190 Option 1, and several favored Option 2. Of those who commented on the draft regulatory text, one commenter opposed the provision, and one comment was unclear as to the commenter's concerns. One other commenter supported the provision. Several commenters had clarifying questions.

RESPONSE: Our rationale for the choice of Option 2 is presented above. A more detailed response to these and other comments appears in the RTC document.

4. Which portions of an area designated for the 8 hour NAAQS remain subject to the 1 hour NAAQS obligations?

( Section VI. C. 2 and 3 of proposal; see 68 FR 32820 32821;

51.905( c) of the draft and final rules)

a. Background. In the June 2, 2003 notice, we proposed that the obligation to retain or to adopt and retain a mandatory control obligation applies only to the part of the 8 hour ozone nonattainment area that was designated nonattainment for the 1 hour ozone NAAQS. The proposal also provided an example of how this would work.

The draft regulatory text provided additional specificity concerning geographic applicability of the antibacksliding provisions. The draft text provided that with two exceptions only the portion of the designated area for the 8 hour NAAQS that was required to adopt the applicable STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

191 requirements in 51.900( f) for purposes of the 1 hour NAAQS is subject to the obligations identified in paragraph ( a) of this section with several exceptions. The first exception is an area that is designated nonattainment for the 8 hour NAAQS but that was nonattainment for the 1 hour NAAQS with an unmet obligation to submit an attainment demonstration;

for these areas, the draft regulatory text provided that the entire area designated nonattainment for the 8 hour ozone NAAQS would be subject to the 10 percent advance increment of reduction. The second exception is an area that is attainment for the 8 hour NAAQS but that was nonattainment under the 1 hour NAAQS with an unmet obligation to submit an attainment demonstration; for these areas, the 110( l)

maintenance plan would have to demonstrate maintenance for the entire 8 hour ozone attainment area.

b. Summary of final rule. The final rule incorporates most aspects of the approach as that contained in the proposal and in the draft regulatory text. The final rule provides that only the portion of the designated area for the 8 hour NAAQS that was designated nonattainment for the 1 hour NAAQS is required to comply with the obligations in subparagraph 51.905( a), except if the State elects to provide an early increment of progress or an early 8 hour attainment STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

192 demonstration in lieu of an outstanding 1 hour attainment demonstration ( for an 8 hour NAAQS nonattainment area/ 1 hour NAAQS nonattainment area under 51.905( a)( 1)( ii)( B) and ( C)),

the increment of progress or early 8 hour attainment plan must apply for purposes of the entire 8 hour nonattainment area.

The final rule does not follow the approach in the proposal for the maintenance plan requirement for 8 hour attainment areas. The maintenance plans required under section 51.905( a)( 3)( iii) and ( 4)( ii) must demonstrate maintenance only for the area designated nonattainment for the 1 hour NAAQS at the time of designation of the 8 hour NAAQS. We received comment that recommended this obligation apply only to the area that was originally designated nonattainment for the 1 hour NAAQS. After considering this comment and our discussion in the preamble to the proposed rule, we agree with the commenter. In many States,

attainment areas are identified county by county rather than identifying a group of counties as an attainment area.

Thus, a State may have one or more groups of counties listed as a nonattainment area and then the remaining counties in the State are each identified individually as " attainment."

See e. g., 40 CFR 81.311 ( Georgia); 81.329 ( Nevada). Because STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

193 the area that historically had a problem attaining the ozone NAAQS is the area that was previously designated nonattainment for the 1 hour NAAQS, we believe it makes the most sense to require the maintenance plan for the area previously designated nonattainment for the 1 hour NAAQS.

We will set forth in 40 CFR Part 81, Subpart E, an identification of the boundaries of areas and the area designations and classifications for the 1 hour NAAQS at the time of the 8 hour designations.

c. Comments and responses COMMENTS ON JUNE 2, 2003 PROPOSAL: With regard to limiting the applicability of 1 hour obligations to that portion of the 8 hour nonattainment area that was also part of the 1

hour nonattainment area, one commenter supports this policy,

especially for the enhanced I/ M program. The commenter believes that the environmental benefit of requiring an extension of the enhanced I/ M program to areas recently added to the CMSA and designated nonattainment for the 8

hour NAAQS to be minimal, costly, and disruptive of the continued implementation of the enhanced I/ M program in the current 1 hour nonattainment area.

One commenter objected to requiring the substitute planning requirement ( 10 percent advance increment of STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

194 emission reductions) that applies to areas with an outstanding attainment demonstration for the entire 8 hour ozone nonattainment area. Instead, the commenter recommended it should only apply to the 1 hour nonattainment area.

RESPONSE: The final rule provides for retaining applicable emission control requirements for an area's 1 hour classification in only the original 1 hour nonattainment area.

As noted in the final rulemaking notice, we are now allowing the State to meet its unmet 1 hour attainment demonstration obligation by submitting the outstanding attainment demonstration or by taking one of two early actions for 8 hour planning: achieve a 5 percent advance increment of emission reductions or submit an early 8 hour attainment demonstration. The advance increment of emission reductions is applied throughout the entire 8 hour nonattainment area because, although it is being submitted in lieu of the 1 hour requirement, it is intended to address the 8 hour nonattainment problem. Similarly, the 8 hour attainment demonstration is intended to address attainment for the full 8 hour area. Because these alternatives to the 1 hour attainment demonstration are intended to address STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

195 attainment and progress toward the 8 hour NAAQS, the State would need to apply these requirements, if selected, to the entire 8 hour nonattainment area. We developed these alternatives in response to concerns that areas focus on the 8 hour NAAQS rather than on the 1 hour NAAQS and that continued planning obligations for the 1 hour NAAQS would burden State resources. States still have the flexibility to choose to develop the 1 hour attainment demonstrations for the 1 hour area if they would like to restrict the unmet planning obligation to the old area.

5. What obligations that applied for the 1 hour NAAQS will no longer apply after revocation of the 1 hour NAAQS for an area? ( Section VI. C. 3. d. of proposal; see 68 FR 32824;

Section 51.905( e) of proposed and final rules)

a. Background In the June 2, 2003 proposed rule ( 68 FR 328224), we proposed that once the 1 hour NAAQS is revoked,

EPA would no longer make findings of failure to attain that NAAQS and, therefore, we would not reclassify areas based upon a finding that the area failed to attain the 1 hour NAAQS. We indicated areas should focus their resources on attainment of the 8 hour NAAQS and stated that we believed it would be counterproductive to establish new obligations for States with respect to the 1 hour NAAQS after they have STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

196 begun planning for the 8 hour NAAQS. In addition, we noted that the attainment dates for areas classified as marginal,

moderate and serious had passed and that the CAA does not provide for reclassification of severe areas. We also noted other mechanisms that are available to make sure that States continue to make progress toward attaining the 8 hour NAAQS.

In addition, we indicated that conformity requirements would no longer apply for the 1 hour NAAQS once the NAAQS is revoked. The June 2, 2003 proposal explains that, under section 176( c) of the CAA, conformity applies to areas designated nonattainment or subject to the requirement to develop a maintenance plan pursuant to section 175A. Once the 1 hour NAAQS is revoked, areas would no longer be designated nonattainment for the 1 hour NAAQS or subject to the obligation to develop a maintenance plan under section 175A for the 1 hour NAAQS and thus would no longer be subject to the obligation to demonstrate conformity ( either transportation conformity or general conformity) for that NAAQS.

The draft regulatory text incorporated these concepts and also provided that, at the time of revocation of the 1

hour NAAQS, any provisions of applicable SIPs that require conformity determinations in such areas for the 1 hour NAAQS STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

197 will no longer be enforceable as a matter of law pursuant to section 176( c)( 5) of the CAA.

Additionally, the draft regulatory text reflected the discussion in the preamble to the proposed rule regarding what portions of a 1 hour maintenance plan could be revised or removed once the 1 hour NAAQS was revoked ( 68 FR 32823).

The draft regulatory text provided that areas with approved 1 hour maintenance plans could modify those plans to remove the obligation to submit a maintenance plan for the 1 hour NAAQS eight years after approval of the initial 1 hour maintenance plan and to remove the obligation to implement contingency measures upon a violation of the 1 hour NAAQS.

The draft regulatory text provided, however, that these requirements would remain enforceable until EPA approved a SIP removing or revising them and also provided that EPA would not approve such revisions until EPA approves an 8

hour attainment demonstration for an area designated nonattainment for the 8 hour NAAQS or an 8 hour maintenance plan for an area designated attainment for the 8 hour NAAQS.

Finally, EPA noted that such a SIP revision must also be consistent with sections 110( l) and 193 of the CAA.

b. Summary of final rule We are adopting the approach we set forth in our STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

198 proposed rule and providing clarification regarding the penalty obligations under sections 181( b)( 4) and 185A of the CAA that apply in severe areas that do not attain the 1 hour NAAQS by the applicable attainment date. The final rule provides that as of the effective date of revocation of the 1 hour NAAQS:

We will no longer make findings of failure to attain the 1 hour NAAQS and, therefore, ( a) we will not reclassify areas to a higher classification for the 1

hour NAAQS based on such a finding, and ( b) areas that were classified as severe for the 1 hour NAAQS are not obligated to impose fees as provided under sections 181( b)( 4) and 185A of the CAA.

Areas will not be obligated to continue to demonstrate conformity for the 1 hour NAAQS as of the effective date of the revocation of the 1 hour NAAQS.

An area with an approved 1 hour maintenance plan under section 175A of the CAA may modify its maintenance plan to: ( 1) remove the planning obligation to develop the second 10 year maintenance plan for the 1 hour NAAQS;

and, ( 2) replace the existing 1 hour contingency measure trigger with an 8 hour value. However, before the EPA can consider approving such a revision, certain STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

199 conditions must be met. If the area is designated nonattainment for the 8 hour ozone NAAQS, it must first have an approved 8 hour attainment demonstration in place. If the area has been designated as attainment for the 8 hour ozone NAAQS, it must first have an approved section 110( a)( 1) maintenance plan in place for the 8 hour NAAQS.

NSR under the 1 hour NAAQS will no longer apply in areas that are 8 Hour NAAQS nonattainment/ 1 Hour NAAQS nonattainment.

Each of these provisions is discussed further below.

( i) Findings of Failure to Attain the 1 hour NAAQS.

We continue to believe, as stated in the preamble to the proposed rule, that areas should focus their resources on attainment of the 8 hour NAAQS and that it would be counterproductive to establish new obligations for States with respect to the 1 hour NAAQS after they have begun planning for the 8 hour NAAQS. Moreover, we do not believe there is a basis to determine whether an area has met the 1

hour NAAQS once that NAAQS no longer applies; once the 1

hour NAAQS is revoked, there will not be an applicable attainment date with which to make a determination as to whether an area has met its attainment date or not. Since STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

200 the obligations to reclassify areas and impose fees are based on a determination that an area has failed to meet the NAAQS by the appropriate attainment date, those obligations also would no longer apply for the 1 hour NAAQS once the 1

hour NAAQS has been revoked.

While we did not specifically state in our proposal that severe areas would no longer be obligated to impose fees under sections 181( b)( 4) and 185A based on a failure to attain the 1 hour NAAQS after the effective date of the revocation of the 1 hour NAAQS, it is a logical extension of our proposal as that obligation is triggered by a finding of failure to attain. In addition, this is consistent with Appendix B of the June 2, 2003 proposal, which did not identify the section 185A fee provision as an applicable requirement.

( ii) Conformity under the 1 hour NAAQS. Regarding conformity, we are adopting the approach we set forth in our proposed rule( 68 FR 32823). The final rule provides that,

upon revocation of the 1 hour NAAQS for an area, conformity determinations will no longer be required for the 1 hour NAAQS. At that time, any provisions of applicable SIPs that require conformity determinations for the 1 hour NAAQS in such areas will no longer be enforceable pursuant to section STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

201 176( c)( 5) of the CAA.

Under section 176( c) of the CAA, conformity applies to areas designated nonattainment or subject to the requirement to develop a maintenance plan pursuant to section 175A for a specific NAAQS. Once the 1 hour NAAQS is revoked, areas designated attainment for the 8 hour NAAQS would no longer be subject to the obligation to demonstrate conformity for the 1 hour NAAQS and would have no conformity obligation for the 8 hour NAAQS. Likewise, even areas designated nonattainment for the 8 hour NAAQS would no longer have an obligation to demonstrate conformity under the 1 hour NAAQS.

