Regarding the portion of this rulemaking on RFG: In PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE draft 11/ 03/ 05 119Final Regulatory Impact Analysis for Reformulated Gasoline. Office of Mobile Sources. U. S. Environmental Protection Agency. EPA420 R 93 017. December 1993.

474 promulgating the RFG and related anti dumping regulations,

the Agency analyzed the impact of the regulations on small businesses. The Agency concluded that the regulations could have some economic effect on a substantial number of small refiners, but that the regulations would not significantly affect other small entities, such as gasoline blenders,

terminal operators, service stations and ethanol blenders.

( See 59 FR 7810 7811; February 16, 1994). A complete analysis of the effect of the RFG/ anti dumping regulations on small businesses is contained in the Regulatory Flexibility Analysis which was prepared for the RFG and anti dumping rulemaking, and can be found in the docket for this rulemaking. 119 The RFG portions of this rule will not have a significant economic impact on a substantial number of small entities for the following reasons. First, there is no impact associated with opt in areas, as EPA is merely retaining its existing opt in rules. Second, EPA estimates that no more than three small refiners could potentially be impacted by these regulations, since no more than that PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE draft 11/ 03/ 05 475 number produce gasoline for sale in RFG covered areas. This is not a substantial number of small entities. In estimating this number, EPA used the Small Business Administration's definition of small refiner as one that employs fewer than 1,500 individuals. As noted above, EPA has determined that there will be no significant economic impacts from RFG requirements for terminals, retailers,

distributors and other entities involved in the sale and distribution of gasoline. Third, as to the mandatory areas covered by this rule, the rule merely keeps in place the pre existing requirement that RFG be used until the areas are redesignated to attainment for the ozone standard, and clarifies that a change in ozone standard does not modify this requirement. Therefore, any impact of the RFG program on small entities relates to the earlier EPA rulemaking establishing the RFG program, and not to this rule.

Although EPA does not believe that a regulatory flexibility analysis is needed for the RFG portions of this rulemaking,

EPA nevertheless incorporates by reference the analysis it conducted in the RIA for the 1994 RFG rules.

For the reasons provided above, EPA concludes that this rulemaking will not have a significant economic impact on a substantial number of small entities. PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE draft 11/ 03/ 05 476 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,

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 PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE draft 11/ 03/ 05 477 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 the regulatory requirements.

The RFG related portions of this rule contain no new Federal mandates ( under the regulatory provisions of title II of the UMRA) for State, local or Tribal governments or the private sector. The rule imposes no new enforceable duty, since it merely clarifies that in the transition to the 8 hour ozone standard the pre existing opt in rules remain in place, as does the pre existing requirement that RFG be used in mandatory RFG covered areas within the scope of this rule until such areas are redesignated to attainment for the ozone standard. Although EPA does not believe that UMRA imposes requirements regarding the RFG related portions of this rulemaking, EPA notes that the environmental and economic impacts of the RFG program were assessed in EPA's PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE draft 11/ 03/ 05 478 RIA for the 1994 RFG rules.

The EPA has determined that all other portions of this rule do 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. Thus, today's rule is not subject to the requirements of sections 202 and 205 of the UMRA. At the time EPA proposed its Implementation Rule, EPA noted that if it chose a classification option that classified all areas under subpart 2 of part D, these costs may increase modestly, but would not reach $ 100 million. However, in promulgating the Phase 1 Rule, EPA adopted a classification scheme that resulted in approximately half of the areas PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE draft 11/ 03/ 05 479 designated nonattainment being subject only to the subpart 1 requirements.

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 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)]. As noted below under " L. Petitions for Judicial Review," this rule is covered under section 307( d) of the CAA.

The EPA has determined that this rule contains no regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments. PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE draft 11/ 03/ 05 480 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 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. The RFG related portions of the rule impose requirements on certain refiners and other entities in the gasoline distribution system, and not on States. In addition, as described in section D, above ( on UMRA), EPA PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE draft 11/ 03/ 05 481 previously determined the costs to States to implement the 8 hour ozone NAAQS to be approximately $ 1 million. 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 of developing programs to implement the NAAQS. In the non

RFG portions of this rule, EPA is interpreting the statutory SIP submission requirements that apply to areas designated.

As described above, EPA has generally adopted the more flexible options proposed in the June 2003 proposal. 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. The EPA held regular calls with representatives of State and local air pollution control agencies. Also, EPA 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 PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE draft 11/ 03/ 05 482 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."

The portions of this rulemaking that relate to RFG do not create a mandate for any Tribal government. The rule does not impose any enforceable duties on these entities.

Rather, the rule will affect only those refiners, importers or blenders of gasoline that choose to produce or import RFG for sale in the nonattainment areas addressed in the rule,

and the gasoline distributors and retail stations in those areas. The following discussion relates to the non RFG portions of the rule.

This rule concerns the implementation of the 8 hour ozone NAAQS in areas designated nonattainment for that NAAQS. The CAA provides for States and Tribes to develop plans to regulate emissions of air pollutants within their jurisdictions. The non RFG portions of this rule flesh out the statutory obligations of States and Tribes that develop plans to implement the 8 hour ozone NAAQS. The TAR and the CAA give Tribes the opportunity to develop and implement CAA PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE draft 11/ 03/ 05 483 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. There are 126 designated nonattainment areas. Although there are 61 Tribes estimated to be in one or more of those nonattainment areas, this rule does not have a substantial direct effect on one or more Indian Tribes, since no Tribe is required to implement a CAA program to attain the 8 hour ozone NAAQS. See:

http:// www. epa. gov/ oar/ oaqps/ glo/ designations/ tribaldesig. ht m for the list of Tribes included as part of a designated nonattainment area. 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.

Although Executive Order 13175 does not apply to this rule, EPA did consult with Tribal leaders and environmental PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE draft 11/ 03/ 05 484 staff in developing this rule and encouraged Tribal input at an early stage. The EPA supports the 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 Association ( NTAA), which in turn sent them to Tribal leaders. The project lead for this rule informed interested Tribal leaders about progress on the rule and invited input. The 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 inviting Tribal leaders to consult with EPA on the proposed implementation rule. The EPA received comment from the NTAA on several questions: ( 1)

the NTAA asked for clarification on the nature of EPA's support for Tribes without TAS status and asked if EPA would PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE draft 11/ 03/ 05 485 provide technical assistance in interpreting SIP documentation to a Tribe without TAS approval; ( 2) the NTAA asked EPA to explain how it envisions its role in continuing consultation with Tribes throughout the execution of SIPs.

We respond to these comments in the technical support document. The NTAA's final comment cited concerns with the impact of NSR requirements on the Tribes. The EPA acknowledges that offsets are a concern for Tribes. We are currently evaluating potential options for addressing this concern.

G. Executive Order 13045: Protection of Children from Environmental Health and Safety Risks Executive Order 13045: " Protection of Children From 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 a 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 PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE draft 11/ 03/ 05 486 feasible alternatives considered by the Agency.

This rule is not subject to Executive Order 13045 because it implements a previously promulgated health based Federal standard   the 8 hour ozone NAAQS   and contains a non health based determination of the extent to which the existing RFG program remains in place under the 8 hour standard. We have evaluated the environmental health and safety effects of the 8 hour ozone NAAQS on children as part of this previously promulgated Federal standard. 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, July 18, 1997; 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 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.

At the time of proposal, information on the methodology and data regarding the assessment of potential energy PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE draft 11/ 03/ 05 487 impacts regarding implementation of the 8 hour standard was addressed 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, NC, April 24, 2003.

Subsequently, EPA issued an Addendum 1 to that analysis for the Phase 1 final rule and designated nonattainment areas.

For purposes of this final rule, EPA has issued Addendum 2.

By adopting the more flexible approaches while providing for attainment and maintenance of the 8 hour NAAQS as required by the CAA, additional energy cost associated with more extensive use of less flexible approaches would be averted.

The portions of this rule that relate to RFG merely clarify that the existing program continues under the 8 hour standard in the areas addressed by the rule, so the rule does not have a significant affect on energy supply,

distribution or use. The EPA evaluated energy impacts of the RFG program in the RIA for the 1994 rulemaking establishing the RFG program.

I. National Technology Transfer Advancement Act PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE draft 11/ 03/ 05 488 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 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, PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE draft 11/ 03/ 05 489 disproportionately 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 does not raise any environmental justice concerns. Today's rule helps establish a framework for bringing all areas of the country into attainment with the 8 hour ozone standards, an important environmental justice goal. The health and environmental risks associated with ozone were considered in the establishment of the 8 hour, 0.08 ppm ozone NAAQS, and the standard was set at a level requisite to protect public health with an adequate margin of safety. In setting this standard, EPA considered the effects on sensitive subpopulations, such as those with respiratory problems.

The EPA has designated as nonattainment these areas of the country that are not meeting the 8 hour ozone standard.

This rule will assist States as they develop plans to bring these nonattainment areas into attainment in accordance with the CAA schedule. By establishing guidelines for bringing these areas into attainment with the 8 hour ozone standard,

the Phase 2 Rule advances an important environmental justice goal and will help make significant progress in providing for the fair treatment of all people with respect to air PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE draft 11/ 03/ 05 490 pollution.

