As areas are designated for the 8 hour ozone NAAQS, we must address how those areas will transition from current implementation of the 1 hour standard to implementation of the 8 hour standard. In addressing this issue, we considered a number of factors, including the existing `` antibacksliding provisions of the CAA, Congress' intent, as evidenced in the statute, to ensure continued progress toward attainment of the ozone standard, and the Supreme Court's interpretation of the CAA and Congressional intent. In subsection 1 of this section, we provide background information on the transition process we set forth in 1997 ( and subsequently amended through regulation) and we summarize the statutory antibacksliding provisions and the Congressional intent in enacting these provisions and subpart 2 of the CAA. In subsection 2, we identify two proposed options to effect the transition from implementation of the 1 hour standard to the 8 hour standard that concern the revocation of the 1 hour standard in whole or revocation of the 1 hour standard in part. In subsection 3, we indicate   in light of the CAA provisions and Congressional intent   which requirements that applied for purposes of the 1 hour standard should continue to apply to areas after they are designated for the 8 hour standard. Next, in subsection 4, we consider whether there is a point at which the States should no longer be required to implement those obligations EPA determines continue to apply after areas are designated for the 8 hour standard. Finally, in subsection 5, we indicate how it will ensure through regulation that the public knows which `` 1 hour'' obligations remain in place and for which areas. 1. Background a. Background on EPA's current regulation for governing the transition. At the time we promulgated the 8 hour ozone NAAQS in July 1997, we issued a rule ( 40 CFR 50.9( b)) providing that the 1 hour standard would no longer apply to an area once we determined that the area had attained the 1 hour NAAQS. ( 62 FR 38856, July 18, 1997). This process became known as `` revocation'' of the 1 hour NAAQS. We interpreted that provision to mean that once the 1 hour standard was revoked, the area's 1 hour ozone designation no longer applied. Due to the ongoing litigation concerning the 8 hour ozone NAAQS and our implementation strategy for that standard, we subsequently modified 40 CFR 50.9( b) in part to provide that `` after the 8 hour standard has become fully enforceable under part D of title I of the CAA and subject to no further legal challenge, the 1 hour standards set forth in this section will no longer apply to an area once we determine that the area has air quality meeting the 1 hour standard.'' ( 65 FR 45181, July 20, 2000). 22 Thus, currently, three criteria would need to be met before we could revoke the 1 hour standard for an area: ( 1) The 8 hour standard would need to be fully enforceable, ( 2) all legal challenges to the 8 hour ozone NAAQS would need to be resolved; and ( 3) we would need to determine that an area had attained the 1 hour standard. In this section, we are proposing to revise 40 CFR 50.9( b) to reflect more appropriately the implementation strategy that we develop pursuant to this proposal. At the time that we initially promulgated 40 CFR 50.9( b), we contemplated that areas would not be subject to the planning obligations of subpart 2 for purposes of implementing the revised 8 hour ozone NAAQS. Furthermore, we stated that `` as a matter of law,'' areas should continue to be subject to the planning obligations of subpart 2 for purposes of implementing the 1 hour standard until such time as they attained the 1 hour ozone NAAQS. Thus, we contemplated that the 1 hour NAAQS   and the associated designation and classification under subpart 2 for an area, including any mandated control obligations   would continue to apply until the area attained that standard. At that time, the area would be subject only to the planning obligations of subpart 1. In light of the VerDate Jan< 31> 2003 20: 45 May 30, 2003 Jkt 200001 PO 00000 Frm 00018 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 02JNP2. SGM 02JNP2 32819 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 23 Specifically, section 172( e) requires EPA to promulgate regulations providing for controls that `` are not less stringent than the controls applicable to areas designated nonattainment'' before relaxation of the standard. Supreme Court's ruling that we cannot ignore subpart 2 for purposes of implementing a revised ozone NAAQS, we believe it is appropriate to reconsider how to transition from the 1 hour NAAQS to the 8 hour NAAQS in light of the statutory structure of the CAA, as amended in 1990. Our principal objectives for the mechanism that would ensure a smooth transition to implementation of the 8 hour standard are to ensure ( 1) that