The reason for this is that these areas would no longer be designated nonattainment for the 1 hour NAAQS and would no longer be required to develop a maintenance plan under section 175A for purposes of the 1 hour NAAQS.

( iii) 1 hour maintenance plans. Regarding the revisions to 1 hour maintenance plans, as noted above, upon revocation of the 1 hour NAAQS, an area with an approved 1 hour maintenance plan under section 175A of the CAA may modify the maintenance plan to remove both the obligation to submit a second maintenance plan for the 1 hour NAAQS 8 years after approval of the initial 1 hour maintenance plan and the obligation to implement contingency measures upon a STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

202 violation of the 1 hour NAAQS. The maintenance plan requirements will remain enforceable as part of the approved SIP until such time as EPA approves a SIP revision removing such obligations. We will not approve a SIP revision requesting these modifications until the State submits and EPA approves an attainment demonstration for the 8 hour NAAQS for an area designated nonattainment for the 8 hour ozone NAAQS or a maintenance SIP for the 8 hour NAAQS for an area designated attainment for the 8 hour NAAQS. Any revision to such SIP must meet the requirements of section 110( l) and 193 of the CAA.

( iv) New Source Review under the 1 hour NAAQS. As noted above concerning anti backsliding provisions related to growth measures, our June 2, 2003 proposal indicated that 1

hour NSR requirements would continue to apply in a nonattainment area if that area's classification under the 1 hour ozone standard ( at the time of designation for the 8

hour standard) is higher than its classification under the 8 hour standard ( 68 FR 32821). We indicated at proposal that Congress intended each area that was classified for the 1 hour ozone NAAQS under subpart 2 to adopt the specified control obligations in subpart 2 for the area's 1 hour classification. Accordingly, we proposed that the 1 hour STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

203 NSR obligations continue to apply after revocation.

We have now determined that it is inappropriate to mandate that a State continue to apply 1 hour nonattainment NSR requirements to such areas. Therefore, today's final rule specifies that, at the time that the 1 hour NAAQS is revoked, a State may request approval of a SIP revision to replace its 1 hour nonattainment NSR program with an NSR program based on its 8 hour classification. We will approve such changes to a State's SIP upon a finding based on section 110( l) of the Act that the change will not interfere with the State's ability to reach attainment of the 8 hour standard and will be consistent with reasonable further progress.

For example, upon approval of a SIP revision for a nonattainment area that we classify as marginal for the 8

hour standard, the major source threshold would be 100 tpy and the offset ratio would be at least 1: 1. Any lower major stationary source threshold and higher offset ratio that applied by virtue of the area's previous 1 hour classification would no longer apply.

Although the proposal identified nonattainment NSR as a measure to address growth and not a control obligation, we proposed to treat NSR in the same manner as control STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

204 obligations. We stated that such requirements should continue to apply based on Congressional intent to prohibit States from altering or removing provisions from SIPs if the SIP revision would jeopardize the air quality protection provided in the approved plan. 68 FR at 32819. We further concluded that Congress intended the specified control obligations in subpart 2 to continue to apply after revocation by virtue of the 1 hour classifications.

Upon further reflection, and consideration of public comments, we have revised our approach concerning NSR in areas that were non attainment for the 1 hour NAAQS and continue to be nonattainment under the 8 hour NAAQS. While some commenters believed that NSR requirements that are part of SIPs submitted to meet 1 hour NAAQS requirements should be retained, several preferred that the 1 hour NSR program be replaced by an NSR program under the 8 hour standard when the 1 hour standard is revoked. Other commenters supported removing the 1 hour NSR requirements based on a showing that removing the requirements would not interfere with attainment or maintenance of the 8 hour standard. We agree with these commenters that there is no need to retain 1 hour NSR programs where there is a finding under section 110( l)

that 8 hour NSR will not interfere with the State's ability STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

205 to reach attainment of the 8 hour standard. Moreover, we note major NSR only applies to new sources and to existing sources that have a physical change or change in the method of operation. Therefore, emission limitations and other requirements in NSR permits issued under 1 hour NSR programs will continue to be in force when the 1 hour NAAQS is revoked.

Also, our revised approach is more consistent with our longstanding treatment of NSR as a growth measure. We have historically treated control measures differently from measures to control growth. We provided no rationale in our proposal for treating control measures and growth measures in the same manner for purposes of the 8 hour standard, in contrast with our historical approach.

Unlike control requirements such as RACT and I/ M, the NSR program is a growth measure and is not specifically designed to produce emissions reductions. Instead, its purpose is to allow new source growth to occur without interfering with an area's ability to attain. The statute and regulatory history identify nonattainment NSR as a growth measure. Thus, we have previously concluded that NSR is not a " control" measure in the context of Section 175A maintenance plans. See 68 FR 25418, 25436 ( May 12, 2003). STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

206 Specifically, we explained that the requirement that contingency provisions include " control" measures does not include nonattainment NSR. We reasoned that the LAER and offset requirements included in existing NSR permits would remain in effect for those sources. Thus, the LAER and offset measures that were relied upon to attain the NAAQS would remain in effect after the nonattainment NSR program was replaced. We also noted that another preconstruction review program ( in that context, PSD) would be triggered to limit growth consistent with attainment in the future.

Those considerations apply with equal force here, as discussed in more detail below.

The role of the NSR permitting program as a growth measure, rather than a control measure, is evident in the structure of the Act, which delineates nonattainment NSR and control measures as separate SIP requirements. In the general requirements for nonattainment plan provisions, NSR permits are listed in CAA 172( c)( 5), while control measures are listed in CAA 172( c)( 6). Similarly, in defining implementation plan requirements, CAA 110( a)( 2)( C) sets forth the requirement for permit programs and CAA 110( a)( 2)( A) the control measures. As we explained in our STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

42 Part D New Source Review ( part D NSR) Requirements for Areas Requesting Redesignation to Attainment, October 14, 1994, from Mary D. Nichols.

207 1994 policy memo42, if the term " measures," as used in sections 110( a)( 2)( A) and 110( a)( 2)( C), had been intended to include PSD and part D NSR, there would have been no point to requiring that SIPs include both measures and preconstruction review. Section 172( e), which applies when EPA relaxes a NAAQS, only requires EPA to ensure that " controls" are no less stringent than they were for the more stringent NAAQS that has been replaced. It contains no specific requirements concerning growth measures.

Moreover, the statute is clear regarding the roles of the NSR program and control measures in nonattainment areas.

CAA 172( a)( 2) requires attainment as expeditiously as practicable considering control measures and CAA 172( c)( 1)

and ( c)( 6) require implementation of all control measures as expeditiously as practical to provide for attainment of the NAAQS by the area's attainment date. Conversely, CAA 173( a)( 1)( A) requires only that growth due to proposed sources, when considered together with the other plan provisions required under section 172, be sufficient to ensure RFP. Thus, unlike the control measures required by Section 172( c)( 1) and ( c)( 6), NSR is not a measure in and of STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

208 itself to assure attainment of the NAAQS. Rather, NSR should be considered in conjunction with a State's control measures to assure, consistent with the requirements in Section 172( c)( 4), that the emissions from new sources will be consistent with RFP and not interfere with attainment of the applicable NAAQS.

In light of these different statutory goals, we believe the appropriate review of NSR SIP revisions under the 8 hour standard is whether: 1) the SIP revision is consistent with reasonable further progress; and whether 2)

the SIP revision will not interfere with the ability to attain.

With regard to the specific requirements of 110( l), we do not believe that States will have difficulty demonstrating that replacing the 1 hour NSR program with an NSR program based on the area's 8 hour classification satisfies the Section 110( l) requirements. As one commenter noted, NSR is a prospective permitting program that only applies to future emissions from new and modified sources.

Any source that is subject to the 1 hour NSR requirements is required to continue to comply with those requirements. In this respect, there will be no degradation of air quality by virtue of this SIP change. Moreover, unlike control STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

209 measures, States do not rely on the NSR program to generate emissions reductions to move an area further toward attainment. The essential question is whether the NSR program changes will hinder future air quality improvements based on future growth projections. Such a question inherently involves a look at the present day air quality,

which is best reflected by the current 8 hour classifications. As long as the State plans to manage growth within the emissions inventory and include growth in their attainment plans, new source growth will be consistent with RFP and not interfere with the State's ability to attain. Therefore, we believe that the 8 hour NSR program requirements, based on an area's present air quality needs,

will assure that progress continues toward attainment despite future economic growth.

c. Comments and responses ( i) Comments on June 2, 2003 proposal:

COMMENT: Several commenters addressed this issue. Most agreed with the proposal, but recommended that we clarify that the section 185A penalty fees would not be imposed after the 1 hour NAAQS is revoked. A few of the commenters disagreed on the basis that EPA should not revoke the 1 hour NAAQS and that all requirements that apply for purposes of STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

210 the 1 hour NAAQS remain applicable.

Regarding conformity, the majority of commenters that addressed this issue objected to EPA's proposal. Most of these commenters believed the 1 hour NAAQS and any 1 hour SIP budgets should remain in effect, such that for an area that was designated nonattainment under the 1 hour NAAQS, or was redesignated to attainment and had an approved maintenance plan under the 1 hour NAAQS, conformity requirements would still apply. Given the variety of comments we received about how conformity will be implemented, in this section we provide a response following each type of comment.

Several commenters indicated that revoking the 1 hour NAAQS for conformity is backsliding, and offered several arguments for why the 1 hour budgets should be retained in 1 hour nonattainment and maintenance areas.

Some commenters indicated that once approved, the motor vehicle emissions budget is part of the applicable implementation plan, and EPA may not render them nugatory for conformity purposes. Commenters also asserted that EPA may not unilaterally revise a state's SIP or suspend it, and in order to require states to revoke the budgets in their SIPs, EPA would have to find the budgets inadequate. STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

211 Further, commenters argued that EPA may not lawfully allow states to discontinue implementation of the budgets in their current SIPs, and if states were to decide on their own that budgets no longer apply for conformity purposes, commenters said that EPA would be obligated to impose sanctions pursuant to section 179( a)( 3). Commenters asserted that states may not revise their SIPs to remove budgets without complying with section 110( l), which states that EPA cannot approve revisions " if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress ( as defined in section 171), or any other applicable requirement of this Act."

RESPONSE: The CAA specifically states that conformity applies only in " a nonattainment area..." and " an area that was designated as a nonattainment area but that was later redesignated by the Administrator as an attainment area and that is required to develop a maintenance plan under section 7505a of this title..." ( 42 U. S. C. 7506( 5)). Therefore, CAA section 176( c)( 5) restricts conformity to nonattainment areas and areas that are required to submit maintenance plans under section 175A; in these areas, the Federal government's sovereign immunity is waived so that states can require conformity to be determined by the U. S. Department STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

212 of Transportation. However, after revocation of the 1 hour NAAQS, the areas previously nonattainment for the 1 hour NAAQS are no longer nonattainment for that NAAQS.

Similarly, after revocation of the 1 hour NAAQS, the areas previously required to submit section 175A maintenance plans under the statute for the 1 hour NAAQS will no longer be required to do so. Therefore, after revocation the statute will no longer waive sovereign immunity to allow States to require the U. S. Department of Transportation to perform conformity determinations.

States are not taking any action to remove the budgets for the 1 hour ozone NAAQS in their SIPs, nor are they required to do so. In fact, EPA has proposed that 8 hour nonattainment areas would be able to use the 1 hour budgets for conformity for the 8 hour NAAQS, if they exist in an area ( November 5, 2003, proposed rule, 68 FR 62690). Thus,

although the 1 hour budgets would remain in the SIP, areas previously designated nonattainment or maintenance for the 1 hour NAAQS would no longer be required or even authorized to show conformity under CAA section 176( c)( 5) for that NAAQS. Similarly, EPA would have no grounds for imposing sanctions where conformity is not conducted in these areas because there would be no SIP planning or implementation STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

213 failure, since any SIP provisions requiring conformity would become enforceable under section 176( c)( 5) after revocation.

