTENCE]. As noted above, EPA expects that the vast majority of EGU sources will control emissions rather than meet CAIR requirements solely by purchasing allowances. Our analyses for the CAIR rulemaking indicate that the cost of combustion controls is likely to be less than the price of allowances. In addition, our analysis of EGU controls in 8 hour ozone nonattainment areas in the CAIR region in 2010 indicates that most EGU sources would have either combustion controls, or controls that are more effective than combustion controls, without consideration of controls needed to comply with CAIR ( e. g., due to state rules implementing the NOx SIP call or other existing requirements). ( See footnotes 760 and 861 above and analysis in Response to Comments document.) Additional EGU controls are expected in response to CAIR. This bolsters our conclusion that on average, EGU sources within each 8 hour nonattainment area in the CAIR region would meet RACT. Further, we note that the CAIR 2009 seasonal NOx cap is more somewhat stringent than the NOx SIP call cap, which as discussed above results in EGU controls meeting RACT. Second, 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, would 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. Furthermore, we believe that source specific RACT could result in more costly emission reductions on a per ton basis. If States chose to require smaller emitting sources in nonattainment areas to meet sourcespecific RACT requirements by 2009 ( the required compliance timing for RACT), 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. Thus, the cost of achieving such reductions would be greater on a per ton basis. 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 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 effectivelycost 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 sourcespecific RACT on EGUs covered by CAIR would not reduce total emissions, but would likely achieve the same total emissions reductions in a more costly way. The EPA believes the CAIR NOx requirements meet the definition of RACT for EGUs in States that require all CAIR NOx 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 9This phased approach is consistent with EPA NOx RACT guidance issued March 9, 1994 by John Seitz, Director, OAQPS, " Nitrogen Oxides ( NOx) Reasonably Available Control Technology ( RACT) for the Repowering of Utility Boilers."

10The 11/ 25/ 92 NOx Supplement to the General Preamble ( 57 FR 55625) contains the following with respect to meeting NOx RACT: ". . . the State may allow individual owners/ operators in the nonattainment area ( or, alternatively, Statewide within an ozone transport region) to have emission limits which result in greater or lesser emission reductions so long as the areawide average emission rates described above are met on a Btu weighted basis." The that CAIR's two phased schedule allows the implementation of as much of the NOx 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 NOx controls meet the definition of RACT for NOx ( in States that require all CAIR NOx 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 CAIR rule allow States to choose to allow large NOx sources that are not electric generating unitsEGUs to opt in 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 be determined until a State submits a SIP indicating which sources are participating in the program). Therefore, in these cases, the above rationales for our judgment that CAIR satisfies RACT would not apply. However, even where a State allows opt ins from other source categories to meet CAIR emission levels, if a State transitions from the NOx SIP call level of control to CAIR by the first two transition options for non EGUs discussed above, the NOx RACT requirement would be met for EGUs ( and the State would not need to conduct RACT analyses for these EGUs) if the State retains a summer season EGU budget under CAIR that is at least as restrictive as the EGU budget that was set in the State's NOx SIP call SIP. Otherwise, the State would need to conduct RACT analyses for EGUs ( either on an individual basis, or using the averaging approach within the nonattainment area). 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). [ zzz DO WE KEEP THIS FOOTNOTE?] 10 parenthetical expression is intended to apply to situations in an Ozone Transport Area. Under section 184 of the CAA RACT is required across the entire Ozone Transport Region. Thus areas not otherwise subject to RACT ( e. g. attainment and unclassifiable areas) are required to adopt RACT rules. For these areas, this portion of the NOx Supplement provided that NOx RACT could be determined on a Statewide ( rather than nonattainment area wide) basis, because all areas of the State were subject to the RACT requirement.

11This assumes the ozone season in this example begins May 1. For clarity, it should be noted that a State has authority to conduct its own RACT analysis for any source. Also, a State has discretion to require beyond RACT NOx reductions from any source ( including CAIR or NOx SIP Call sources). 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 subpart 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, all controls necessary for attainment must be implemented by the beginning of the attainment year ozone season. For example, States would need to require implementation no later than May 1, 2008 where the area has a June 15, 2009 attainment date. 11 In some cases, the time from State rule 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 rules expeditiously ( prior to the June 12In 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. 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 SIP ( 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 period12 ( for the areas covered under subpart 2) and based on our prior experience with States adopting and implementing RACT requirements. For instance, subsequent to submission of 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. Also, 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 48 to 60 month period ( June 15, 2011) for installation of controls suggested by some commenters was not adequately supported with a 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 new requirements to meet RACT for the 8 hour standard than were subject to the 1 hour standard, 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. Since the ozone season ( 40 CFR part 58, appendix D) does not begin for many areas until May 1, however, for areas with an effective date of designation of June 15, 2004, the final rule allows sources until the beginning of the area's 2009 ozone 1357 months from June 15, 2004 effective date of designation ( 27 months to submission plus 30 months to implementation).

14Note, since the CAA requires attainment as expeditiously as practicable, some moderate nonattainment areas may have an attainment date earlier than June 15, 2010.