In the preamble to the proposed rule, EPA took comment on the Clean Air Development Communities ( CADC) concept ( regarding possible State adoption of land use planning as a pollution reduction strategy) and noted that it might raise environmental justice concerns. Public comments were submitted that raised environmental justice concerns with this concept. As noted earlier in the preamble to this Phase 2 Rule, EPA is not finalizing the CADC concept and has therefore not responded to these ( or any other) comments on the CADC concept.

The RFG program is designed to reduce vehicle emissions of toxic and ozone forming substances. This rule will not alter the air quality benefits associated with the RFG program.

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 PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE draft 11/ 03/ 05 491 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 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 [ INSERT DATE 60 DAYS AFTER PUBLICATION].

L. Petitions for Judicial Review Under section 307( b)( 1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the District of Columbia Circuit by [ insert date 60 days after publication]. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed,

and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See CAA section 307( b)( 2).

M. Determination Under Section 307( d)

Pursuant to sections 307( d)( 1)( E) and 307( d)( 1)( V) of PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE draft 11/ 03/ 05 492 the CAA, the Administrator determines that this action is subject to the provisions of section 307( d). Section 307( d)( 1)( V) provides that the provisions of section 307( d)

apply to " such other actions as the Administrator may determine." While the Administrator did not make this determination earlier, the Administrator believes that all of the procedural requirements, e. g., docketing, hearing and comment periods, of section 307( d) have been complied with during the course of this rulemaking. Rule to Implement the 8 Hour Ozone Standard Page ___ of ___

493 LIST OF SUBJECTS in 40 CFR Part 50 Environmental protection, Air pollution control, Carbon monoxide, Lead, Nitrogen dioxide, Ozone, Particulate matter,

Sulfur oxides.

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

Particulate matter, Transportation, Volatile organic compounds.

LIST OF SUBJECTS in 40 CFR Part 81 Environmental protection, Air pollution control, National parks, Wilderness areas.

AUTHORITY 42 U. S. C. 7408; 42 U. S. C. 7410; 42 U. S. C. 7501 7511f; 42 U. S. C. 7601( a)( 1); 42 U. S. C. 7401.

________________________________

Dated:

________________________________

Stephen L. Johnson, Administrator PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 120These methods assume the use of EPA's on road motor vehicle emissions model in all States other than California. All of the methods given here require the user to turn off all post 1990 CAA measures as part of the calculation. In EPA's current motor vehicle emissions model, MOBILE6.2, this is accomplished using the NO CLEAN AIR ACT command as described in the MOBILE6.2 User's Guide ( found at http:// www. epa. gov/ otaq/ m6. htm). Users of future versions of EPA's motor vehicle emissions model should consult the appropriate User's Guide for the version of the model they are using for instructions on what model command to use. For California nonattainment areas, the current motor vehicle emissions model is EMFAC2002. Users modeling California nonattainment areas should consult with the EPA Regional Office for information on doing equivalent calculations in that model and in future versions.

494 APPENDIX A TO PREAMBLE Methods to Account for Non Creditable Reductions when Calculating ROP Targets for the 2008 and Later ROP Milestone Years The following methods properly account for the noncreditable emissions reductions when calculating ROP targets for the 2008 and later ROP milestone years. 120 They are consistent with requirements of sections 182( b)( 1)( C) and ( D) and 182( c)( 2)( B) of the CAA.

( 1) Method 1: For areas that must meet a 15 percent VOC reduction requirement by 2008:

( A) Estimate the actual anthropogenic base year VOC inventory in 2002 with all 2002 control programs in place for all sources. PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 495 ( B) Using the same highway vehicle activity inputs used to calculate the actual 2002 inventory, run the appropriate motor vehicle emissions model for 2002 and for 2008 with all post 1990 CAA measures turned off.

Any other local inputs for vehicle inspection and maintenance ( I/ M) programs should be set according to the program that was required to be in place in 1990.

Fuel Reid Vapor Pressure ( RVP) should be set at 9.0 or 7.8 depending on the RVP required in the local area as a result of fuel RVP regulations promulgated in June,

1990.

( C) Calculate the difference between the 2002 and 2008 VOC emission factors calculated in Step B and multiply by 2002 vehicle miles traveled ( VMT). The result is the VOC emissions reductions that will occur between 2002 and 2008 without the benefits of any post 1990 CAA measures. These are the non creditable reductions that occur over this period.

( D) Subtract the non creditable reductions calculated in Step C from the actual anthropogenic 2002 inventory estimated in Step A. This adjusted VOC inventory is the basis for calculating the target level of emissions in 2008. PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 496 ( E) Reduce the adjusted VOC inventory calculated in Step D by 15 percent. The result is the target level of VOC emissions in 2008 in order to meet the 2008 ROP requirement. The actual projected 2008 inventory for all sources with all control measures in place and including projected 2008 growth in activity must be at or lower than this target level of emissions.

( 2) Method 2: For areas covered under 40 CFR 51.910( a)( 1)( ii)( C) and that meet an 18 percent VOC emission reduction requirement by 2008 with NOx substitution allowed,

following EPA's NOx Substitution Guidance:

( A) Estimate the actual anthropogenic base year inventory for both VOC and NOx in 2002 with all 2002 control programs in place.

( B) Using the same highway vehicle activity inputs used to calculate the actual 2002 inventory, run the appropriate motor vehicle emissions model for 2002 and for 2008 with all post 1990 CAA measures turned off.

Any other local inputs for I/ M programs should be set according to the program that was required to be in place in 1990. Fuel RVP should be set at 9.0 or 7.8 depending on the RVP required in the local area as a result of fuel RVP regulations promulgated in June, PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 497 1990.

( C) Calculate the difference between 2002 and 2008 VOC emissions factors calculated in Step B and multiply by 2002 VMT. The result is the VOC emissions reductions that will occur between 2002 and 2008 without the benefits of any post 1990 CAA measures. These are the non creditable VOC reductions that occur over this period. Calculate the difference between 2002 and 2008 NOx emissions factors calculated in Step B and multiply by 2002 VMT. This result is the NOx emissions reductions that will occur between 2002 and 2008 without the benefits of any post 1990 CAA measures.

These are the non creditable NOx reductions that occur over this period.

( D) Subtract the non creditable VOC reductions calculated in Step C from the actual anthropogenic 2002 VOC inventory estimated in Step A. Subtract the non creditable NOx reductions calculated in Step C from the actual anthropogenic 2002 NOx inventory estimated in Step A. These adjusted VOC and NOx inventories are the basis for calculating the target level of emissions in 2008.

( E) The target level of VOC and NOx emissions in 2008 PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 498 needed to meet the 2008 ROP requirement is any combination of VOC and NOx reductions from the adjusted inventories calculated in Step D that total 18 percent.

For example, the target level of VOC emissions in 2008 could be a 10 percent reduction from the adjusted VOC inventory in Step D and an 8 percent reduction from the adjusted NOx inventory in Step D. The actual projected 2008 VOC and NOx inventories for all sources with all control measures in place and including projected 2008 growth in activity must be at or lower than the target levels of VOC and NOx emissions.

( 3) Method 3: For all areas that have used Method 1 above ( and therefore do not have a NOx target level of emissions for 2008) and must meet an additional reduction VOC requirement of 9 percent every 3 years after 2008 with NOx substitution allowed, following EPA's NOx Substitution Guidance. Each subsequent target level of emissions should be calculated as an emission reduction from the previous target.

( A) Estimate the actual anthropogenic base year NOx inventory in 2002 with all 2002 control programs in place for all sources.

( B) Using the same highway vehicle activity inputs PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 499 used to calculate the actual 2002 inventory, run the appropriate emissions model for VOC and NOx in 2002 and 2008 ( previously done in Step B in Method 1 for VOC but not necessarily for NOx) and 2011 with all post 1990 CAA measures turned off. Any other local inputs for I/ M programs should be set according to the program that was required to be in place in 1990. Fuel RVP should be set at 9.0 or 7.8 depending on the RVP required in the local area as a result of fuel RVP regulations promulgated in June, 1990.

( C) Calculate the difference between 2008 and 2011 VOC emission factors calculated in Step B and multiply by 2002 VMT. The result is the VOC emissions reductions that will occur between 2008 and 2011 without the benefits of any post 1990 CAA measures. These are the non creditable VOC reductions that occur over this period. Calculate the difference between 2002 and 2011 NOx emission factors calculated in Step B and multiply by 2002 VMT. The result is the NOx emissions reductions that will occur between 2002 and 2011 without the benefits of any post 1990 CAA measures.

These are the non creditable NOx reductions that occur over this period. PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 500 ( D) Subtract the non creditable VOC reductions calculated in Step C from the 2008 VOC target level of emissions calculated previously. Subtract the non creditable NOx reductions calculated in Step C from the actual 2002 NOx inventory of emissions calculated in Step A. These adjusted VOC and NOx inventories are the basis for calculating the target level of emissions in 2011.