EPA also disagrees that States cannot revise their SIPs to remove budgets without a demonstration that 110( l) is met,

because states will not be revising their SIPs to remove budgets.

As we acknowledged in our June 2, 2003, proposal, EPA's conclusion that conformity cannot apply in 1 hour maintenance areas once the 1 hour NAAQS is revoked differs from the approach we planned to take in 1997. In 1997, we interpreted revoking the 1 hour ozone NAAQS to mean that conformity would not apply for the 1 hour ozone NAAQS in areas that were nonattainment for the 1 hour ozone NAAQS,

but that conformity would continue to apply for the 1 hour ozone NAAQS in areas with a maintenance plan. However, the 1997 interpretation would lead to an unfair and counterintuitive result: areas that had attained the NAAQS and had made the effort to establish a maintenance plan would have to continue a required program, but areas that had not attained would not. We reconsidered this result and found it to be unfair and inappropriate. Further, upon reanalyzing CAA section 176( c)( 5), we concluded that this interpretation did not fit with the text of the statute. STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

214 Although section 110( l) would normally require areas to demonstrate that removing prior SIP requirements would not interfere with any applicable requirements of the CAA, where the CAA itself now forbids application of a prior requirement such a demonstration would be unnecessary.

Further, it would interfere with the statutory limitation on the applicability of conformity to require conformity determinations in areas that are no longer required by the CAA to submit section 175A maintenance plans.

COMMENT: Commenters remarked that revoking the 1 hour ozone NAAQS is of particular concern in areas that are currently nonattainment or maintenance for the 1 hour ozone NAAQS that will be designated attainment for the 8 hour ozone NAAQS,

because once the NAAQS is revoked, these areas will no longer be subject to conformity. A couple of commenters made the point that revoking the 1 hour NAAQS would have economic implications for their area because without transportation conformity, the emissions from the transportation sector could grow without restraint and therefore, emissions from the industrial sector would have to be limited further. Commenters were also concerned that their region would lose the ability to forecast whether a violation could occur. STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

215 RESPONSE: We promulgated the 8 hour ozone NAAQS in response to the latest data and science regarding ozone; we believe the 8 hour ozone NAAQS is more protective of public health.

In 1997, EPA made the decision to replace the 1 hour ozone NAAQS with the 8 hour ozone NAAQS, because EPA concluded that the 1 hour NAAQS is not needed to protect health and welfare.

It is our conclusion that areas that are in attainment for the 8 hour NAAQS would not be subject to conformity because the statute explicitly limits the applicability of conformity to designated nonattainment and maintenance areas. These areas still have an incentive to monitor the growth of emissions from the transportation sector; if these areas violate the 8 hour NAAQS, EPA could redesignate them as nonattainment for the 8 hour NAAQS and conformity would then apply.

The EPA notes that although States could not implement conformity for attainment areas as a matter of federal law,

they could still work with their MPOs to estimate regional emissions that would be generated by the planned transportation system to see whether a violation could occur and to address motor vehicle emissions growth. These type of State activities may be done under State law, when STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

216 possible, or on a voluntary basis.

COMMENT: One commenter supports, in part, our proposal to allow amendment of maintenance plans, but takes issue with the fact that States would face a continuing obligation to implement contingency measures after revocation of the 1

hour NAAQS and the criteria for approval of such amendments.

After the 1 hour NAAQS is revoked, a State's obligation to implement contingency measures should automatically be lifted. The Illinois EPA recommends that amendments to the maintenance plans for these areas be approved after the 1

hour NAAQS has been revoked.

RESPONSE: Once we revoke the 1 hour NAAQS, the requirement for submission or subsequent revision of a section 175A maintenance plan under the 1 hour NAAQS no longer apply.

The State still has an obligation to ensure that air quality remains clean and to invoke contingency measures in accordance with the terms of the approved SIP. The final rule provides that, upon revocation of the 1 hour NAAQS, an area with an approved 1 hour maintenance plan under section 175A of the CAA may modify the maintenance plan to remove the obligation to submit a maintenance plan for the 1 hour NAAQS 8 years after approval of the initial 1 hour maintenance plan and to remove the obligation to implement STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

217 contingency measures upon a violation of the 1 hour NAAQS.

The final rule provides that EPA would not approve a SIP revision requesting these modifications until the State submits and EPA approves an attainment demonstration for the 8 hour NAAQS for an area initially designated nonattainment for the 8 hour ozone NAAQS or a maintenance SIP for the 8 hour NAAQS for an area initially designated attainment for the 8 hour NAAQS. Any revision to such SIP must meet the requirements of section 110( l) and 193 of the CAA. For areas that are not required to submit attainment demonstrations ( e. g., marginal areas), the SIP revisions that affect prior maintenance plans under the 1 hour NAAQS may be made when other portions of the 8 hour SIP are due ( e. g, the NSR provisions). The EPA disagrees with the comments that certain obligations in the maintenance plan should no longer apply upon revocation of the 1 hour NAAQS.

The EPA believes that in order to ensure that these revisions will not interfere with attainment or maintenance of the 8 hour NAAQS, these areas should first have an approved 8 hour attainment or maintenance SIP in place.

COMMENT: A commenter recommended that, in general, the rule should make it clear that any SIP revisions must comply with Sections 1l0( 1) and 193. STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

218 RESPONSE: The proposed rule   as well as the final rule   provides that EPA will not approve revisions to the maintenance plan until EPA approves the area's 8 hour SIP for either attainment or maintenance, which will ensure noninterference with the 8 hour NAAQS. However, the final rule also includes a requirement that the changes must be in accordance with sections 110( l) and 193. Several commenters supported the proposed rule. Other commenters believed the 1 hour NAAQS should not be revoked at all, and therefore there would not be a need for the anti backsliding provision regarding NSR.

Response: We address the issue of the revocation of the 1

hour NAAQS elsewhere in this notice and do not repeat it here.

( ii) Comments on draft regulatory text ( sect. 51.905( e) of the draft):

COMMENT: One commenter believes that proposed 40 CFR § 51.905( e)( l) contains an apparent misstatement that EPA should correct. That provision states that upon revocation of the 1 hour NAAQS, an area with an approved maintenance plan for that NAAQS may modify that plan to remove the obligation under CAA § 175A( b) to submit a " second round"

maintenance plan eight years after redesignation to STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

219 attainment and to remove the obligation to implement contingency measures upon a 1 hour NAAQS violation. The provision goes on to say that EPA will not approve a SIP revision making these modifications until the state submits and EPA approves: ( 1) an 8 hour attainment demonstration, if the area is designated nonattainment for the 8 hour NAAQS;

or ( 2) an 8 hour maintenance SIP under proposed 40 CFR § 51.905( a)( 3)( iii), if the area is designated attainment for the 8 hour NAAQS. Option ( 2) does not make sense, however.

Proposed 40 CFR § 51.905( e) by its terms applies to areas with approved 1 hour maintenance plans. Thus, these areas by definition have been redesignated to attainment   i. e., are no longer nonattainment   for the 1 hour NAAQS. Yet proposed 40 CFR § 51.905( a)( 3)( iii) applies only to areas that are " designated nonattainment for the 1 hour NAAQS at the time of revocation of the 1 hour NAAQS." Thus, contrary to the last clause of § 51.905( e)( l), areas that are maintenance for the 1 hour NAAQS and attainment for the 8 hour NAAQS cannot be subject to § 51.905( a)( 3)( iii).

RESPONSE: The commenter has pointed out a flaw in the proposal. The final rule has been modified from the proposal to account for this situation. A separate parallel provision has been established in section 51.905( a)( 4) STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

220 requiring 1 hour maintenance plan areas to submit a maintenance plan under section 110( a)( 1). As provided earlier, EPA has also changed the proposed regulatory text   consistent with the June proposal   to indicate that 51.905( a)( 3) and ( 4) apply, respectively to areas that are nonattainment or maintenance of the 1 hour NAAQS at the time of designation for the 8 hour NAAQS. Section 51.905( e)( 1)

has been modified to provide that the State would not be able to modify an existing 1 hour maintenance plan until EPA approves the new 8 hour maintenance plan.

COMMENT: One commenter provided suggested language changes to section 51.905( e) that would retain the section 175A maintenance plan and the conformity requirement.

RESPONSE: As noted above, once EPA revokes the 1 hour NAAQS, and the area is an 8 hour attainment area, section 175A maintenance provisions do not apply and conformity for the 1 hour NAAQS no longer applies.

6. What is the continued applicability of the NOx SIP Call after revocation of the 1 hour NAAQS? ( Section VI. C. 3. c. of proposal; see 68 FR 32824; section 51.905( f) of the proposed and final rules)

a. Background In the June 2, 2003 proposal ( 68 FR 32824),

we noted that it is important to ensure that the transition STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

43When EPA promulgated the NOx SIP Call, we required the same level of reductions for both the 1 hour and 8 hour ozone NAAQS ( 63 FR 57356, October 27, 1998). In response to the Court of Appeals remand of the 8 hour NAAQS, EPA stayed the 8 hour basis of the NOx SIP Call ( 65 FR 2674, January 18, 2000). However, since the same level of reductions was required for both the 8 hour and 1 hour NAAQS, the stay had no practical effect on States' compliance with the rule. Because EPA also stayed the 8 hour portion of the Section 126 Rule, we did not move forward to make the section 126 findings under the 8 hour NAAQS which would trigger the 8 hour control requirements ( 65 FR 2674, January 18, 2000). We plan to complete rulemaking action on the 8 hour petitions at the time we lift the 8 hour stay. All of the States affected by the 1 hour and/ or 8 hour Section 126 Rule are also covered by the NOx SIP Call. The Section 126 Rule contains a provision under which the Section 126 findings and control requirements would be withdrawn if States have approved SIPs meeting the NOx SIP Call. The EPA has already withdrawn the 1 hour Section 126 Rule in three States and the District of Columbia and proposed to withdraw the 1 hour rule in all other affected States except one. ( We expect to propose action with respect to the rule in the remaining State shortly.)

221 to the 8 hour NAAQS does not jeopardize the controls required to be in place under the NOx SIP Call rule and the section 126 rule ( i. e., the rules for addressing the longrange transport of ozone and its precursor, NOx). We jointly referred to these rules in the proposal as the NOx transport rules. We indicated that we plan to lift the stay of the 8 hour basis for the NOx transport rules. 43 Regardless of whether we lift that stay, the controls required have substantial benefits for reductions of both 1 hour and 8 hour ozone levels. We indicated that we STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

222 believe that relaxing such controls would be contrary to the principles we identified in the proposal for an effective transition. Thus, we proposed that States must continue to adhere to the emission budgets established by the NOX transport rules after the 1 hour NAAQS is revoked in whole or in part.

The draft regulatory text reflected the discussion in the June proposal.

b. Summary of final rule. We are adopting the approach we set forth in our proposed rule and draft regulatory text.

States must continue to adhere to the emission budgets established by the NOx transport rules after the 1 hour NAAQS is revoked. States retain the authority to revise control obligations they have established for specific sources or source categories under the NOx SIP Call rule so long as the State demonstrates consistent with section 110( l) that such modification will not interfere with attainment of or progress toward meeting the 8 hour NAAQS or any other applicable requirement of the CAA. We continue to believe that the reductions required by the NOx transport rules are necessary to address transported emissions for the 8 hour ozone NAAQS as well as the 1 hour ozone NAAQS.

c. Comments and responses STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

223 ( i) Comments on the June 2, 2003 proposal:

Only a handful of commenters addressed this issue, all of whom supported the proposal. Several of these commenters recommended that we lift the stay of the NOx transport rules with respect to the 8 hour NAAQS.