15" 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 required date. . ." season ( generally May 1, 2009) rather than March 15, 200913 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. 14 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. Additionally, some areas have ozone seasons that begin earlier than March 15, 2009 and would need to ensure sources are complying by that earlier date. For subpart 1 areas that request an attainment date extension ( i. e., an attainment date 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 are required to submit the RACT SIP with its attainment date extension request. 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 that provision 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. 15 The RACM " 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." 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 noted that EPA had issued policies and procedures related to RACM. The draft regulatory text ( section 51.912( d)) 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 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. We believe CAIR constitutes control as expeditious as 16Ibid. practicable for EGUs for the area covered by the CAIR. In the CAIR rulemaking ( May 12, 2005 (; 70 FR at 25221 et seq.)) EPA concluded that the CAIR compliance dates represent an aggressive 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 recognize these constraints in developing their own compliance schedules for NOx emission controls in meeting their CAIR and RACT responsibilities. 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. 16 The April 16, 1992, " General Preamble" provides some guidance on measures that the State should consider in making its RACM determination, including " any measure that a commenter indicates during a public comment period is reasonably available 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." Such measures can be rejected as not being RACM if they will not advance attainment or provide for RFP or if they are not economically or technologically feasible. 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 17Improving 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. 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, 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. 17 We conclude, however, that to require areas to adopt and implement as RACM every control technology or measure that obtains a small amount 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 a 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 subpart 2 areas, works to avoid extensive and unneeded controls, while ensuring that areas meet the health based 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 18In " 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." The discussion of RACM in that document contains other relevant history concerning the RACM requirement. 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. 18 Although areas should 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 or are necessary for RFP. 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.


[Federal Register Volume 86, Number 183 (Friday, September 24, 2021)]
[Notices]
[Page 53103]
[FR Doc No: 2021-20668]

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DEPARTMENT OF HOMELAND SECURITY

Federal Emergency Management Agency

[Internal Agency Docket No. FEMA-4485-DR; Docket ID FEMA-2021-0001]

Texas; Amendment No. 3 to Notice of a Major Disaster Declaration

AGENCY: Federal Emergency Management Agency, DHS.

ACTION: Notice.

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SUMMARY: This notice amends the notice of a major disaster declaration
for the State of Texas (FEMA-4485-DR), dated March 25, 2020, and
related determinations.

DATES: This amendment was issued August 5, 2021.

FOR FURTHER INFORMATION CONTACT: Dean Webster, Office of Response and
Recovery, Federal Emergency Management Agency, 500 C Street SW,
Washington, DC 20472,<PHONE_NUMBER>.

SUPPLEMENTARY INFORMATION: The notice of a major disaster declaration
dated March 25, 2020 for the State of Texas is hereby amended to
include the Hazard Mitigation Grant Program.

    All areas within the State of Texas are eligible for assistance
under the Hazard Mitigation Grant Program.

    The following Catalog of Federal Domestic Assistance Numbers
(CFDA) are to be used for reporting and drawing funds: 97.030,
Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis
Counseling; 97.033, Disaster Legal Services; 97.034, Disaster
Unemployment Assistance (DUA); 97.046, Fire Management Assistance
Grant; 97.048, Disaster Housing Assistance to Individuals and
Households In Presidentially Declared Disaster Areas; 97.049,
Presidentially Declared Disaster Assistance--Disaster Housing
Operations for Individuals and Households; 97.050, Presidentially
Declared Disaster Assistance to Individuals and Households--Other
Needs; 97.036, Disaster Grants--Public Assistance (Presidentially
Declared Disasters); 97.039, Hazard Mitigation Grant.

Deanne Criswell,
Administrator, Federal Emergency Management Agency.
[FR Doc. 2021-20668 Filed 9-23-21; 8:45 am]
BILLING CODE 9111-23-P


[Federal Register: October 26, 2005 (Volume 70, Number 206)]
[Notices]
[Page 61803-61804]
[DOCID:fr26oc05-72]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. EL06-5-000]

The City of Glendale, CA, Complainant v. Portland General
Electric Company, Respondent; Notice of Complaint Requesting Fast Track
Consideration

October 19, 2005.

    Take notice that on October 18, 2005, the City of Glendale,
California (Glendale) filed with the Commission a complaint against
Portland General Electric Company (PGE), alleging the PGE as failed to
follow and apply the requirements for the pricing, fees, and charges
for energy and firm system capacity that PGE sells to Glendale under
the Long-Term Power Sale and Exchange Agreement between Glendale and
PGE (Agreement). Glendale requests a Commission order directing PGE to
refund all amounts paid by Glendale in excess of the just and
reasonable prices and formulary rates of the Agreement, plus interest,
from the initial date of PGE's erroneous billing to present. Glendale
also requests fast-track consideration of its complaint in light of
PGE's August 2005 filing of a complaint for declaratory relief in the
U.S. District Court in Oregon, which addresses many of the same issues
and matters in dispute here.
    Any person desiring to intervene or to protest this filing must
file in accordance with Rules 211 and 214 of the Commission's Rules of
Practice and Procedure (18 CFR 385.211 and 385.214). Protests will be
considered by the Commission in determining the appropriate action to
be taken, but will not serve to make protestants parties to the
proceeding. Any person wishing to become a party must file a notice of
intervention or motion to intervene, as appropriate. Such notices,
motions, or protests must be filed on or before the comment date.
Anyone filing a motion to intervene or protest must serve a copy of
that document on the Applicant and all parties to this proceeding.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper using the ``eFiling'' link at http://www.ferc.gov.
 Persons unable to file electronically should submit an

original and 14 copies of the protest or intervention to the Federal
Energy Regulatory Commission, 888 First Street, NE., Washington, DC
20426.
    This filing is accessible on-line at http://www.ferc.gov, using the

``eLibrary'' link and is available for

review in the Commission's Public Reference Room in Washington, DC.
There is an ``eSubscription'' link on the Web site that enables
subscribers to receive e-mail notification when a document is added to
a subscribed docket(s). For assistance with any FERC Online service,
please e-mail<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll
free). For TTY, call<PHONE_NUMBER>.
    Comment Date: 5 p.m. Eastern Time on November 8, 2005.

Magalie R. Salas,
Secretary.
 [FR Doc. E5-5912 Filed 10-25-05; 8:45 am]

BILLING CODE 6717-01-P