( E) The target level of VOC and NOx emissions in 2011 needed to meet the 2011 ROP requirement is any combination of VOC and NOx reductions from the adjusted inventories calculated in Step E that total 9 percent.

For example, the target level of VOC emissions in 2011 could be a 4 percent reduction from the adjusted VOC inventory in Step C and a 5 percent reduction from the adjusted NOx inventory in Step C. The actual projected 2011 VOC and NOx inventories for all sources with all control measures in place and including projected 2011 growth in activity must be at or lower than the target levels of VOC and NOx emissions.

( F) For subsequent 3 year periods until the attainment date, repeat the process for VOC. For subsequent 3

year periods, the adjusted NOx inventory should be PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 501 based on the difference in NOx emissions during that 3

year period when all post 1990 CAA measures are turned off, subtracted from the previous NOx target level of emissions. For example, for 2014, take the difference in NOx emissions reductions that will occur between 2011 and 2014 without the benefits of any post 1990 CAA measures. This value is subtracted from the 2011 target level of NOx emissions calculated in Step D to get the adjusted NOx inventory to be used as the basis for calculating the target level of NOx emissions in 2014.

( 4) Method 4: For all areas that have used Method 2 above ( and therefore do have a NOx target level of emissions for 2008) and must meet an additional reduction VOC requirement of 9 percent every 3 years after 2008 with NOx substitution allowed, following EPA's NOx Substitution Guidance. Each subsequent target level of emissions should be calculated as an emissions reductions from the previous target.

( A) Using the same highway vehicle activity inputs used to calculate the actual 2002 inventory, run the appropriate emissions model for VOC and NOx in 2008 ( previously done in Step B in Method 2) and 2011 with all post 1990 CAA measures turned off. Any other local PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 502 inputs for I/ M programs should be set according to the program that was required to be in place in 1990. Fuel RVP should be set at 9.0 or 7.8 depending on the RVP required in the local area as a result of fuel RVP regulations promulgated in June, 1990.

( B) Calculate the difference between 2008 and 2011 VOC emission factors calculated in Step A and multiply by 2002 VMT. The result is the VOC emissions reductions that will occur between 2008 and 2011 without the benefits of any post 1990 CAA measures. These are the non creditable VOC reductions that occur over this period. Calculate the difference between 2008 and 2011 NOx emission factors calculated in Step A and multiply by 2002 VMT. The result is the NOx emissions reductions that will occur between 2008 and 2011 without the benefits of any post 1990 CAA measures.

These are the non creditable NOx reductions that occur over this period.

( C) Subtract the non creditable VOC reductions calculated in Step B from the 2008 VOC target level of emissions calculated previously. Subtract the non creditable NOx reductions calculated in Step B from the 2008 NOx target level of emissions calculated PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 503 previously. These adjusted VOC and NOx inventories are the basis for calculating the target level of emissions in 2011.

( D) The target level of VOC and NOx emissions in 2011 needed to meet the 2011 ROP requirement is any combination of VOC and NOx reductions from the adjusted inventories calculated in Step E that total 9 percent.

For example, the target level of VOC emissions in 2011 could be a 4 percent reduction from the adjusted VOC inventory in Step C and a 5 percent reduction from the adjusted NOx inventory in Step C. The actual projected 2011 VOC and NOx inventories for all sources with all control measures in place and including projected 2011 growth in activity must be at or lower than the target levels of VOC and NOx emissions.

( E) Repeat entire process for subsequent 3 year periods until the attainment date. PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 504 APPENDIX B TO PREAMBLE GLOSSARY OF TERMS AND ACRONYMS ACT Alternative Control Techniques ARTBA American Road and Transportation Builders Association BACT Best Available Control Technology BART Best Available Retrofit Technology CAA Clean Air Act CAAAC Clean Air Act Advisory Committee CADCs Clean Air Development Communities CAIR Clean Air Interstate Rule CERR Consolidated Emissions Reporting Rule CFR Code of Federal Regulations CMAQ Congestion Mitigation and Air Quality CMSA Consolidated Metropolitan Statistical Area CO Carbon Monoxide CTG Control Technique Guideline DOT Department of Transportation EMFAC EMissions FACtors ( a mobile emissions model)

ESRP Emissions Statement Reporting Program CTG Control Technique Guidelines EGUs Electricity Generating Units EPA Environmental Protection Agency PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 505 FIP Federal Implementation Plan FMVCP Federal Motor Vehicle Control Program HON Hazardous Organic NESHAP ICR Information Collection Requirement I/ M Inspection and Maintenance Area km Kilometers LADCO Lake Michigan Air Directors Consortium LAER Lowest Achievable Emission Rate MACT Maximum Achievable Control Technology MCR Mid course Review MPO Metropolitan Planning Organization MSA Metropolitan Statistical Area NAA Nonattainment Area NAAMS National Ambient Air Modeling Strategy NAAQS National Ambient Air Quality Standards NAMS/ SLAMS National Air Monitoring Stations/ State and Local Air Monitoring Stations NAS National Academy of Sciences NCore National Core Monitoring Stations NESHAP National Emission Standards for Hazardous Air Pollutants NOx Nitrogen Oxides NOy Reactive Oxides of Nitrogen PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 506 NPRM Notice of Proposed Rulemaking NSR New Source Review NTAA National Tribal Air Association NTTAA National Technology Transfer Advancement Act of 1995 OMB Office of Management and Budget OTAG Ozone Transport Assessment Group OTR Ozone Transport Region PAMS Photochemical Assessment Monitoring Stations PM Particulate Matter PM2.5 Fine Particulate Matter PM10 Particulate Matter Having a Nominal Aerodynamic Diameter Less than or Equal to 10 Microns ppb Parts per Billion ppm Parts per Million PSD Prevention of Significant Deterioration psi Pounds Per Square Inch RACM Reasonably Available Control Measures RACT Reasonably Available Control Technology RFASA Regulatory Flexibility Act Screening Analysis RFP Reasonable Further Progress RIA Regulatory Impact Analysis ROG Reactive Organic Gases ROP Rate of Progress PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 507 RPOs Regional Planning Organizations RVP Reid Vapor Pressure SBA Small Business Administration SCR Selective Catalytic Reduction SIPs State Implementation Plans SO2 Sulfur Dioxide TAR Tribal Authority Rule TAS Treatment in the Same Manner as a State (" Treatment as State")

TEA 21 Transportation Equity Act for the Twenty first Century TIPs Tribal Implementation Plans tpy Tons Per Year TSP Total Suspended Particulates TTN/ SCRAM Technical Transfer Network/ Support Center for Regulatory Air Models UMRA Unfunded Mandates Reform Act of 1995 U. S. DOT United States Department of Transportation VCS Voluntary Consensus Standards VMT Vehicle Miles Traveled VOC Volatile Organic Compound PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 508 For the reasons stated in the preamble, Title 40, Chapter I of the Code of Federal Regulations is amended as follows:

Part 51   Requirements for Preparation, Adoption, and Submittal of Implementation Plans 1. The authority citation for part 51 continues to read as follows:

Authority: 23 U. S. C. 101; 42 U. S. C. 7401 7671q.

Subpart I  [ Amended]

2. § 51.165 is amended:

a. By revising paragraphs ( a)( 1)( iv)( A)( 1) and ( 2).

b. By adding paragraph ( a)( 1)( iv)( A)( 3).

c. By adding paragraphs ( a)( 1)( v)( E) and ( F).

d. By revising paragraph ( a)( 1)( x).

e. By revising paragraph ( a)( 3)( ii)( C).

f. By adding paragraphs ( a)( 8) and ( a)( 9).

The revisions and additions read as follows:

§ 51.165 Permit requirements.

( a) * * *

( 1) * * *

( iv) * * *

( A) * * *

( 1) Any stationary source of air pollutants that emits, or has the potential to emit, 100 tons per year or PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 509 more of any regulated NSR pollutant, except that lower emissions thresholds shall apply in areas subject to subpart 2, subpart 3, or subpart 4 of part D, title I of the Act,

according to paragraphs ( a)( 1)( iv)( A)( 1)( i) through ( vi) of this section.

( i) 50 tons per year of volatile organic compounds in any serious ozone nonattainment area.

( ii) 50 tons per year of volatile organic compounds in an area within an ozone transport region, except for any severe or extreme ozone nonattainment area.

( iii) 25 tons per year of volatile organic compounds in any severe ozone nonattainment area.

( iv) 10 tons per year of volatile organic compounds in any extreme ozone nonattainment area.

( v) 50 tons per year of carbon monoxide in any serious nonattainment area for carbon monoxide, where stationary sources contribute significantly to carbon monoxide levels in the area ( as determined under rules issued by the Administrator)

( vi) 70 tons per year of PM 10 in any serious nonattainment area for PM 10;

( 2) For the purposes of applying the requirements of paragraph ( a)( 8) of this section to stationary sources of nitrogen oxides located in an ozone nonattainment area or in PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 510 an ozone transport region, any stationary source which emits, or has the potential to emit, 100 tons per year or more of nitrogen oxides emissions, except that the emission thresholds in paragraphs ( a)( 1)( iv)( A)( 2)( i) through ( vi) of this section shall apply in areas subject to subpart 2 of part D, title I of the Act.