D. What is the Required Timeframe for Obtaining Emissions Reductions to Ensure Attainment by the Attainment Date?

( Section VI. E of the proposed rule ( 68 FR 32826); Section 51.908 of the draft and final rules)

1. Background. In the June 2003 proposal, we proposed that emissions reductions needed for attainment must be implemented by an area's attainment date. We noted this meant that emissions reductions must be implemented by the beginning of the final ozone season prior to the attainment date. For example, for areas with an attainment date in May 2010, the emissions reductions need to be implemented by the beginning of the 2009 ozone season because a determination of attainment will be based on air quality monitoring data from 2007, 2008 and 2009. The proposal cautioned that States should be aware of the consequences of failing to implement the control measures necessary for attainment sufficiently far in advance of their attainment date. As noted above, for areas covered under subpart 2, section STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

224 181( a)( 5) of the CAA allows can receive up to two 1 year attainment date extensions if twocertain criteria are met:

the area has complied with all requirements and commitments in the approved SIP and the area has no more than one exceedance of the NAAQS in the attainment year. As provided above, we've interpreted the second criterion to mean that to obtain the first 1 year extension, the area must be meeting the level of the NAAQS in the attainment year itself. 44 Thus, States should ensure that the emissions reductions are implemented to ensure that ozone levels for the ozone season preceding the attainment date are below the level of the NAAQS. If. However, if an area does not meet the eligibility requirements for the 1 year extension, it would be subject to a reclassification to a higher classification ( bump up). AWhile areas covered under subpart 1 are able to obtain up to two 1 year attainment date extensions, however there is no provision for a bump up in subpart 1. If an area covered under subpart 1 fails to attain, section 179 of the CAA provides that EPA publish a finding of failure to attain which starts a 1 year time frame for States to submit a SIP revision that provides for attainment within a specified time frame.

2. Summary of final rule. In section 51.908, we are STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

225 adopting the approach we set forth in our proposed rule,

namely that emissions reductions needed for attainment must be implemented by the beginning of the ozone season immediately preceding the area's attainment date. We believe that Congress contemplated that control measures would continue to be implemented up to the attainment year.

For example, section 182( c)( 2)( B) requires areas classified as serious or higher to achieve an average of 3 percent reduction in emissions per year over each 3 year period until the area's attainment date. If Congress intended areas to achieve all reductions needed for attainment 3 years prior to attainment, then the last 9 percent reductions required for serious and above areas would be reductions beyond those needed for attainment. We do not believe that Congress mandated these reductions in addition to the reductions needed to attain the NAAQS. In fact, this requirement is included in the statute as a part of the subparagraph addressing attainment and reasonable further progress, which indicates that Congress intended it to address progress toward attainment. This is further supported by the definition of reasonable further progress in section 171( 1) as " annual incremental reductions in emissions ... for the purpose of ensuring attainment ..." STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

44 As discussed in the section regarding the two 1 year attainment date extensions, section 172( a)( 2)( C), which applies to all pollutants, allows for a 1 year attainment date extension if the area has had " minimal exceedances" in the attainment year and section 181( a)( 5), which applies to ozone nonattainment areas classified under subpart 2, allows for a 1 year extension if the area has had no more than 1 exceedance in the attainment year.

226 Other provisions in the CAA also support the concept that areas do not need to achieve 3 years in advance of the attainment date the full complement of reductions needed for attainment. For example, Congress only provided marginal areas with 3 years to attain the NAAQS and did require at least minimal additional controls be implemented in such areas. In addition, the fact that Congress provided for two 1 year extensions of the attainment date also indicated that Congress believed that some areas might not be fully implementing all measures needed for attainment 3 years in advance of the attainment date. Rather, Congress contemplated that areas would have air quality healthy enough to make it substantially likely the area would attain within the next 1 or 2 years. 44 Finally, we note that the NAAQS itself does not contemplate that air quality must be at " attainment levels"

for each of the 3 years on which attainment is based.

Rather, attainment is determined based on an average of the STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

227 4th high reading at a monitor over a 3 year period. Thus,

the 4th high reading for an area could be above the NAAQS for one or both of the years preceding the attainment year,

but so long as the 4th high level for the other year( s) was low enough to produce an average at or below 0.084 ppm, the area would be attaining the NAAQS.

As noted in the June 2003 preamble, despite the fact that we believe an area need not have all controls implemented until the beginning of the final attainment season, the State needs to consider that attainment is based on a 3 year average. Thus, the State will need to ensure that implementation of controls is not unduly delayed. A State that plans to achieve reductions by the beginning of the ozone season prior to the attainment date may still experience meteorology conducive to very high ozone formation in that last ozone season that may result in the area having a 4th highest daily ozone concentration above the level of the 8 hour NAAQS, making it ineligible for the first of the 1 year extensions. Such an area   if classified under subpart 2   would then be reclassified ( bumped up) to a higher classification and be subject to additional planning requirements and mandatory control measures. Thus, a State should be aware of the consequences STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

45Memorandum, `` Guidance on the Reasonably Available Control Measures ( RACM) Requirement and Attainment Demonstration Submissions for Ozone Nonattainment Areas.'' John S. Seitz, Director, Office of Air Quality Planning and Standards. November 30, 1999. web site: http:// www. epa. gov/ ttn/ oarpg/ t1pgm. html.

228 of delaying too long to implement control measures needed for attainment. Additionally, in reviewing implementation timeframes in SIPs, EPA will consider whether those timeframes are as expeditious as practicable. A guidance memorandum from John Seitz of November 30, 199945 reiterates the need to implement measures as expeditiously as practicable:

In order for EPA to determine whether an area has provided for implementation as expeditiously as practicable, the State must explain why the selected implementation schedule is the earliest schedule based on the specific circumstances of that area. Such claims cannot be general claims that more time is needed but rather should be specifically grounded in evidence of economic or technologic infeasibility. While it may be appropriate for some control measures to be implemented shortly after adoption, the EPA recognizes that other measures may need a longer period. The EPA will review the State's submission to ensure that sufficient information is provided for the EPA to determine whether the State has adopted all RACM necessary for attainment as expeditiously as practicable and provided for implementation of those measures as expeditiously as practicable. The EPA will make those determinations based on the information provided by the State and any other information available to the EPA at the time the Agency approves or disapproves the attainment demonstration.

3. Comments and responses STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

229 COMMENT: Some commenters agreed with our proposal as written, i. e., to require that emission reductions needed for attainment be implemented by the beginning of the ozone season prior to the attainment year.

However, several commenters disagreed with the timeframe that was included in our proposal that required reductions be in place by the beginning of the ozone season prior to the attainment date because it precludes areas from realizing the benefit of Federal measures prior to developing additional local controls.

Another commenter stated that the attainment deadlines place an extraordinary burden on metropolitan areas to achieve the level of emissions reductions necessary to demonstrate attainment. The commenter felt that requiring emissions reductions to be implemented at the beginning of the ozone season prior to the attainment date is 1 year earlier than is required. The commenter stated that so long as there are no exceedances in the attainment year, i. e.,

having controls in place by the beginning of the ozone season of the attainment year, the area has meet the statutory requirement and could qualify for the first of two 1 year attainment date extensions allowed under the CAA.

The commenter further stated that controls for moderate STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

230 areas would need to be in place by about the same time the area's SIP must be submitted to EPA in order to provide 3 years of clean data for the demonstration of attainment.

Other commenters stated that all emissions reductions needed for attainment must be implemented in sufficient time to ensure attainment by the attainment date without relying on the CAA provisions for the 1 year extensions.

RESPONSE: Section 172( c)( 2) of the CAA requires that emissions reductions needed for attainment be phased in such that RFP toward attainment is achieved. For areas classified as moderate under subpart 2, their attainment date would be as expeditiously as practicable but no later than 6 years after the date of classification. Their ROP requirement would be at least a 15 percent VOC emissions reduction from the base year to be achieved no later than 6 years after the base year. However, if the area needed more than 15 percent VOC reductions in order to demonstrate attainment, then any additional reductions would also have to be achieved by the beginning of the ozone season prior to the area's attainment date.

States should be aware of theThe CAA requires each area to demonstrate attainment as expeditiously as practicable but no later than the maximum timeframe specified in the CAA STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

231 for the area. In addition, each area is required to adopt RACM. In determining whether measures are reasonably available, we consider cost, technical feasibility and whether implementation will advance the attainment date. An area cannot reject local control measures that are technically and economically feasible in favor of awaiting the implementation of national or regional controls, if to do so would delay attainment of the NAAQS. The consequences of failing to implement the control measures necessary for attainment sufficiently far in advance of the attainment date. For areas covered under subpart 2, section 181( a)( 5)

of the CAA does allow for up to two 1 year attainment date extensions in certain circumstances. The final rule on how those extension provisions would be implemented appears elsewhere in this preamble under the discussion of attainment dates. To obtain the first of the 1 year extensions, the CAA basically requires that the area be meeting the level of the NAAQS in the attainment year itself, even if the area has not actually attained considering the most recent 3 years of data. Thus, the States should ensure that the emissions reductions be implemented to ensure that ozone levels for the ozone season preceding the attainment date are below the level of the STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

232 NAAQS. If an area does not meet the eligibility requirements for a 1 year extension ( as proposed elsewhere in this rulemaking) in the attainment year, then the area would not be eligible for an attainment date extension, and EPA would have an obligation to reclassify the area to a higher classification (" bump up"). A marginal area with an attainment date 3 years after its nonattainment designation that fails to attain would be subject to bump up to at least moderate, and would then have to prepare a plan to attain within 3 years afterward ( 6 years after their nonattainment designation).

There is further discussion of this situation as it relates to the 1 hour ozone NAAQS in the General Preamble of April 16, 1992 ( 57 FR 13498, 13506); this discussion may have some applicability to the 8 hour NAAQS. are discussed above and in the proposed rule.

Areas covered under subpart 1 are also able to obtain up to two 1 year extensions of the attainment date ( see section 172( a)( 2)( C)). There is no provision for bump up in classification similar to that under subpart 2. However, if an area fails to attain, section 179 of the CAA provides that EPA publish a finding that the area failed to attain.

The State then must submit within 1 year after that STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

233 publication a revision to the SIP that provides for attainment within the time provided under section 179.

Section 179 also provides that the SIP revision must also include any additional measures that EPA may prescribe.

COMMENT: Several commenters suggested that nonattainment areas should be afforded the opportunity to install controls in time to monitor for attainment before the attainment deadline. The commenters believes that for many industrialized and metropolitan areas classified under Subpart 2 as marginal, moderate or serious, it will not be feasible to have stationary and mobile source controls in place 3 years before the attainment deadlines for the purposes of attainment monitoring. Pragmatically, state SIPS will not be finalized until mid 2007, at which time industrial facilities can begin the 18 24 month period for detailed engineering, permitting and procurement of NOx control equipment. The installation of controls would occur over a 5 year average facility turnaround period.

Furthermore, Tier II fuels and engines will just be entering the market as will cleaner diesel fuel and engines. It is virtually certain that many of these areas will not have the necessary emission reductions in place 3 years before the attainment deadline and will be required to rely on the STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

234 case by case extensions to the designated attainment deadlines. The commenters believe that Congress did not intend for EPA to establish attainment deadlines that would in a large number of cases automatically require areas to use deadline extensions; such areas have probably been misclassified. All nonattainment areas should be afforded the opportunity to install controls in time to monitor for attainment by the attainment deadline, but not three years prior to the attainment year. This would also eliminate the need for case by case extensions.

RESPONSE: The final rule does not require emission reductions to be in place three ozone seasons prior to the attainment date. However, the after the fact determination of whether an area actually attains the NAAQS by its attainment date must be done by looking back at the previous 3 years of ambient air quality data. However, aAs noted elsewhere in this preamble, the CAA provides for up to two 1 year extensions of the attainment date.

COMMENT: Marginal areas may not be able to demonstrate compliance in 3 years and the final rule should provide for automatic extensions for such areas. Additional time to implement all of these reductions may be required in order for marginal areas to comply. By creating an automatic STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

235 extension, EPA will avoid the inevitable cost of SIP nonattainment planning problems that communities will face if these measures are fully implemented.

RESPONSE: Subpart 2 does not requireThe general assumption for marginal areas to submit an attainment demonstration.

As noted elsewhere in this preamble, the CAA provides for up to two 1 year extensions of theis that they will be able to attain without significant additional emissions controls.

As such, section 182( a) specifies very little in terms of mandatory obligations for marginal areas. If an area needs additional controls and time to implement such controls, it may need to be reclassified to a higher classification. The CAA does not allow EPA to extend attainment date. However,

the CAA does not providedates for " automatic" extensionsa classification.

COMMENT: One commenter noted that EPA's proposal provides:

" For each nonattainment area, the State must provide for implementation of all control measures needed for attainment no later than the beginning of the attainment year ozone season." CAA § 51.908( e). Attainment of the eight hour8

hour NAAQS is based on analysis of 3 years of data. Part 51, App. I ¶ 2.3( a) (" The primary and secondary ozone ambient air quality standards are met at an ambient air STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

236 quality monitoring site when the 3 year average of the annual fourth highest daily maximum 8 hour average ozone concentration is less than or equal to 0.08 ppm."). Thus,

to meet the statutory requirement that SIPs provide for attainment, the rule must require SIPs to provide for implementation of all control measures needed for attainment no later than 3 years before the attainment date.

RESPONSE: We disagree with the comment. In section 51.908,

we are adopting the approach we set forth in our proposed rule, namely that emissions reductions needed for attainment must be implemented by the beginning of the ozone season immediately preceding the area's attainment date. Our rationale is presented above.

COMMENT: In addition, a commenter stated that this timing was inconsistent with the draft modeling guidance which essentially requires areas with an attainment date of 2013 to have their controls in place by 2011 to perform an attainment demonstration. The 2011 date is inconsistent fromwith the proposal which would require that the emissions reductions be in place in 2012. The commenter further stated that it seems inappropriate that the draft modeling guidance would be driving the schedule for implementation of control measures as opposed to the 8 hour implementation STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

237 rule.

RESPONSE: Comments on the modeling requirements will be addressed in Phase 2 of this rulemaking. The approach on when emission reductions needed for attainment must be in place was not based on the modeling requirements, but on the rationale stated in the preamble to the final rule. The modeling guidance will be revised for consistency with the final rule E. Conformity Under the 8 Hour Ozone Standard The June 2, 2003 proposal provided background discussion on issues related to transportation conformity and general conformity under the 8 hour ozone standard. See sections VI. M ( 68 FR 32841) and VI. N. ( 68 FR 32842).

However, we did not propose any rules related to either. We did receive a number of comments on this topic, however.

Responses to those comments are included in the response to comments document.

F. Comments on Other Issues We received comments on other issues associated with elements of this final rulemaking. We address those comments here. Comments on any other issues not discussed in this preamble or the RTC accompanying this final rule will be addressed in the second phase of this final STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

46EPA issued the memorandum " Boundary Guidance on Air Quality Designations for the 8 Hour Ozone National Ambient Air Quality Standard ( NAAQS or Standard)" on March 28, 2000, from John S. Seitz, Director, Office of Air Quality Planning and Standards, to the Air Directors, Regions I X, to provide guidance to State and local agencies and Tribes on designating areas and EPA's views on boundaries for nonattainment areas for the 8 hour NAAQS.

238 rulemaking.

1. Designations of nonattainment and attainment areas: We received a number of comments on the designation process.

RESPONSE: As we noted in the June 2, 2003 proposal, we did not propose to establish attainment/ nonattainment designations nor did we address the principles that will be considered in the designation process; we issued guidance on the principles that States should consider in making designation recommendations in March 2000.46 The designation process is being conducted separately.

2. Early Action Compacts ( EACs). ( Section VIII. A. 2. and 3 of the proposal; see 68 FR 32859).

We received a number of comments that addressed EACs.

The June 2, 2003 proposal included a description and background information concerning EACs, but the proposal made clear that we were not proposing any rulemaking on EACs in that notice.

RESPONSE: The comments we received will be addressed in the STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

239 rule that takes final action on the proposed rule to defer the effective date for EAC areas and therefore those comments are not addressed in this current rulemaking. We note that existing 1 hour maintenance areas will remain subject to all the requirements of that maintenance plan and transportation conformity, until the 1 hour standard is revoked 1 year following the effective date of the area's 8

hour designation. If EPA takes final action deferring the effective date of the 8 hour designation for an EAC area,

revocation of the 1 hour standard will also be effectively deferred for such area. Therefore, for such an EAC area that is a 1 hour maintenance area, the 1 hour maintenance plan, and 1 hour conformity, will continue to apply until 1 year after the 8 hour designation takes effect.

3. Health and environmental concerns: We received a number of general comments related to health and environmental concerns. Some of these cited national health statistics or provided information concerning the levels of ozone in their communities or information concerning the adverse health symptoms of themselves or friends, relatives,

or patients. These commenters generally cited this information as a way of encouraging EPA to ensure expeditious attainment of the 8 hour ozone NAAQS and in some STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

240 cases to support leaving the 1 hour NAAQS and its implementation process in place.

RESPONSE: We have addressed these latter concerns above in discussion of the classification system, revocation of the 1 hour NAAQS and the anti backsliding provisions that serve to ensure that the 8 hour NAAQS is attained as expeditiously as practicable with little or no delay in emission reductions as a result of revoking the 1 hour NAAQS.

4. Clarity and understandability of proposed rule: A number of commenters expressed concern about the complexity of the proposed rule, and the lack of apparent clarity and transparency. A number of these commenters complained that due to the large number of combinations of options that were possible from the proposal, it was difficult or impossible to determine exactly what the effect of the rule would be.

RESPONSE: One of our principles in drafting the proposal was to make the rule as understandable as possible.

However, the Supreme Court's ruling on our previous implementation approach left it to EPA to develop an implementation scheme with only general guidance as to how to proceed. Because the consequences of implementation under a particular approach might be fairly large, we felt obligated to place as many practicable options in our STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

241 proposal as possible to assess public reaction andby providing an opportunity for comment. This approach obviously added complexity to the proposal. We tried to minimize the complexity by setting forth two example frameworks for how some options could work in conjunction with each other. We also attempted in the draft regulatory text to focus on one set of options to illustrate how one set of options would work together. We attempted to simplify where we could and to provide other materials in the docket and on our web site for this rulemaking ( e. g.,

the " roadmap" and the crosswalks between the June 2, 2003 proposal and the draft regulatory text) to enable the reader to more easily see relations between various sections of the proposal and to provide a synopsis of the options being proposed. Although the very nature of the proposal was complex, we believe that the public had sufficient opportunity to comment on the rule.

5. Regulatory text: A number of commenters chastised us for not providing regulatory text with the proposal.

RESPONSE: As noted above, we did provide for public comment draft regulatory text, which reflected one set of proposed options. On August 6, 2002 ( 68 FR 46536), we published a notice of availability of the draft regulatory text for the STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

47OAR 2003 0079 0081, 0085 American Petroleum Institute ( API) requests for extension to the August 1st, 2003 comment deadline.

48OAR 2003 0079 0405 Request for Extension of Time for Filing Comments on Draft Regulatory Text for Proposed Rule to Implement the 8 Hour Ozone National Ambient Air Quality Standard ( NAAQS) submitted by Howard J. Feldman, Director, American Petroleum Institute.

49OAR 2003 0079 0542, 0589, 0590 Request for Extension of time for 15 day comment period on approaches to implement the 8 hour ozone NAAQS, submitted by Gregory Dana, Vice President Environmental Affairs, Alliance of Automobile Manufacturers.

OAR 2003 0079 0555 Request for extension of time for 15 day comment period on alternative approaches to implement the 8 hour ozone NAAQS submitted by Howard Feldman, Director Regulatory Analysis and Scientific Affairs, American Petroleum Institute ( API).

OAR 2003 0079 0572 Request for Extension of Public Comment Period submitted by Leslie S. Ritts, Counsel to The National Environmental Development Associations Clean Air Regulatory Project ( NEDA/ CARP).

242 proposed rule to implement the 8 hour ozone NAAQS. This notice started a 30 day public comment period on the draft regulatory text.

6. Requests for Extension of Comment Periods: We received a number of requests for extension of the comment periods on the three notices related to our proposal ( the June 2, 2003 proposal, 47 the notice of availability of the draft regulatory text, 48 and the notice reopening the comment period on the classification approach. 49) We did not grant STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

50See, for instance, OAR 2003 0079 0165 Letter from S. Page, Director, OAQPS to H. J. Feldman, Director, API, denying extension of comment period.

243 any of these requests. 50 We provided a 60 day comment period on our full implementation proposal, which was published on June 2, 2003. We also provided a separate 30 day comment period on draft regulatory text ( notice of availability was published on August 6, 2003). The October 21, 2003 notice was very narrow, supplementing just one aspect of the June 2, 2003 proposal. We believe that a 15 day comment period was sufficient to address this limited issue. That notice was based on several comments which were submitted during the public comment period. Those comments have been available to the public since early August.

We are committed by a consent decree to designate areas for the 8 hour ozone NAAQS by April 15, 2004. We believe it was essential to move forward to provide the public health protection that implementation of the 8 hour NAAQS will yield. We have recognized the strong interest from many stakeholders in our issuance of a final implementation rule prior to the April 2004 designation deadline. These interests, in conjunction with the reasons set forth above,

support our denial of requests for an extension of the comment period. However, as is normally the case, we STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

244 considered comments received after the close of the comment period to the extent we were able to do so without impeding the process for issuing the final rule.

G. Other Considerations Although Phase 2 of the final rule will address aspects of implementation of the 8 hour ozone NAAQS that are not addressed in this rulemaking, additional information is provided below regarding new source review for the 8 hour ozone NAAQS.

1. What happens if a source is in the process of PSD permitting at the time that the area in which it is located is designated as nonattainment for the 8 hour ozone NAAQS?

An area's designation at the time the final permit is issued determines which major New Source Review ( NSR)

requirements apply to the construction activity.

Accordingly, if a source has received its PSD permit before the area is designated nonattainment, it may construct under the terms of that permit if it commences an ongoing program of construction within the required time period and completes the project within a reasonable time. However, if the area is designated nonattainment before the permit is issued ( even if the reviewing authority deemed the PSD application complete), the PSD permit may not be issued. STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

245 The source would be required to submit a new application to comply with the requirements of the applicable nonattainment major NSR program before receiving a final permit and beginning construction. 40 CFR 52.24( k) and 40 CFR part 51,

appendix S. We have consistently applied this approach in past designation and redesignation situations.

This approach is consistent with CAA section 165, which states that PSD permitting requirements apply only in attainment and unclassifiable areas. The D. C. District Court of Appeals affirmed this plain reading of the statute in the Alabama Power decision [ 636 F. 2d 323]. In response to EPA's attempt to apply PSD permitting requirements in some nonattainment areas, the court stated, " After careful consideration of the statute and the legislative history, we must accept the contention of the industry petitioners that the phrase ` constructed in any area to which this part applies' limits the application of Section 165 to major emitting facilities to be constructed in [ attainment and unclassifiable areas]." The court went on to say, " The plain meaning of the inclusion in section 165 of the words ` any area to which this part applies' is that Congress intended location to be the key determinant of the applicability of the PSD review requirements." STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

246 This approach is also consistent with the regulatory text in the Federal PSD regulations. These regulations limit the applicability of PSD requirements to " an area designated as attainment or unclassifiable." 40 CFR 51.166( a)( 7)( i); 52.21( a)( 2)( i).

H. EPA's Final Action We are taking final action on key elements of the program to implement the 8 hour ozone NAAQS. This final rule addresses the following topics: classifications for the 8 hour NAAQS; revocation of the 1 hour NAAQS ( i. e., when the 1 hour NAAQS will no longer apply); how anti backsliding principles will ensure continued progress toward attainment of the 8 hour ozone NAAQS; attainment dates; and the timing of emission reductions needed for attainment. A summary of the rule appears in section IV of this preamble.

VI. STATUTORY AND EXECUTIVE ORDER REVIEWS A. Executive Order 12866: Regulatory Planning and Review Under Executive Order 12866 ( 58 FR 51735, October 4,

1993), the Agency must determine whether the regulatory action is " significant" and, therefore, subject to Office of Management and Budget ( OMB) review and the requirements of the Executive Order. The Order defines " significant regulatory action" as one that is likely to result in a rule STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

247 that may:

( 1) have an annual effect on the economy of $ 100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition,

jobs, the environment, public health or safety, or State,

local, or Tribal governments or communities;

( 2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;

( 3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or ( 4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order."

Pursuant to the terms of Executive Order 12866, it has been determined that this rule is a " significant regulatory action" because it raises novel legal or policy issues arising out of legal mandates. As such, this action was submitted to OMB for review. Changes made in response to OMB suggestions or recommendations will be documented in the public record.