( i) 100 tons per year or more of nitrogen oxides in any ozone nonattainment area classified as marginal or moderate.

( ii) 100 tons per year or more of nitrogen oxides in any ozone nonattainment area classified as a transitional,

submarginal, or incomplete or no data area, when such area is located in an ozone transport region.

( iii) 100 tons per year or more of nitrogen oxides in any area designated under section 107( d) of the Act as attainment or unclassifiable for ozone that is located in an ozone transport region.

( iv) 50 tons per year or more of nitrogen oxides in any serious nonattainment area for ozone.

( v) 25 tons per year or more of nitrogen oxides in any severe nonattainment area for ozone.

( vi) 10 tons per year or more of nitrogen oxides in any extreme nonattainment area for ozone; or ( 3) Any physical change that would occur at a stationary source not qualifying under paragraphs PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 511 ( a)( 1)( iv)( A)( 1) or ( 2) of this section as a major stationary source, if the change would constitute a major stationary source by itself.

* * * * *

( v) * * *

( E) For the purpose of applying the requirements of ( a)( 8) of this section to modifications at major stationary sources of nitrogen oxides located in ozone nonattainment areas or in ozone transport regions, whether or not subject to subpart 2, part D, title I of the Act, any significant net emissions increase of nitrogen oxides is considered significant for ozone.

( F) Any physical change in, or change in the method of operation of, a major stationary source of volatile organic compounds that results in any increase in emissions of volatile organic compounds from any discrete operation,

emissions unit, or other pollutant emitting activity at the source shall be considered a significant net emissions increase and a major modification for ozone, if the major stationary source is located in an extreme ozone nonattainment area that is subject to subpart 2, part D,

title I of the Act.

* * * * *

( x)( A) Significant means, in reference to a net PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 512 emissions increase or the potential of a source to emit any of the following pollutants, a rate of emissions that would equal or exceed any of the following rates:

POLLUTANT EMISSION RATE Carbon monoxide: 100 tons per year ( tpy)

Nitrogen oxides: 40 tpy Sulfur dioxide: 40 tpy Ozone: 40 tpy of volatile organic compounds or NOx Lead: 0.6 tpy PM 10: 15 tpy PM 10 ( B) Notwithstanding the significant emissions rate for ozone in paragraph ( a)( 1)( x)( A) of this section, significant means, in reference to an emissions increase or a net emissions increase, any increase in actual emissions of volatile organic compounds that would result from any physical change in, or change in the method of operation of,

a major stationary source locating in a serious or severe ozone nonattainment area that is subject to subpart 2, part D, title I of the Act, if such emissions increase of volatile organic compounds exceeds 25 tons per year.

( C) For the purposes of applying the requirements of paragraph ( a)( 8) of this section to modifications at major stationary sources of nitrogen oxides located in an ozone nonattainment area or in an ozone transport region, the PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 513 significant emission rates and other requirements for volatile organic compounds in paragraphs ( a)( 1)( x)( A), ( B),

and ( E) of this section shall apply to nitrogen oxides emissions.

( D) Notwithstanding the significant emissions rate for carbon monoxide under paragraph ( a)( 1)( x)( A) of this section, significant means, in reference to an emissions increase or a net emissions increase, any increase in actual emissions of carbon monoxide that would result from any physical change in, or change in the method of operation of,

a major stationary source in a serious nonattainment area for carbon monoxide if such increase equals or exceeds 50 tons per year, provided the Administrator has determined that stationary sources contribute significantly to carbon monoxide levels in that area.

( E) Notwithstanding the significant emissions rates for ozone under paragraphs ( a)( 1)( x)( A) and ( B) of this section, any increase in actual emissions of volatile organic compounds from any emissions unit at a major stationary source of volatile organic compounds located in an extreme ozone nonattainment area that is subject to subpart 2, part D, title I of the Act shall be considered a significant net emissions increase.

* * * * * PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 514 ( 3) * * *

( i) * * *

( ii) * * *

( C) Emission Reduction Credits from Shutdowns and Curtailments.

( 1) Emissions reductions achieved by shutting down an existing emission unit or curtailing production or operating hours may be generally credited for offsets if they meet the requirements in paragraphs ( a)( 3)( ii)( C)( 1)( i) through ( ii)

of this section.

( i) Such reductions are surplus, permanent,

quantifiable, and federally enforceable.

( ii) The shutdown or curtailment occurred after the last day of the base year for the SIP planning process. For purposes of this paragraph, a reviewing authority may choose to consider a prior shutdown or curtailment to have occurred after the last day of the base year if the projected emissions inventory used to develop the attainment demonstration explicitly includes the emissions from such previously shutdown or curtailed emission units. However,

in no event may credit be given for shutdowns that occurred before August 7, 1977.

( 2) Emissions reductions achieved by shutting down an existing emissions unit or curtailing production or PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 515 operating hours and that do not meet the requirements in paragraph ( a)( 3)( ii)( C)( 1)( ii) of this section may be generally credited only if:

( i) The shutdown or curtailment occurred on or after the date the construction permit application is filed; or ( ii) The applicant can establish that the proposed new emissions unit is a replacement for the shutdown or curtailed emissions unit, and the emissions reductions achieved by the shutdown or curtailment met the requirements of paragraph ( a)( 3)( ii)( C)( 1)( i) of this section.

* * * * *

( 8) The plan shall provide that the requirements of this section applicable to major stationary sources and major modifications of volatile organic compounds shall apply to nitrogen oxides emissions from major stationary sources and major modifications of nitrogen oxides in an ozone transport region or in any ozone nonattainment area,

except in ozone nonattainment areas or in portions of an ozone transport region where the Administrator has granted a NOx waiver applying the standards set forth under section 182( f) of the Act and the waiver continues to apply.

( 9)( i) The plan shall require that in meeting the emissions offset requirements of paragraph ( a)( 3) of this section for ozone nonattainment areas that are subject to PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 516 subpart 2, part D, title I of the Act, the ratio of total actual emissions reductions of VOC to the emissions increase of VOC shall be as follows:

( A) In any marginal nonattainment area for ozone   at least 1.1: 1;

( B) In any moderate nonattainment area for ozone   at least 1.15: 1;

( C) In any serious nonattainment area for ozone   at least 1.2: 1;

( D) In any severe nonattainment area for ozone   at least 1.3: 1 ( except that the ratio may be at least 1.2: 1 if the approved plan also requires all existing major sources in such nonattainment area to use BACT for the control of VOC); and ( E) In any extreme nonattainment area for ozone   at least 1.5: 1 ( except that the ratio may be at least 1.2: 1 if the approved plan also requires all existing major sources in such nonattainment area to use BACT for the control of VOC); and ( ii) Notwithstanding the requirements of paragraph ( a)( 9)( i) of this section for meeting the requirements of paragraph ( a)( 3) of this section, the ratio of total actual emissions reductions of VOC to the emissions increase of VOC shall be at least 1.15: 1 for all areas within an ozone PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 517 transport region that is subject to subpart 2, part D, title I of the Act, except for serious, severe, and extreme ozone nonattainment areas that are subject to subpart 2, part D,

title I of the Act.

( iii) The plan shall require that in meeting the emissions offset requirements of paragraph ( a)( 3) of this section for ozone nonattainment areas that are subject to subpart 1, part D, title I of the Act ( but are not subject to subpart 2, part D, title I of the Act, including 8 hour ozone nonattainment areas subject to 40 CFR 51.902( b)), the ratio of total actual emissions reductions of VOC to the emissions increase of VOC shall be at least 1: 1.

( 10) The plan shall require that the requirements of this section applicable to major stationary sources and major modifications of PM 10 shall also apply to major stationary sources and major modifications of PM 10 precursors, except where the Administrator determines that such sources do not contribute significantly to PM 10 levels that exceed the PM 10 ambient standards in the area.

* * * * *

3. § 51.166 is amended:

a. By revising paragraph ( b)( 1)( ii).

b. By revising paragraph ( b)( 2)( ii).

c. By revising paragraph ( b)( 23). PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 518 d. By revising paragraph ( b)( 49).

e. By revising the second sentence of footnote 1 to paragraph ( i)( 5)( i)( e) to state: However, any net emissions increase of 100 tons per year or more of volatile organic compounds or nitrogen oxides subject to PSD would be required to perform an ambient impact analysis, including the gathering of ambient air quality data.

The revisions read as follows:

§ 51.166 Prevention of significant deterioration of air quality.

( b) * * *

( 1) * * *

( ii) A major source that is major for volatile organic compounds or NOx shall be considered major for ozone.

( 2) * * *

( ii) Any significant emissions increase ( as defined at paragraph ( b)( 39) of this section) from any emissions units or net emissions increase ( as defined in paragraph ( b)( 3) of this section) at a major stationary source that is significant for volatile organic compounds or NOx shall be considered significant for ozone.