B. Paperwork Reduction Act This action does not impose an information collection STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

248 burden under the provisions of the Paperwork Reduction Act,

44 U. S. C. 3501 et seq. This rule merely interprets the requirement to develop State implementation plans to achieve a new or revised NAAQS. This requirement is prescribed in the CAA sections 110 and part D, subparts 1 and 2 of Title 1. The present final rule does not establish any new information collection burden apart from any that required by law. A SIP contains rules and other requirements designed to achieve the NAAQS by the deadlines established under the CAA, and also contains a demonstration that the State's requirements will in fact result in attainment.

Such a document is not considered information collection.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency.

This includes the time needed to review instructions;

develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information;

adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

249 data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

C. Regulatory Flexibility Act The Regulatory Flexibility Act generally requires an Agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedures Act or any other statute unless the Agency certifies the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: ( 1) a small business that is a small industrial entity as defined in the U. S. Small Business Administration ( SBA) size standards.

( See 13 CFR 121.); ( 2) a governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

250 ( 3) a small organization that is any not for profit enterprise which is independently owned and operated and is not dominant in its field.

After considering the economic impacts of today's rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This rule will not impose any requirements on small entities. Rather, this rule interprets the obligations established in the CAA for States to submit implementation plans in order to attain the 8 hour ozone NAAQS. We are issuing this rule so that States and Tribes will know how we plan to classify areas and transition from implementation of the 1 hour NAAQS to implementation of the 8 hour NAAQS.

D. Unfunded Mandates Reform Act Title II of the Unfunded Mandates Reform Act of 1995 ( UMRA), Public Law 104 4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and Tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with " Federal mandates" that may result in expenditures to State, STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

251 local, and Tribal governments, in the aggregate, or to the private sector, of $ 100 million or more in any 1 year.

Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law.

Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments,

including Tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing,

educating, and advising small governments on compliance with STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

252 the regulatory requirements.

The EPA has determined that this rule does not contain a Federal mandate that may result in expenditures of $ 100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in any 1 year. The estimated administrative burden hour and costs associated with implementing the 8 hour, 0.08 ppm NAAQS were developed upon promulgation of the NAAQS and presented in Chapter 10 of U. S. EPA 1997, Regulatory Impact Analyses for the Particulate Matter and Ozone National Ambient Air Quality Standards, Innovative Strategies and Economics Group, Office of Air Quality Planning and Standards, Research Triangle Park, N. C., July 16, 1997. The estimated costs presented there for States in 1990 dollars totaled $ 0.9 million. The corresponding estimate in 1997 dollars is $ 1.1 million.

Should the more traditional classification option be adopted as the implementation framework, these costs may increase modestly, but would not reach $ 100 million. Thus, today's rule is not subject to the requirements of section 202 and 205 of the UMRA.

The CAA imposes the obligation for States to submit SIPs to implement the 8 hour ozone NAAQS; in this rule, EPA is merely fleshing out those requirements. However, even if STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

253 this rule did establish a requirement for States to submit SIPs, it is questionable whether a requirement to submit a SIP revision would constitute a Federal mandate in any case.

The obligation for a State to submit a SIP that arises out of section 110 and part D of the CAA is not legally enforceable by a court of law, and at most is a condition for continued receipt of highway funds. Therefore, it is possible to view an action requiring such a submittal as not creating any enforceable duty within the meaning of section 421( 5)( 9a)( I) of UMRA ( 2 U. S. C. 658( a)( I)). Even if it did,

the duty could be viewed as falling within the exception for a condition of Federal assistance under section 421( 5)( a)( i)( I) of UMRA ( 2 U. S. C. 658( 5)( a)( i)( I)).

In this rule, EPA has determined that this rule contains no regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments. Nonetheless, EPA carried out consultations with governmental entities affected by this rule.

E. Executive Order 13132: Federalism Executive Order 13132, entitled " Federalism" ( 64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure " meaningful and timely input by State and local officials in the development of STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

254 regulatory policies that have federalism implications."

" Policies that have federalism implications" is defined in the Executive Order to include regulations that have " substantial direct effects on the States, on the relationship between the national government and the States,

or on the distribution of power and responsibilities among the various levels of government."

This rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. As described in section D, above ( on UMRA), EPA previously determined the costs to States to implement the 8 hour ozone NAAQS to be approximately $ 1 million. While this rule considers options not addressed at the time the NAAQS were promulgated, the costs for implementation under these options would may rise modestly.

This rule fleshes out the statutory obligations of States in implementing the 8 hour ozone NAAQS. Finally, the CAA establishes the scheme whereby States take the lead in developing plans to meet the NAAQS. This rule would not modify the relationship of the States and EPA for purposes STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

255 of developing programs to implement the NAAQS. Thus,

Executive Order 13132 does not apply to this rule.

Although section 6 of Executive Order 13132 does not apply to this rule, EPA actively engaged the States in the development of this rule. EPA held regular calls with representatives of State and local air pollution control agencies. EPA also held three public meetings at which it described the approaches it was considering and provided an opportunity for States and various other governmental officials to comment on the options being considered.

Finally, EPA held three public hearings after the proposed rule was published to obtain public comments.

F. Executive Order 13175: Consultation and Coordination with Indian Tribal Governments Executive Order 13175, entitled " Consultation and Coordination with Indian Tribal Governments" ( 65 FR 67249,

November 9, 2000), requires EPA to develop an accountable process to ensure " meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications." This determination is stated below.

This rule concerns the implementation of the 8 hour ozone NAAQS in areas designated nonattainment for that STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

256 NAAQS. The CAA provides for States and Tribes to develop plans to regulate emissions of air pollutants within their jurisdictions. The regulations flesh out the statutory obligations of States and Tribes that develop plans to implement the 8 hour ozone NAAQS. The TAR gives Tribes the opportunity to develop and implement CAA programs such as the 8 hour ozone NAAQS, but it leaves to the discretion of the Tribe whether to develop these programs and which programs, or appropriate elements of a program, they will adopt.

This rule does not have Tribal implications as defined by Executive Order 13175. It does not have a substantial direct effect on one or more Indian Tribes, since no Tribe has implemented a CAA program to attain the 8 hour ozone NAAQS at this time. Furthermore, this rule does not affect the relationship or distribution of power and responsibilities between the Federal government and Indian Tribes. The CAA and the TAR establish the relationship of the Federal government and Tribes in developing plans to attain the NAAQS, and this rule does nothing to modify that relationship. Because this rule does not have Tribal implications, Executive Order 13175 does not apply.

The EPA also notes that even if Tribes choose to STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

257 develop plans to implement the 8 hour ozone NAAQS in the future, these regulations would not impose substantial direct compliance costs on such Tribes, nor would they preempt Tribal law. As provided above, EPA has determined that the total costs for implementing the 8 hour ozone NAAQS by State, local, and Tribal governments is approximately $ 1 million in all areas designated nonattainment for the NAAQS.

The percentage of Indian country that will be designated nonattainment for the 8 hour ozone NAAQS is very small. For Tribes that choose to regulate sources under their jurisdiction, the costs would be attributed to inspecting regulated facilities and enforcing adopted regulations.

Although Executive Order 13175 does not apply to this rule, EPA did consult with Tribal officials in developing this rule and encouraged Tribal input at an early stage.

The EPA supports a national " Tribal Designations and Implementation Work Group" which provided an open forum for all Tribes to voice concerns to EPA about the designation and implementation process for the 8 hour ozone NAAQS.

These discussions have given EPA valuable information about Tribal concerns regarding implementation of the 8 hour ozone NAAQS. The work group sent issue summaries and suggestions for addressing them to the newly formed National Tribal Air STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

258 Association ( NTAA), who in turn sent them to Tribal leaders.

EPA encouraged Tribes to participate in the national public meetings held to take comment on early approaches to the rule. Several Tribes made public comments at the April 2002 public meeting in Tempe, Arizona.

Furthermore, EPA sent individualized letters to all federally recognized Tribes about the proposal and gave Tribal leaders the opportunity for consultation. EPA received comment from the NTAA raising several questions:

( 1) NTAA asked for clarification on the nature of EPA's support for Tribes without Treatment in the same manner as a State ( TAS) status and asked if EPA would provide technical assistance in interpreting SIP documentation to a Tribe without TAS approval; ( 2) NTAA asked EPA to explain how it envisions its role in continuing consultation with Tribes throughout the execution of SIPs. These comments will be addressed in the technical support document. The NTAA's final comment cited concerns with the impact of NSR requirements on the Tribes. The EPA intends to address these NSR comments in the Tribal NSR Rule.

G. Executive Order 13045: Protection of Children from Environmental Health and Safety Risks Executive Order 13045: " Protection of Children From STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

259 Environmental Health and Safety Risks" ( 62 FR 19885, April 23, 1997) applies to any rule that ( 1) is determined to be " economically significant" as defined under Executive Order 12866, and ( 2) concerns an environmental health or safety risk that EPA has reason to believe may have disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children, and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.

The rule is not subject to Executive Order 13045 because it implements a previously promulgated health based Federal standard ( this rule implements the 8 hour ozone NAAQS). Nonetheless, we have evaluated the environmental health or safety effects of the 8 hour ozone NAAQS on children. The results of this evaluation are contained in 40 CFR part 50, National Ambient Air Quality Standards for Ozone, Final Rule ( 62 FR 38855 38896; specifically, 62 FR 38855, 62 FR 38860 and 62 FR 38865).

H. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use This rule is not a " significant energy action" as STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

260 defined in Executive Order 13211, " Actions That Significantly Affect Energy Supply, Distribution, or Use,"

( 66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

Information on the methodology and data regarding the assessment of potential energy impacts is found in Chapter 6 of U. S. EPA 2003, Cost, Emission Reduction, Energy, and Economic Impact Assessment of the Proposed Rule Establishing the Implementation Framework for the 8 Hour, 0.08 ppm Ozone National Ambient Air Quality Standard, prepared by the Innovative Strategies and Economics Group, Office of Air Quality Planning and Standards, Research Triangle Park, N. C.

April 24, 2003.

VIII. National Technology Transfer Advancement Act Section 12( d) of the National Technology Transfer Advancement Act of 1995 ( NTTAA), Public Law No. 104 113,

section 12( d) ( 15 U. S. C. 272 note) directs EPA to use voluntary consensus standards ( VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards ( e. g., materials specifications, test methods, sampling procedures, and STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE   4/ 14/ 04   4: 45 p. m.

261 business practices) that are developed or adopted by VCS bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable VCS.

This rulemaking does not involve technical standards.

Therefore, EPA is not considering the use of any VCS.

The EPA will encourage the States and Tribes to consider the use of such standards, where appropriate, in the development of the implementation plans.

J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority Populations and Low Income Populations Executive Order 12898 requires that each Federal agency make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionate high and adverse human health or environmental effects of its programs, policies, and activities on minorities and low income populations.

The EPA believes that this rule should not raise any environmental justice issues. The health and environmental risks associated with ozone were considered in the establishment of the 8 hour, 0.08 ppm ozone NAAQS. The level is designed to be protective with an adequate margin 262 of safety. The rule provides a framework for improving environmental quality and reducing health risks for areas that may be designated nonattainment.

K. Congressional Review Act The Congressional Review Act, 5 U. S. C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this rule and other required information to the U. S. Senate, the U. S.

House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A Major rule cannot take effect until 60 Rule to Implement the 8 Hour Ozone Standard Page ___ of ___

263 days after it is published in the Federal Register. This action is not a " major rule" as defined by 5 U. S. C. 804( 2).

This rule will be effective June 1, 2004.

LIST OF SUBJECTS in 40 CFR Part 51 Air pollution control, Intergovernmental relations, Ozone,

Particulate matter, Transportation, Volatile organic compounds.

AUTHORITY 42 U. S. C. 7408; 42 U. S. C. 7410; 42 U. S. C. 7501 7511f; 42 U. S. C. 7601( a)( 1).

________________________________

Dated:

________________________________

Administrator. STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 264 APPENDIX A EXAMPLE FOR 8 HR O3 PREAMBLE PORTION DEALING WITH ANTIBACKSLIDING AND OUTSTANDING 1 HR ROP OBLIGATION.

Consider a 1 hour nonattainment area classified as Severe 15. For simplicity, only one precursor is assumed here, and this example does not account for issues of creditability established by the CAA. The 1 hour Severe 15 areas are required to reach attainment no later than 15 years after the 1990 base year, i. e., in year 2005. The ROP requirement over this 15 year period would be accomplished by an initial 15 percent reduction in emissions in the first six years, followed by additional 3 percent per year reductions ( 9 percent averaged over three years) until attainment is reached but no later than the attainment date ( with any additional reductions needed for attainment).

Suppose an area started with a base year emissions inventory of 1000 tons/ day ( t/ d); after an initial 15 percent reduction, the area's emissions in 1996 would be 850 t/ d.

Subsequent additive linear 9 percent reductions would net 24 percent, 33 percent, and 42 percent reductions, leaving emissions of 760 t/ d in 1999, 670 t/ d in 2002, and 580 t/ d in 2005. ( Since each subsequent 9 year incremental reduction toward attainment would have to account for STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 265 adjustments in the base year inventory because of noncreditable reductions, actual reductions would vary somewhat from those shown here.)

Assume that the same area is classified Serious for the 8 hour NAAQS. Under one of our proposed options for such an area, the area would be required to submit an RFP plan in 2006 that shows ( for the 6 year period from the end of 2002 to the end of 2008) an 18 percent reduction from a 2002 base year. The 1 hour NAAQS ROP schedule thus overlaps the 8

hour one, which begins in base year 2002 and continues to year 2013. As the same 1 hour Severe 15 area transitions to an 8 hour serious nonattainment area, overlap occurs during years 2002 through 2005. During this interval, the area will complete its last 9 percent incremental reduction in year 2005 for its 1 hour obligation while at the same time beginning to meet the 8 hour obligation of 18 percent by 2008. Therefore, between 2002  2005, the area will need to get ( 670 t/ d  580 t/ d =) 90 t/ d reductions to meet its 1

hour obligation. The area would also be required to get between 2002  2008 an 18 percent reduction from the 2002 base inventory of 670 t/ d which equals a 121 t/ d in reductions. However, since the 90 t/ d is already obtained for the 2002  2005 period, the area need only get an additional ( 121 t/ d  90 t/ d =) 31 t/ d reductions to meet STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 266 the 8 hour obligation from 2005 out to 2008. Therefore, if this area had not actually submitted a 1 hour ROP plan that covered the 2002 2005 period, and it submitted its 8 hour RFP plan that achieves the 121 t/ d reduction, it would be deemed to have met its 1 hour ROP obligation, provided that the RFP plan insured that 90 t/ d would be achieved by 2005. STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 267 APPENDIX B GLOSSARY OF TERMS AND ACRONYMS bump up Reclassify to higher classification CAA Clean Air Act CAAA 1990 Clean Air Act Amendments CFR Code of Federal Regulations CMSA Consolidated Metropolitan Statistical Area EAC Early Action Compacts EPA Environmental Protection Agency I/ M Inspection and Maintenance Area LAER Lowest achievable emission rate LNB Low NOx Burner MCR Mid course review MPO Metropolitan Planning Organization NAAQS National Ambient Air Quality Standards NOx Nitrogen oxides NSR New source review NTAA National Tribal Air Association NTTAA National Technology Transfer Advancement Act of 1995 OMB Office of Management and Budget OTR Ozone Transport Region PAMS Photochemical Assessment Monitoring Stations STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 268 ppm Parts per million PSD Prevention of significant deterioration RACM Reasonably available control measures RACT Reasonably available control technology RFG Reformulated gasoline RFP Reasonable further progress ROP Rate of progress SBA Small Business Administration SCR Selective Catalytic Reduction SIPs State implementation plans TAR Tribal Authority Rule TAS Treatment in the same manner as a State t/ d Tons per day TEA 21 Transportation Equity Act for the Twenty first Century UMRA Unfunded Mandates Reform Act of 1995 VCS Voluntary consensus standards VOC Volatile organic compound STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 269 For the reasons stated in the preamble, the Environmental Protection Agency revises 40 CFR Part 50, and amends 40 CFR Parts 51 and 81 as follows:

40 CFR Part 50   National Primary and Secondary Ambient Air Quality Standards The second sentence of 40 CFR 50.9( b) is amended to read as follows:

Sec. 50.9 National 1 hour primary and secondary ambient air quality standards for ozone.

* * * * *

( b) . . . The 1 hour NAAQS set forth in section 50.9( a) will no longer apply to an area one year after the effective date of the designation of that area for the 8 hour ozone NAAQS pursuant to section 107 of the Clean Air Act.

40 CFR Part 51   Requirements for Preparation, Adoption, and Submittal of Implementation Plans 40 CFR 51 is amended by adding a new subpart X to read as follows:

Subpart X   Provisions for Implementation of 8 hour Ozone STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 270 National Ambient Air Quality Standard.

Sec. 51.900 Definitions.

Sec. 51.901 Applicability of Part 51.

Sec. 51.902 Which classification and area planning provisions of the CAA shall apply to areas designated nonattainment for the 8 hour NAAQS?

Sec. 51.903 How do the classification and attainment date provisions in section 181 of subpart 2 of the CAA apply to areas subject to section 51.902( a)?

Sec. 51.904 How do the classification and attainment date provisions in section 172( a) of subpart 1 of the CAA apply to areas subject to section 51.902( b)?

Sec. 51.905 How do areas transition from the 1 hour NAAQS to the 8 hour NAAQS and what are the anti backsliding provisions?

Sec. 51.906 [ Reserved]

Sec. 51.907 For an area that fails to attain the 8 hour NAAQS by its attainment date, how does EPA interpret sections 172( a)( 2)( C)( ii) and 181( a)( 5)( B) of the CAA?

Sec. 51.908 What is the required timeframe for obtaining emission reductions to ensure attainment by the attainment date?

Sec. 51.909 [ Reserved]

Sec. 51.910 [ Reserved] STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 271 Sec. 51.911 [ Reserved]

Sec. 51.912 [ Reserved]

Sec. 51.913 [ Reserved]

Sec. 51.914 [ Reserved]

Sec. 51.915 [ Reserved]

Sec. 51.916 [ Reserved]

Sec. 51.900 Definitions.

The following definitions apply for purposes of this subpart. Any term not defined herein shall have the meaning as defined in 40 CFR 51.100.

( a) 1 hour NAAQS means the 1 hour ozone national ambient air quality standards codified at 40 CFR 50.9.

( b) 8 hour NAAQS means the 8 hour ozone national ambient air quality standards codified at 40 CFR 50.10.

( c) 1 hour ozone design value is the 1 hour ozone concentration calculated according to 40 CFR part 50,

Appendix H and the interpretation methodology issued by the Administrator most recently before the date of the enactment of the CAA AMENDMENTS of 1990.

( d) 8 Hour ozone design value is the 8 hour ozone concentration calculated according to 40 CFR part 50,

Appendix I.

( e) CAA means the CAA as codified at 42 U. S. C. sections 7401  7671q ( 2003). STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 272 ( f) Applicable requirements means for an area the following requirements to the extent such requirements apply or applied to the area for the area's classification under section 181( a)( 1) of the CAA for the 1 hour NAAQS at the time the Administrator signs a final rule designating the area for the 8 hour standard as nonattainment, attainment or unclassifiable:

( 1) Reasonably available control technology ( RACT).

( 2) Inspection and maintenance programs ( I/ M).

( 3) Major source applicability cut offs for purposes of RACT.

( 4) Rate of Progress ( ROP) reductions.

( 5) Stage II vapor recovery.

( 6) Clean fuels fleet program under section 183( c)( 4) of the CAA.

( 7) Clean fuels for boilers under section 182( e)( 3) of the CAA.

( 8) Transportation Control Measures ( TCMs) during heavy traffic hours as provided under section 182( e)( 4) of the CAA.

( 9) Enhanced ( ambient) monitoring under section 182( c)( 1) of the CAA.

( 10) Transportation controls under section 182( c)( 5) of the CAA. STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 273 ( 11) Vehicle miles traveled provisions of section 182( d)( 1)

of the CAA.

( 12) NOx requirements under section 182( f) of the CAA.

( g) Attainment year ozone season shall mean the ozone season immediately preceding a nonattainment area's attainment date.

( h) Designation for the 8 hour NAAQS shall mean the effective date of the 8 hour designation for an area.

( i) Higher classification/ lower classification. For purposes of determining whether a classification is higher or lower, classifications are ranked from lowest to highest as follows: classification under subpart 1 of the CAA;

marginal; moderate; serious; severe 15; severe 17; and extreme.

( j) Initially designated means the first designation that becomes effective for an area for the 8 hour NAAQS and does not include a redesignation to attainment or nonattainment for that standard.

( k) Maintenance area for the 1 hour NAAQS means an area that was designated nonattainment for the 1 hour NAAQS on or after November 15, 1990 and was redesignated to attainment for the 1 hour NAAQS subject to a maintenance plan as required by section 175A of the CAA.

( l) Nitrogen Oxides ( NOx) means the sum of nitric oxide and STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 274 nitrogen dioxide in the flue gas or emission point,

collectively expressed as nitrogen dioxide.

( m) NOx SIP Call means the rules codified at 40 CFR 51.121 and 51.122.

( n) Ozone season means for each State, the ozone monitoring season as defined in 40 CFR Part 58, Appendix D, section 2.5 for that State.

( o) Ozone transport region means the area established by section 184( a) of the CAA or any other area established by the Administrator pursuant to section 176A of the CAA for purposes of ozone.

( p) Reasonable further progress ( RFP) means for the purposes of the 8 hour NAAQS, the progress reductions required under section 172( c)( 2) and section 182( b)( 1) and ( c)( 2)( B) and ( c)( 2)( C) of the CAA.

( q) Rate of progress ( ROP) means for purposes of the 1 hour NAAQS, the progress reductions required under section 172( c)( 2) and section 182( b)( 1) and ( c)( 2)( B) and ( c)( 2)( C)

of the CAA.

( r) Revocation of the 1 hour NAAQS means the time at which the 1 hour NAAQS no longer apply to an area pursuant to 40 CFR 50.9( b).

( s) Subpart 1 means subpart 1 of part D of title I of the CAA. STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 275 ( t) Subpart 2 means subpart 2 of part D of title I of the CAA.

( u) Attainment Area means, unless otherwise indicated, an area designated as either attainment, unclassifiable, or attainment/ unclassifiable.

Sec. 51.901 Applicability of Part 51. The provisions in subpart( s) A W of part 51 apply to areas for purposes of the 8 hour NAAQS to the extent they are not inconsistent with the provisions of this subpart.

Sec. 51.902 Which classification and nonattainment area planning provisions of the CAA shall apply to areas designated nonattainment for the 8 hour NAAQS?

( a) Classification under subpart 2. An area designated nonattainment for the 8 hour NAAQS with a 1 hour ozone design value equal to or greater than 0.121 ppm at the time the Administrator signs a final rule designating or redesignating the area as nonattainment for the 8 hour NAAQS will be classified in accordance with section 181 of the CAA, as interpreted in section 51.903( a) of this part, for purposes of the 8 hour NAAQS, and will be subject to the requirements of subpart 2 that apply for that classification.

( b) Covered under subpart 1. An area designated STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 276 nonattainment for the 8 hour ozone NAAQS with a 1 hour design value less than 0.121 ppm at the time the Administrator signs a final rule designating or redesignating the area as nonattainment for the 8 hour NAAQS will be covered under section 172( a)( 1) of the CAA and will be subject to the requirements of subpart 1.

Sec. 51.903 How do the classification and attainment date provisions in section 181 of subpart 2 of the CAA apply to areas subject to section 51.902( a)?