* * * * *

( 23) * * *

POLLUTANT AND EMISSIONS RATE PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 519 * * *

Ozone: 40 tpy of volatile organic compounds or NOx * * * * *

( 49) * * *

( i) Any pollutant for which a national ambient air quality standard has been promulgated and any constituents or precursors for such pollutants identified by the Administrator ( e. g., volatile organic compounds and NOx are precursors for ozone);

Appendix S to part 51  [ Amended]

4. Appendix S to part 51 is amended as follows:

a. By revising the second sentence of paragraph I and the beginning of the fourth sentence of paragraph I up to the words " this Interpretive Ruling".

b. By revising paragraph II. A. 4( i)( a) and ( b).

c. By adding paragraph II. A. 4( i)( c).

d. By revising paragraph II. A. 4( ii).

e. By revising paragraph II. A. 5 ( ii).

f. By adding paragraphs II. A. 5( iv) through ( v).

g. By revising paragraph II. A. 6( v)( c).

h. By adding paragraphs II. A. 10( ii) through ( v).

i. By amending paragraph IV. A Condition 1 by removing footnote 5.

j. By amending paragraph IV. A Condition 3 by PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 520 redesignating footnote 6 as footnote 5 and by redesignating footnote 7 as footnote 6.

k. By amending paragraph IV. A Condition 4 by removing footnote 8.

l. By revising paragraph IV. C. 3.

m. By revising paragraph IV. D.

n. By revising paragraph IV. E.

o. By adding paragraphs IV. G through H.

p. By amending paragraph V. A by redesignating footnote 10 as footnote 7.

q. By revising paragraph VI.

The revisions and additions read as follows:

Appendix S to part 51   Emission Offset Interpretative Ruling I.

* * * A major new source or major modification which would locate in any area designated under section 107( d) of the Act as attainment or unclassifiable for ozone that is located in an ozone transport region or which would locate in an area designated in 40 CFR part 81, subpart C, as nonattainment for a pollutant for which the source or modification would be major may be allowed to construct only if the stringent conditions set forth below are met. * * *

For each area designated as exceeding a NAAQS ( nonattainment area) under 40 CFR part 81, subpart C, or for PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 521 any area designated under section 107( d) of the Act as attainment or unclassifiable for ozone that is located in an ozone transport region,* * *

II. * * *

A. * * *

4.( i) * * *

( a) Any stationary source of air pollutants which emits, or has the potential to emit, 100 tons per year or more of any pollutant subject to regulation under the Act,

except that lower emissions thresholds shall apply in areas subject to subpart 2, subpart 3, or subpart 4 of part D,

title I of the Act, according to paragraphs II. A. 4( i)( a)( 1)

through ( 6) of this Ruling.

( 1) 50 tons per year of volatile organic compounds in any serious ozone nonattainment area.

( 2) 50 tons per year of volatile organic compounds in an area within an ozone transport region, except for any severe or extreme ozone nonattainment area.

( 3) 25 tons per year of volatile organic compounds in any severe ozone nonattainment area.

( 4) 10 tons per year of volatile organic compounds in any extreme ozone nonattainment area.

( 5) 50 tons per year of carbon monoxide in any serious nonattainment area for carbon monoxide, where stationary PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 522 sources contribute significantly to carbon monoxide levels in the area ( as determined under rules issued by the Administrator)

( 6) 70 tons per year of PM 10 in any serious nonattainment area for PM 10;

( b) For the purposes of applying the requirements of paragraph IV. H of this Ruling to stationary sources of nitrogen oxides located in an ozone nonattainment area or in an ozone transport region, any stationary source which emits, or has the potential to emit, 100 tons per year or more of nitrogen oxides emissions, except that the emission thresholds in paragraphs II. A. 4( i)( b)( 1) through ( 6) of this Ruling apply in areas subject to subpart 2 of part D, title I of the Act.

( 1) 100 tons per year or more of nitrogen oxides in any ozone nonattainment area classified as marginal or moderate.

( 2) 100 tons per year or more of nitrogen oxides in any ozone nonattainment area classified as a transitional,

submarginal, or incomplete or no data area, when such area is located in an ozone transport region.

( 3) 100 tons per year or more of nitrogen oxides in any area designated under section 107( d) of the Act as attainment or unclassifiable for ozone that is located in an ozone transport region. PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 523 ( 4) 50 tons per year or more of nitrogen oxides in any serious nonattainment area for ozone.

( 5) 25 tons per year or more of nitrogen oxides in any severe nonattainment area for ozone.

( 6) 10 tons per year or more of nitrogen oxides in any extreme nonattainment area for ozone; or ( c) Any physical change that would occur at a stationary source not qualifying under paragraph II. A. 4( i)( a) or ( b) of this Ruling as a major stationary source, if the change would constitute a major stationary source by itself.

( ii) A major stationary source that is major for volatile organic compounds or nitrogen oxides is major for ozone.

* * * * *

5. * * *

( ii) Any net emission increase that is considered significant for volatile organic compounds shall be considered significant for ozone.

* * *

( iv) For the purpose of applying the requirements of paragraph IV. H of this Ruling to modifications at major stationary sources of nitrogen oxides located in ozone nonattainment areas or in ozone transport regions, whether PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 524 or not subject with respect to ozone to subpart 2, part D,

title I of the Act, any significant net emissions increase of nitrogen oxides is considered significant for ozone.

( v) Any physical change in, or change in the method of operation of, a major stationary source of volatile organic compounds that results in any increase in emissions of volatile organic compounds from any discrete operation,

emissions unit, or other pollutant emitting activity at the source shall be considered a significant net emissions increase and a major modification for ozone, if the major stationary source is located in an extreme ozone nonattainment area that is subject to subpart 2, part D,

title I of the Act.

6. * * *

( v) * * *

( c) The reviewing authority has not relied on it in issuing any permit under regulations approved pursuant to 40 CFR 51.165;

* * * * *

10. ( i) * * *

Pollutant And Emissions Rate Carbon monoxide: 100 tons per year ( tpy)

Nitrogen oxides: 40 tpy Sulfur dioxide: 40 tpy PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 525 Ozone: 40 tpy of volatile organic compounds or NOx Lead: 0.6 tpy Particulate matter: 25 tpy of particulate matter emissions PM 10: 15 tpy PM 10 ( ii) Notwithstanding the significant emissions rate for ozone in paragraph II. A. 10( i) of this Ruling,

significant means, in reference to an emissions increase or a net emissions increase, any increase in actual emissions of volatile organic compounds that would result from any physical change in, or change in the method of operation of,

a major stationary source locating in a serious or severe ozone nonattainment area that is subject to subpart 2, part D, title I of the Act, if such emissions increase of volatile organic compounds exceeds 25 tons per year.

( iii) For the purposes of applying the requirements of paragraph IV. H of this Ruling to modifications at major stationary sources of nitrogen oxides located in an ozone nonattainment area or in an ozone transport region, the significant emission rates and other requirements for volatile organic compounds in paragraphs II. A. 10( i), ( ii),

and ( v) of this Ruling shall apply to nitrogen oxides emissions.

( iv) Notwithstanding the significant emissions rate for carbon monoxide under paragraph II. A. 10( i) of this PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 526 Ruling, significant means, in reference to an emissions increase or a net emissions increase, any increase in actual emissions of carbon monoxide that would result from any physical change in, or change in the method of operation of,

a major stationary source in a serious nonattainment area for carbon monoxide if such increase equals or exceeds 50 tons per year, provided the Administrator has determined that stationary sources contribute significantly to carbon monoxide levels in that area.

( v) Notwithstanding the significant emissions rates for ozone under paragraphs II. A. 10( i) and ( ii) of this Ruling, any increase in actual emissions of volatile organic compounds from any emissions unit at a major stationary source of volatile organic compounds located in an extreme ozone nonattainment area that is subject to subpart 2, part D, title I of the Act shall be considered a significant net emissions increase.

* * * * *

IV. * * *

C. * * *

3. Emission Reduction Credits from Shutdowns and Curtailments.

( i) Emissions reductions achieved by shutting down an existing source or curtailing production or operating hours PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 527 may be generally credited for offsets if they meet the requirements in paragraphs IV. C. 3. i. 1. through 2 of this section.

( 1) Such reductions are surplus, permanent,

quantifiable, and federally enforceable.

( 2) The shutdown or curtailment occurred after the last day of the base year for the SIP planning process. For purposes of this paragraph, a reviewing authority may choose to consider a prior shutdown or curtailment to have occurred after the last day of the base year if the projected emissions inventory used to develop the attainment demonstration explicitly includes the emissions from such previously shutdown or curtailed emission units. However,

in no event may credit be given for shutdowns that occurred before August 7, 1977.

( ii) Emissions reductions achieved by shutting down an existing source or curtailing production or operating hours and that do not meet the requirements in paragraphs IV. C. 3. i. 1. through 2 of this section may be generally credited only if:

( 1) The shutdown or curtailment occurred on or after the date the new source permit application is filed; or ( 2) The applicant can establish that the proposed new source is a replacement for the shutdown or curtailed PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 528 source, and the emissions reductions achieved by the shutdown or curtailment met the requirements of paragraphs IV. C. 3. i. 1. through 2 of this section.