( a) In accordance with section 181( a)( 1) of the CAA, each area subject to section 51.902( a) shall be classified by operation of law at the time of designation. However, the classification shall be based on the 8 hour design value for the area, in accordance with Table 1 below, or such higher or lower classification as the State may request as provided in paragraphs ( b) and ( c) below. The 8 hour design value for the area shall be calculated using the three most recent years of air quality data. For each area classified under this section, the primary NAAQS attainment date for the 8

hour NAAQS shall be as expeditious as practicable but not later than the date provided in Table 1, below. STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 277 TABLE 1 CLASSIFICATION FOR 8 HOUR OZONE NAAQS FOR AREAS SUBJECT TO SECTION 51.902( a) Area class 8 hour design value ( ppm ozone) Maximum Period for Attainment Dates in State Plans ( years after effective date of nonattainment designation for 8 hour NAAQS) Marginal from 0.085 3 up to* 0.092 Moderate from 0.092 6 up to* 0.107 Serious from 0.107 9 up to* 0.120 Severe 15 from 0.120 15 up to* 0.127 Severe 17 from 0.127 17 up to* 0.187 Extreme equal to or above 0.187 20 * but not including ( b) A State may request a higher classification for any reason in accordance with section 181( b)( 3) of the CAA.

( C) A State may request a lower classification in accordance with section 181( a)( 4) of the CAA.

Sec. 51.904 How do the classification and attainment date provisions in section 172( a) of subpart 1 of the CAA apply to areas subject to section 51.902( b)? STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 278 ( a) Classification. The Administrator may classify an area subject to section 51.902( b) as an overwhelming transport area if:

( 1) the area meets the criteria as specified for rural transport areas under section 182( h) of the CAA;

( 2) transport of ozone and/ or precursors into the area is so overwhelming that the contribution of local emissions to observed 8 hour ozone concentration above the level of the NAAQS is relatively minor; and ( 3) The Administrator finds that sources of VOC ( and, where the Administrator determines relevant, NOx) emissions within the area do not make a significant contribution to the ozone concentrations measured in other areas.

( b) Attainment Dates. For an area subject to section 51.902( b), the Administrator will approve an attainment date consistent with the attainment date timing provision of section 172( a)( 2)( A) at the time the Administrator approves an attainment demonstration for the area.

Sec. 51.905 Transition from the 1 hour NAAQS to the 8 hour NAAQS and anti backsliding.

( a) What requirements that applied in an area for the 1

hour NAAQS continue to apply after revocation of the 1 hour NAAQS for that area?

( 1) 8 Hour NAAQS Nonattainment/ 1 Hour NAAQS Nonattainment STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 279 The following requirements apply to an area designated nonattainment for the 8 hour NAAQS and designated nonattainment for the 1 hour NAAQS at the time of designation for the 8 hour NAAQS for that area.

( i) The area remains subject to the obligation to adopt and implement the applicable requirements as defined in section 51.900( f), except as provided in paragraph ( a)( 1)( iii) of this section, and except as provided in paragraph ( b) of this section.

( ii) If the area has not met its obligation to have a fullyapproved attainment demonstration SIP for the 1 hour NAAQS,

the State must comply with one of the following:

( A) Submit a 1 hour attainment demonstration no later than 1 year after designation;

( B) Submit a RFP plan for the 8 hour NAAQS no later than 1 year following designations for the 8 hour NAAQS providing a 5 percent increment of emissions reduction from the area's 2002 emissions baseline, which must be in addition to measures ( or enforceable commitments to measures) in the SIP at the time of the effective date of designation and in addition to national or regional measures and must be achieved no later than 2 years after the required date for submission ( 3 years after designation). STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 280 ( C) Submit an 8 hour ozone attainment demonstration no later than 1 year following designations that demonstrates attainment of the 8 hour NAAQS by the area's attainment date; provides for 8 hour RFP for the area out to the attainment date; and for the initial period of RFP for the area ( between 2003 2008), achieve the emission reductions by December 31, 2007.

( iii) If the area has an outstanding obligation for an approved 1 hour ROP SIP, it must develop and submit to EPA all outstanding 1 hour ROP plans; where a 1 hour obligation overlaps with an 8 hour RFP requirement, the State's 8 hour RFP plan can be used to satisfy the 1 hour ROP obligation if the 8 hour RFP plan has an emission target at least as stringent as the 1 hour ROP emission target in each of the 1 hour ROP target years for which the 1 hour ROP obligation exists.

( 2) 8 Hour NAAQS Nonattainment/ 1 Hour NAAQS Maintenance An area designated nonattainment for the 8 hour NAAQS that is a maintenance area for the 1 hour NAAQS at the time of designation for the 8 hour NAAQS for that area remains subject to the obligation to implement the applicable requirements as defined in section 51.900 ( f) to the extent such obligations are required by the approved SIP, except as provided in paragraph ( b) of this section. Applicable STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 281 measures in the SIP must continue to be implemented;

however, if these measures were shifted to contingency measures prior to designation for the 8 hour NAAQS for the area, they may remain as contingency measures, unless the measures are required to be implemented by the CAA by virtue of the area's requirements under the 8 hour NAAQS. The State may not remove such measures from the SIP.

( 3) 8 Hour NAAQS Attainment/ 1 Hour NAAQS Nonattainment ( i) Obligations in an approved SIP. For an area that is 8

hour NAAQS attainment/ 1 hour NAAQS nonattainment, the State may request that obligations under the applicable requirements of section 51.900( f) be shifted to contingency measures, consistent with sections 110( l) and 193 of the CAA, after revocation of the 1 hour NAAQS; however, the State cannot remove the obligations from the SIP. For such areas, the State may request that the nonattainment NSR provisions be removed from the SIP on or after the date of revocation of the 1 hour NAAQS and need not be shifted to contingency measures, provided that a program for the prevention of significant deterioration pursuant to section 51.166 or 52.21 covering the 8 hour NAAQS is in effect.

subject to paragraph ( e)( 4) of this section.

( ii) Attainment demonstration and ROP plans.

( A) To the extent an 8 hour NAAQS attainment/ 1 hour NAAQS STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 282 nonattainment area does not have an approved attainment demonstration or ROP plan that was required for the 1 hour NAAQS under the CAA, the obligation to submit such an attainment demonstration or ROP plan ( 1) is deferred for so long as the area continues to maintain the 8 hour NAAQS; and ( 2) no longer applies once the area has an approved maintenance plan pursuant to paragraph ( a)( 3)( iii) of this section.

( B) For an 8 hour NAAQS attainment/ 1 hour NAAQS nonattainment area that violates the 8 hour NAAQS, prior to having an approved maintenance plan for the 8 hour NAAQS as provided under paragraph ( a)( 3)( iii) of this section,

subparagraphs ( a)( 3)( ii)( 1), ( 2), and ( 3) of this section shall apply.

( 1) In lieu of any outstanding obligation to submit an attainment demonstration, within 1 year after the date on which EPA publishes a determination that a violation of the 8 hour NAAQS has occurred, the State must submit ( or revise a submitted) maintenance plan for the 8 hour NAAQS, as provided under paragraph ( a)( 3)( iii) of this section, to

( A) address the violation by relying on modeling that meets EPA guidance for purposes of demonstrating maintenance of the NAAQS; or STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 283 ( B) submit a SIP providing for a 3 percent increment of emissions reductions from the area's 2002 emissions baseline; these reductions must be in addition to measures ( or enforceable commitments to measures) in the SIP at the time of the effective date of designation and in addition to national or regional measures.

( 2) The plan required under paragraph ( a)( 3)( ii)( B)( 1) of this section must provide for the emission reductions required within 3 years after the date on which EPA publishes a determination that a violation of the 8 hour NAAQS has occurred.

( 3) The State shall submit an ROP plan to achieve any outstanding ROP reductions that were required for the area for the 1 hour NAAQS, and the 3 year period or periods for achieving the ROP reductions will begin January 1 of the year following the 3 year period on which EPA bases its determination that a violation of the 8 hour NAAQS occurred.

( iii) Maintenance Plans for the 8 hour NAAQS. For areas initially designated attainment for the 8 hour NAAQS, and designated nonattainment for the 1 hour NAAQS at the time of designation for the 8 hour NAAQS, the State shall submit no later than 3 years after the area's designation for the 8

hour NAAQS, a maintenance plan for the 8 hour NAAQS in accordance with section 110( a)( 1) of the CAA. The STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 284 maintenance plan must provide for continued maintenance of the 8 hour NAAQS for 10 years following designation and must include contingency measures. This provision does not apply to areas redesignated from nonattainment to attainment for the 8 hour NAAQS pursuant to CAA section 107( d)( 3); such areas are subject to the maintenance plan requirement in section 175A of the CAA.

( 4) 8 Hour NAAQS Attainment/ 1 Hour NAAQS Maintenance ( i) Obligations in an approved SIP. For an 8 hour NAAQS attainment/ 1 hour NAAQS maintenance area, the State may request that obligations under the applicable requirements of section 51.900( f) be shifted to contingency measures,

consistent with sections 110( l) and 193 of the CAA, after revocation of the 1 hour NAAQS; however, the State cannot remove the obligations from the SIP.

( ii) Maintenance Plans for the 8 hour NAAQS. For areas initially designated attainment for the 8 hour NAAQS and subject to the maintenance plan for the 1 hour NAAQS at the time of designation for the 8 hour NAAQS, the State shall submit no later than 3 years after the area's designation for the 8 hour NAAQS, a maintenance plan for the 8 hour NAAQS in accordance with section 110( a)( 1) of the CAA. The maintenance plan must provide for continued maintenance of the 8 hour NAAQS for 10 years following designation and must STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 285 include contingency measures. This provision does not apply to areas redesignated from nonattainment to attainment for the 8 hour NAAQS pursuant to section 107( d)( 3); such areas are subject to the maintenance plan requirement in section 175A of the CAA.

( b) Does attainment of the ozone NAAQS affect the obligations under paragraph ( a) of this section? A State remains subject to the obligations under paragraphs ( a)( 1)( i) and ( a)( 2) of this section until the area attains the 8 hour NAAQS. After the area attains the 8 hour NAAQS,

the State may request such obligations be shifted to contingency measures, consistent with sections 110( l) and 193 of the CAA; however, the State cannot remove the obligations from the SIP.

( c) Which portions of an area designated for the 8 hour NAAQS remain subject to the obligations identified in paragraph ( a) of this section?

( 1) Except as provided in paragraph ( c)( 2) of this section,

only the portion of the designated area for the 8 hour NAAQS that was required to adopt the applicable requirements in 51.900( f) for purposes of the 1 hour NAAQS is subject to the obligations identified in paragraph ( a) of this section,

including the requirement to submit a maintenance plan for purposes of paragraph ( a)( 3)( iii) of this section. 40 CFR STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 286 Part 81, Subpart E identifies the boundaries of areas and the area designations and classifications for the 1 hour NAAQS at the time the 1 hour NAAQS no longer applied to each area.

( 2) For purposes of paragraph ( a)( 1)( ii)( B) and ( C) of this section, the requirement to achieve emission reductions applies to the entire area designated nonattainment for the 8 hour ozone NAAQS.

( d) Reserved ( e) What obligations that applied for the 1 hour NAAQS will no longer apply after revocation of the 1 hour NAAQS for an area?

( 1) Maintenance Plans. Upon revocation of the 1 hour NAAQS,

an area with an approved 1 hour maintenance plan under section 175A of the CAA may modify the maintenance plan: ( a)

to remove the obligation to submit a maintenance plan for the 1 hour NAAQS 8 years after approval of the initial 1 hour maintenance plan; and ( b) to remove the obligation to implement contingency measures upon a violation of the 1 hour NAAQS. However, such requirements will remain enforceable as part of the approved SIP until such time as EPA approves a SIP revision removing such obligations. The EPA shall not approve a SIP revision requesting these modifications until the State submits and EPA approves an STAFF DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 287 attainment demonstration for the 8 hour NAAQS for an area initially designated nonattainment for the 8 hour ozone NAAQS or a maintenance SIP for the 8 hour NAAQS for an area initially designated attainment for the 8 hour NAAQS. Any revision to such SIP must meet the requirements of section 110( l) and 193 of the CAA.

( 2) Findings of failure to attain the 1 hour NAAQS. Upon revocation of the 1 hour NAAQS for an area, EPA is no longer obligated   ( i) to determine pursuant to section 181( b)( 2) or section 179( c) of the CAA whether an area attained the 1 hour NAAQS by that area's attainment date for the 1 hour NAAQS; or ( ii) to reclassify an area to a higher classification for the 1 hour NAAQS based upon a determination that the area failed to attain the 1 hour NAAQS by the area's attainment date for the 1 hour NAAQS.