D. Location of offsetting emissions. The owner or operator of a new or modified major stationary source may comply with any offset requirement in effect under this Ruling for increased emissions of any air pollutant only by obtaining emissions reductions of such air pollutant from the same source or other sources in the same nonattainment area, except that the reviewing authority may allow the owner or operator of a source to obtain such emissions reductions in another nonattainment area if the conditions in IV. D. 1 and 2 are met.

1. The other area has an equal or higher nonattainment classification than the area in which the source is located.

2. Emissions from such other area contribute to a violation of the national ambient air quality standard in the nonattainment area in which the source is located.

E. Reasonable further progress. Permits to construct and operate may be issued if the reviewing authority determines that, by the time the source is to commence operation, sufficient offsetting emissions reductions have been obtained, such that total allowable emissions from existing sources in the region, from new or modified sources PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 529 which are not major emitting facilities, and from the proposed source will be sufficiently less than total emissions from existing sources prior to the application for such permit to construct or modify so as to represent ( when considered together with the plan provisions required under CAA section 172) reasonable further progress ( as defined in CAA section 171).

* * * * *

G. Offset Ratios.

1. In meeting the emissions offset requirements of paragraph IV. A, Condition 3 of this Ruling for ozone nonattainment areas that are subject to subpart 2, part D,

title I of the Act, the ratio of total actual emissions reductions of VOC to the emissions increase of VOC shall be as follows:

( i) In any marginal nonattainment area for ozone   at least 1.1: 1;

( ii) In any moderate nonattainment area for ozone   at least 1.15: 1;

( iii) In any serious nonattainment area for ozone   at least 1.2: 1;

( iv) In any severe nonattainment area for ozone   at least 1.3: 1 ( except that the ratio may be at least 1.2: 1 if the State also requires all existing major sources in such PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 530 nonattainment area to use BACT for the control of VOC); and ( v) In any extreme nonattainment area for ozone   at least 1.5: 1 ( except that the ratio may be at least 1.2: 1 if the State also requires all existing major sources in such nonattainment area to use BACT for the control of VOC); and 2. Notwithstanding the requirements of paragraph IV. G. 1 of this Ruling for meeting the requirements of paragraph IV. A, Condition 3 of this Ruling, the ratio of total actual emissions reductions of VOC to the emissions increase of VOC shall be at least 1.15: 1 for all areas within an ozone transport region that is subject to subpart 2, part D, title I of the Act, except for serious, severe,

and extreme ozone nonattainment areas that are subject to subpart 2, part D, title I of the Act.

( 3) In meeting the emissions offset requirements of paragraph IV. A, Condition 3 of this Ruling for ozone nonattainment areas that are subject to subpart 1, part D,

title I of the Act ( but are not subject to subpart 2, part D, title I of the Act, including 8 hour ozone nonattainment areas subject to 40 CFR 51.902( b)), the ratio of total actual emissions reductions of VOC to the emissions increase of VOC shall be at least 1: 1.

H. Additional provisions for emissions of nitrogen oxides in ozone transport regions and nonattainment areas. PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 531 The requirements of this Ruling applicable to major stationary sources and major modifications of volatile organic compounds shall apply to nitrogen oxides emissions from major stationary sources and major modifications of nitrogen oxides in an ozone transport region or in any ozone nonattainment area, except in ozone nonattainment areas where the Administrator has granted a NOx waiver applying the standards set forth under 182( f) and the waiver continues to apply.

* * * * *

VI. POLICY WHERE ATTAINMENT DATES HAVE NOT PASSED * * * In such cases, a new source locating in an area designated in 40 CFR 81.300 et seq. as nonattainment ( or,

where section III of this Ruling is applicable, a new source that would cause or contribute to a NAAQS violation) may be exempt from the Conditions of section IV. A if the conditions in paragraphs VI. A through C are met.

A. The new source meets the applicable SIP emission limitations.

B. The new source will not interfere with the attainment date specified in the SIP under section 110 of the Act.

C. The Administrator has determined that conditions A and B of this section are satisfied and such determination PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 532 is published in the Federal Register.

5. Subpart X of Part 51 is amended as follows:

( a) By redesignating § 51.908 as § 51.908( d), and by revising the section heading and adding paragraphs ( a), ( b), and ( c)

as follows:

§ 51.908 What modeling and attainment demonstration requirements apply for purposes of the 8 hour ozone NAAQS?

( a) What is the attainment demonstration requirement for an area classified as moderate or higher under subpart 2 pursuant to § 51.903? An area classified as moderate or higher under § 51.903 shall be subject to the attainment demonstration requirement applicable for that classification under section 182 of the Act, except such demonstration is due no later than 3 years after the area's designation for the 8 hour NAAQS.

( b) What is the attainment demonstration requirement for an area subject only to subpart 1 in accordance with § 51.902( b)? An area subject to § 51.902( b) shall be subject to the attainment demonstration under section 172( c)( 1) of the Act and shall submit an attainment demonstration no later than 3 years after the area's designation for the 8 hour NAAQS.

( c) What criteria must the attainment demonstration meet?

An attainment demonstration due pursuant to paragraph ( a) or PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 533 ( b) of this section must meet the requirements of § 51.112;

the adequacy of an attainment demonstration shall be demonstrated by means of a photochemical grid model or any other analytical method determined by the Administrator, in the Administrator's discretion, to be at least as effective.

* * *

( b) By revising § 51.906, § 51.910, § 51.912, § 51.914, § 51.915,

and § 51.916, and by adding § 51.917 and § 51.918 to read as follows:

Subpart X   Provisions for Implementation of 8 hour Ozone National Ambient Air Quality Standard.

* * * * *

§ 51.906 Redesignation to nonattainment following initial designations for the 8 hour NAAQS.

For any area that is initially designated attainment or unclassifiable for the 8 hour NAAQS and that is subsequently redesignated to nonattainment for the 8 hour ozone NAAQS,

any absolute, fixed date applicable in connection with the requirements of this part is extended by a period of time equal to the length of time between the effective date of the initial designation for the 8 hour NAAQS and the effective date of redesignation, except as otherwise provided in this subpart.

* * * * * PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 534 § 51.910 What requirements for reasonable further progress ( RFP) under sections 172( c)( 2) and 182 apply for areas designated nonattainment for the 8 hour ozone NAAQS?

( a) What are the general requirements for RFP for an area classified under subpart 2 pursuant to § 51.903? For an area classified under subpart 2 pursuant to § 51.903, the RFP requirements specified in section 182 of the Act for that area's classification shall apply.

( 1) What is the content and timing of the RFP plan required under sections 182( b)( 1) and 182( c)( 2)( B) of the Act for an area classified as moderate or higher pursuant to § 51.903 ( subpart 2 coverage)?

( i) Moderate or Above Area. ( A) Except as provided in paragraph ( a)( 1)( ii) of this section, for each area classified as moderate or higher, the State shall submit a SIP revision consistent with section 182( b)( 1) of the Act no later than 3 years after designation for the 8

hour NAAQS for the area. The 6 year period referenced in section 182( b)( 1) of the Act shall begin January 1 of the year following the year used for the baseline emissions inventory.

( B) For each area classified as serious or higher, the State shall submit a SIP revision consistent with section 182( c)( 2)( B) of the Act no later than 3 years PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 535 after designation for the 8 hour NAAQS. The final increment of progress must be achieved no later than the attainment date for the area.

( ii) Area with Approved 1 hour Ozone 15 Percent VOC ROP Plan. An area classified as moderate or higher that has the same boundaries as an area, or is entirely composed of several areas or portions of areas, for which EPA fully approved a 15 percent plan for the 1 hour NAAQS is considered to have met section 182( b)( 1) of the Act for the 8 hour NAAQS and instead:

( A) If classified as moderate, the area is subject to RFP under section 172( c)( 2) of the Act and shall submit no later than 3 years after designation for the 8

hour NAAQS a SIP revision that meets the requirements of paragraph ( b)( 2) of this section, consistent with the attainment date established in the attainment demonstration SIP.

( B) If classified as serious or higher, the area is subject to RFP under section 182( c)( 2)( B) of the Act and shall submit no later than 3 years after designation for the 8 hour NAAQS an RFP SIP providing for an average of 3 percent per year of VOC and/ or NOx emissions reductions for ( 1) the 6 year period beginning January 1 of the year following the year used for the baseline PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 536 emissions inventory; and ( 2) all remaining 3 year periods after the first 6 year period out to the area's attainment date.

( iii ) Moderate and Above Area for Which Only a Portion Has an Approved 1 hour Ozone 15 Percent VOC ROP Plan. An area classified as moderate or higher that contains one or more areas, or portions of areas, for which EPA fully approved a 15 percent plan for the 1 hour NAAQS as well as areas for which EPA has not fully approved a 15 percent plan for the 1 hour NAAQS shall meet the requirements of either paragraph ( a)( 1)( iii)( A) or ( B)

below.

( A) The State shall not distinguish between the portion of the area that previously met the 15 percent VOC reduction requirement and the portion of the area that did not, and ( 1) The State shall submit a SIP revision consistent with section 182( b)( 1) of the Act no later than 3 years after designation for the 8 hour NAAQS for the entire area. The 6 year period referenced in section 182( b)( 1) of the Act shall begin January 1 of the year following the year used for the baseline emissions inventory.

( 2) For each area classified as serious or PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 537 higher, the State shall submit a SIP revision consistent with section 182( c)( 2)( B) of the Act no later than 3 years after designation for the 8 hour NAAQS. The final increment of progress must be achieved no later than the attainment date for the area.

( B) The State shall treat the area as two parts, each with a separate RFP target as follows:

( 1) For the portion of the area without an approved 15 percent VOC RFP plan for the 1 hour standard,

the State shall submit a SIP revision consistent with section 182( b)( 1) of the Act no later than 3 years after designation for the 8 hour NAAQS for the area. The 6 year period referenced in section 182( b)( 1) of the Act shall begin January 1 of the year following the year used for the baseline emissions inventory. Emissions reductions to meet this requirement may come from anywhere within the 8 hour nonattainment area.

( 2) For the portion of the area with an approved 15 percent VOC plan for the 1 hour NAAQS, the State shall submit a SIP as required under paragraph ( b)( 2) of this section.

( 2) What restrictions apply on the creditability of emission control measures for the RFP plans required under this section? Except as specifically provided in section PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 538 182( b)( 1)( C) and ( D) and section 182( c)( 2)( B) of the Act,

all SIP approved or federally promulgated emissions reductions that occur after the baseline emissions inventory year are creditable for purposes of the RFP requirements in this section, provided the reductions meet the requirements for creditability, including the need to be enforceable,

permanent, quantifiable and surplus, as described for purposes of State economic incentive programs in the requirements of § 51.493 of this part.

( b) How does the RFP requirement of section 172( c)( 2) of the Act apply to areas subject to that requirement?

( 1) An area subject to the RFP requirement of subpart 1 pursuant to § 51.902( b) or a moderate area subject to subpart 2 as covered in paragraphs ( a)( 1)( ii)( A) of this section shall meet the RFP requirements of section 172( c)( 2) of the Act as provided in paragraph ( b)( 2) of this section.

( 2) The State shall submit no later than 3 years following designation for the 8 hour NAAQS a SIP providing for RFP consistent with the following:

( i) For each area with an attainment demonstration requesting an attainment date of 5 years or less after designation for the 8 hour NAAQS, the attainment demonstration SIP shall require that all emissions reductions needed for attainment be implemented by the PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 539 beginning of the attainment year ozone season.

( ii) For each area with an attainment demonstration requesting an attainment date more than 5 years after designation for the 8 hour NAAQS, the attainment demonstration SIP   ( A) Shall provide for a 15 percent emission reduction from the baseline year within 6 years after the baseline year.

( B) May use either NOx or VOC emissions reductions ( or both) to achieve the 15 percent emission reduction requirement. Use of NOx emissions reductions must meet the criteria in section 182( c)( 2)( C) of the Act.

( C) For each subsequent 3 year period out to the attainment date, the RFP SIP must provide for an additional increment of progress. The increment for each 3 year period must be a portion of the remaining emission reductions needed for attainment beyond those reductions achieved for the first increment of progress ( e. g., beyond 2008 for areas designated nonattainment in June 2004).

Specifically, the amount of reductions needed for attainment is divided by the number of years needed for attainment after the first increment of progress in order to establish an " annual increment." For each 3 year period out to the attainment date, the area must achieve roughly the portion PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 540 of reductions equivalent to three annual increments.

( c) What method should a State use to calculate RFP targets?

In calculating RFP targets for the initial 6 year period and the subsequent 3 year periods pursuant to this section, the State shall use the methods consistent with the requirements of sections 182( b)( 1)( C) and ( D) and 182( c)( 2)( B) to properly account for non creditable reductions.

( d) What is the baseline emissions inventory for RFP plans?

For the RFP plans required under this section, the baseline emissions inventory shall be determined at the time of designation of the area for the 8 hour NAAQS and shall be the emissions inventory for the most recent calendar year for which a complete inventory is required to be submitted to EPA under the provisions of subpart A of this part or a more recent alternative baseline emissions inventory provided the State demonstrates that the baseline inventory meets the CAA provisions for RFP and provides a rationale for why it is appropriate to use the alternative baseline year rather than 2002 to comply with the CAA's RFP provisions.

* * * * *

§ 51.912 What requirements apply for reasonably available control technology ( RACT) and reasonably available control PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 541 measures ( RACM) under the 8 hour NAAQS?

( a) What is the RACT requirement for areas subject to subpart 2 in accordance with § 51.903?

( 1) For each area subject to subpart 2 in accordance with § 51.903 of this part and classified moderate or higher,

the State shall submit a SIP revision that meets the NOx and VOC RACT requirements in sections 182( b)( 2) and 182( f) of the Act.

( 2) The State shall submit the RACT SIP for each area no later than 27 months after designation for the 8 hour ozone NAAQS.

( 3) The State shall provide for implementation of RACT as expeditiously as practicable but no later than the first ozone season or portion thereof which occurs 30 months after the RACT SIP is due.

( b) How do the RACT provisions apply to a major stationary source? Volatile organic compounds and NOx are to be considered separately for purposes of determining whether a source is a major stationary source as defined in section 302 of the Act.

( c) What is the RACT requirement for areas subject only to subpart 1 pursuant to § 51.902( b)? Areas subject only to subpart 1 pursuant to § 51.902( b) are subject to the RACT requirement specified in section 172( c)( 1) of the Act. PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 542 ( 1) For an area that submits an attainment demonstration that requests an attainment date 5 years or less after designation for the 8 hour NAAQS, the State shall meet the RACT requirement by submitting an attainment demonstration SIP demonstrating that the area has adopted all control measures necessary to demonstrate attainment as expeditiously as practicable.

( 2) For an area that submits an attainment demonstration that requests an attainment date more than 5 years after designation for the 8 hour NAAQS, the State shall submit a SIP consistent with the requirements of § 51.912( a) and ( b) except the State shall submit the RACT SIP for each area with its request pursuant to Clean Air Act section 172( a)( 2)( A) to extend the attainment date.

( d) What is the Reasonably Available Control Measures ( RACM) requirement for areas designated nonattainment for the 8 hour NAAQS? For each nonattainment area required to submit an attainment demonstration under § 51.908, the State shall submit with the attainment demonstration a SIP revision demonstrating that it has adopted all RACM necessary to demonstrate attainment as expeditiously as practicable and to meet any RFP requirements.

§ 51.913 How do the section 182( f) NOx exemption provisions apply for the 8 hour NAAQS? PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 543 ( a) A person may petition the Administrator for an exemption from NOx obligations under section 182( f) for any area designated nonattainment for the 8 hour ozone NAAQS and for any area in a section 184 ozone transport region.

( b) The petition must contain adequate documentation that the criteria in section 182( f) are met.

( c) A section 182( f) NOx exemption granted for the 1 hour ozone standard does not relieve the area from any NOx obligations under section 182( f) for the 8 hour ozone standard.

§ 51.914 What new source review requirements apply for 8

hour ozone nonattainment areas?

The requirements for new source review for the 8 hour ozone standard are located in § 51.165 of this part.

§ 51.915 What emissions inventory requirements apply under the 8 hour NAAQS?

For each nonattainment area subject to subpart 2 in accordance with § 51.903, the emissions inventory requirements in sections 182( a)( 1) and 182( a)( 3) of the Act shall apply, and such SIP shall be due no later 2 years after designation. For each nonattainment area subject only to subpart 1 in accordance with § 51.902( b), the emissions inventory requirement in section 172( c)( 3) of the Act shall apply, and an emission inventory SIP shall be due no later 3 PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 544 years after designation. For purposes of defining the data elements for the emissions inventories for these areas, the ozone relevant data element requirements under 40 CFR 51 subpart A apply.

§ 51.916 What are the requirements for an Ozone Transport Region under the 8 hour NAAQS?

( a) In General. Sections 176A and 184 of the Act apply for purposes of the 8 hour NAAQS.

( b) RACT Requirements for Certain Portions of an Ozone Transport Region.

( 1) The State shall submit a SIP revision that meets the RACT requirements of section 184 of the Act for each area that is located in an ozone transport region and that is   ( i) designated as attainment or unclassifiable for the 8 hour standard;

( ii) designated nonattainment and classified as marginal for the 8 hour standard; or ( iii) designated nonattainment and covered solely under subpart 1 of part D, title I of the CAA for the 8 hour standard.

( 2) The State is required to submit the RACT revision no later than September 16, 2006 and shall provide for implementation of RACT as expeditiously as practicable but PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 545 no later than May 1, 2009.

§ 51.917 What is the effective date of designation for the Las Vegas, NV, 8 hour ozone nonattainment area?

The Las Vegas, NV, 8 hour ozone nonattainment area ( designated on September 17, 2004 ( 69 FR 55956)) shall be treated as having an effective date of designation of June 15, 2004, for purposes of calculating SIP submission deadlines, attainment dates, or any other deadline under this subpart.

§ 51.918 Can any SIP planning requirements be suspended in 8 hour ozone nonattainment areas that have air quality data that meets the NAAQS?

Upon a determination by EPA that an area designated nonattainment for the 8 hour ozone NAAQS has attained the standard, the requirements for such area to submit attainment demonstrations and associated reasonably available control measures, reasonable further progress plans, contingency measures, and other planning SIPs related to attainment of the 8 hour ozone NAAQS shall be suspended until such time as ( 1) the area is redesignated to attainment, at which time the requirements no longer apply,

or ( 2) EPA determines that the area has violated the 8 hour ozone NAAQS.

PART 52  [ Amended] PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 546 1. The authority citation for part 52 continues to read as follows:

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

Subpart A  [ Amended]

2. Section 52.21 is amended by:

a. Revising paragraph ( b)( 1)( ii).

b. Revising paragraph ( b)( 2)( ii).

c. Revising paragraph ( b)( 23)( i).

d. Revising paragraph ( b)( 50).

e. By revising the second sentence of footnote 1 to paragraph ( i)( 5)( i)( e) to state: However, any net emissions increase of 100 tons per year or more of volatile organic compounds or nitrogen oxides subject to PSD would be required to perform an ambient impact analysis, including the gathering of ambient air quality data.

The revisions read as follows:

( b) * * *

( 1) * * *

( ii) A major source that is major for volatile organic compounds or NOx shall be considered major for ozone.

* * * * *

( 2) * * *

( ii) Any significant emissions increase ( as defined at paragraph ( b)( 40) of this section) from any emissions units PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 547 or net emissions increase ( as defined in paragraph ( b)( 3) of this section) at a major stationary source that is significant for volatile organic compounds or NOx shall be considered significant for ozone.

( 23)

( i) * * *

Pollutant and Emissions Rate * * *

Ozone: 40 tpy of volatile organic compounds or NOx * * * * *

( 50) * * *

( i) Any pollutant for which a national ambient air quality standard has been promulgated and any constituents or precursors for such pollutants identified by the Administrator ( e. g., volatile organic compounds and NOx are precursors for ozone);

3. Section 52.24 is revised to read as follows:

§ 52.24 Statutory restriction on new sources.

( a) Any area designated nonattainment pursuant to section 107( d) of the Act to which, immediately prior to the enactment of the Amendments to the Act of 1990 ( November 15,

1990), a prohibition of construction or modification of major stationary sources was applied, shall retain that prohibition if such prohibition was applied by virtue of a PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 548 finding of the Administrator that the State containing such an area:

( 1) Failed to submit an implementation plan meeting the requirements of an approvable new source review permitting program; or ( 2) Failed to submit an implementation plan that provided for timely attainment of the national ambient air quality standard for sulfur dioxide by December 31, 1982.

This prohibition shall apply until the Administrator approves a plan for such area as meeting the applicable requirements of part D of title I of the Act as amended ( NSR permitting requirements) or subpart 5 of part D of title I of the Act as amended ( relating to attainment of the national ambient air quality standards for sulfur dioxide),

as applicable.

( b) Permits to construct and operate as required by permit programs under section 172( c)( 5) of the Act may not be issued for new or modified major stationary sources proposing to locate in nonattainment areas or areas in a transport region where the Administrator has determined that the applicable implementation plan is not being adequately implemented for the nonattainment area or transport region in which the proposed source is to be constructed or modified in accordance with the requirements of part D of PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 549 title I of the Act.

( c) Whenever, on the basis of any information, the Administrator finds that a State is not in compliance with any requirement or prohibition of the Act relating to the construction of new sources or the modification of existing sources, the Administrator may issue an order under section 113( a)( 5) of the Act prohibiting the construction or modification of any major stationary source in any area to which such requirement applies.

( d) The restrictions in paragraphs ( a) and ( b) of this section apply only to major stationary sources of emissions that cause or contribute to concentrations of the pollutant ( or precursors, as applicable) for which the transport region or nonattainment area was designated such, and for which the applicable implementation plan is not being carried out in accordance with, or does not meet, the requirements of part D of title I of the Act.

( e) For any transport region or any area designated as nonattainment for any national ambient air quality standard,

the restrictions in paragraphs ( a) and ( b) of this section shall apply to any major stationary source or major modification that would be major for the pollutant ( or precursors, where applicable) for which the area is designated nonattainment or a transport region, if the PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 550 stationary source or major modification would be constructed anywhere in the designated nonattainment area or transport region.

( f) The provisions in § 51.165 of this chapter shall apply in interpreting the terms under this section.

( g) At such time that a particular source or modification becomes a major stationary source or major modification solely by virtue of a relaxation in any enforceable limitation which was established after August 7,

1980, on the capacity of the source or modification otherwise to emit a pollutant, such as a restriction on hours of operation, then:

( 1) If the construction moratorium imposed pursuant to this section is still in effect for the nonattainment area or transport region in which the source or modification is located, then the permit may not be so revised; or ( 2) If the construction moratorium is no longer in effect in that area, then the requirements of § 51.165 of this chapter shall apply to the source or modification as though construction had not yet commenced on the source or modification.

( h) This section does not apply to major stationary sources or major modifications locating in a clearly defined part of a nonattainment area or transport region ( such as a PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 551 political subdivision of a State), where EPA finds that a plan which meets the requirements of part D of title I of the Act is in effect and is being implemented in that part.

( i) [ Reserved]

( j) [ Reserved]

( k) For an area designated as nonattainment after July 1, 1979, the Emission Offset Interpretative Ruling, 40 CFR part 51, appendix S shall govern permits to construct and operate applied for during the period between the date of designation as nonattainment and the date the NSR permit program meeting the requirements of part D is approved. The Emission Offset Interpretative Ruling, 40 CFR part 51,

appendix S, shall also govern permits to construct and operate applied for in any area designated under section 107( d) of the CAA as attainment or unclassifiable for ozone that is located in an ozone transport region prior to the date the NSR permitting program meeting the requirements of part D is approved.

PART 80  [ Amended]

1. The authority citation for part 80 continues to read as follows:

Authority: 42 U. S. C. 7414, 7545, and 7601( a).

Subpart D  [ Amended]

2. Section 80.70( m) is amended by: PREDECISIONAL DRAFT   DO NOT QUOTE, CITE OR DISTRIBUTE 10/ 20/ 05 552 a. In the second sentence, striking " included in" and replacing it with " identified pursuant to".

b. In the third sentence, striking " listed in" and replacing it with " identified pursuant to".

c. Striking all text after the third sentence, and replacing it with the following:

( 1) An area identified as a covered area pursuant to this paragraph ( m), whose classification as a severe nonattainment area under the 1 hour ozone NAAQS is removed as a result of removal of the 1 hour ozone NAAQS, remains a covered area as follows:

( I) prior to redesignation as attainment for the 8 hour ozone NAAQS the area remains a covered area;

( ii) after redesignation as attainment for the 8 hour ozone NAAQS  [ RESERVED].

( 2) An area identified as a covered area pursuant to this paragraph ( m), whose classification as a severe nonattainment area under the 1 hour ozone NAAQS is removed as a result of redesignation to attainment for the 1 hour ozone NAAQS, remains a covered area as follows:

[ RESERVED]


[Federal Register: July 17, 2009 (Volume 74, Number 136)]
[Notices]
[Page 34745-34746]
[DOCID:fr17jy09-40]

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DEPARTMENT OF ENERGY

Federal Energy Regulatory Commission

[Docket No. ER02-862-011]

Entergy Power Ventures, L.P.; Notice of Filing

July 10, 2009.
    Take notice that on July 9, 2009, Entergy Power Ventures, L.P.
submitted a revised version of its market-based rate tariff reflecting
the tariff requirements established in Order No. 697-A.
    Any person desiring to intervene or to protest this filing must
file in accordance with Rules 211 and 214 of the Commission's Rules of
Practice and Procedure (18 CFR 385.211, 385.214). Protests will be
considered by the Commission in determining the appropriate action to
be taken, but will not serve to make protestants parties to the
proceeding. Any person wishing to become a party must file a notice of
intervention or motion to intervene, as appropriate. Such notices,
motions, or protests must be filed on or before the comment date.
Anyone filing a motion to intervene or protest must serve a copy of
that document on the Applicant and all the parties in this proceeding.
    The Commission encourages electronic submission of protests and
interventions in lieu of paper using the ``eFiling'' link at http://
www.ferc.gov. Persons unable to file electronically should submit an
original and 14 copies of the protest or intervention to the Federal
Energy Regulatory Commission, 888 First Street, NE., Washington, DC
20426.
    This filing is accessible on-line at http://www.ferc.gov, using the
``eLibrary'' link and is available for review in the Commission's
Public Reference Room in Washington, DC. There is an ``eSubscription''
link on the Web site that enables subscribers to receive e-mail
notification when a document is added to a subscribed docket(s). For
assistance with any FERC Online service, please e-mail
<EMAIL_ADDRESS>or call<PHONE_NUMBER> (toll free). For
TTY, call<PHONE_NUMBER>.

    Comment Date: 5 p.m. Eastern Time on July 14, 2009.

Kimberly D. Bose,
Secretary.
[FR Doc. E9-16974 Filed 7-16-09; 8:45 am]

BILLING CODE 6717-01-P