there will be no degradation of air quality, ( 2) that areas continue to make progress toward ozone attainment, and ( 3) consistency with the intent of Congress when it originally established the implementation structure for ozone in subpart 2 of the CAA. We believe the several alternative approaches proposed below are more consistent with the implementation path we are proposing in light of the Supreme Court's remand. These alternatives would more effectively continue the momentum towards cleaner air than would have been accomplished under the current 40 CFR 50.9( b) structure while allowing 8 hour ozone nonattainment areas to more readily focus on their 8 hour ozone standard SIP obligations. b. Background on the CAA's antibacksliding provisions. The CAA contains a number of provisions that indicate that Congress did not intend to allow States to alter or remove provisions from implementation plans if the plan revision would jeopardize the air quality protection provided in the approved plan. Section 110( l) provides that EPA may not approve a SIP revision if it interferes with any applicable requirement concerning attainment and ROP or any other applicable requirement of the CAA. Congress created a tougher test for areas that might want to relax control requirements that were in SIPs prior to the CAA Amendments of 1990. Section 193 of the CAA prohibits modification of a control requirement in effect or required to be adopted as of November 15, 1990 ( i. e., enactment of the 1990 CAA Amendments), unless such a modification would ensure equivalent or greater emissions reductions. We also believe that Congress set an additional statutory bar for 1 hour ozone areas that were designated nonattainment and classified at the time of the 1990 CAA Amendments. For these areas, Congress classified the areas `` as a matter of law'' and provided that even upon redesignation to attainment, such areas could not remove from the SIP control measures specified in subpart 2 (`` applicable requirements''), but could shift them to contingency measures that would be implemented to `` promptly correct any violation of the standard.'' For these reasons, we believe that although Congress gave EPA the power to revise the existing ozone standard, Congress did not open the door for States to remove SIP approved measures or to avoid control obligations with which they have not yet complied. One other provision, though not directly applicable, sheds light on Congress' intent. In 1990, Congress enacted section 172( e), which applies when EPA revises a NAAQS and makes it less stringent. This provision specifies that in those circumstances, States cannot relax control obligations that apply in nonattainment area SIPs or avoid adopting those that they have not yet adopted. 23 Because Congress specifically mandated that such control measures need to be adopted or retained even when EPA relaxes a standard, we believe that Congress did not intend to permit States to remove control measures when EPA revises a standard to make it more stringent, as in the case of the 8 hour standard. We also note that in finding EPA's subpart 1 only implementation approach unlawful, the Supreme Court voiced concern that EPA not render subpart 2 `` abruptly obsolete'' because `` Subpart 2 obviously was enacted to govern implementation for some time. * * * A plan reaching so far into the future was not enacted to be abandoned the next time EPA reviewed the ozone standard   which Congress knew could happen at any time, since technical staff papers already had been completed in 1989.'' In response to the decision, we are now proposing ( as noted above in the discussion on classifications) to use subpart 2 in implementing the 8 hour standard. However, the classification systems we are proposing today would result in the majority of ozone nonattainment areas that are currently classified for the 1 hour standard being placed in a lower classification for the 8 hour standard. Our proposed antibacksliding approaches, discussed below, would not render obsolete the congressionally specified control measure requirements of subpart 2 for 1 hour ozone nonattainment areas at a time when those areas have not yet met either of the health based ozone standards. 2. When Will EPA Revoke the 1 Hour Standard?

We are proposing to revoke the 1 hour standard either in part or in whole 1 year following designations for the 8 hour NAAQS. As discussed below, we are proposing two different legal mechanisms for achieving the revocation. Under either approach, however, the same stipulations continue to apply to areas currently or formerly designated nonattainment for the 1 hour standard. The deciding factor supporting the schedule for the revocation in our proposal is to ensure areas do not have to perform conformity analyses for both the 1 hour and 8 hour standards at the same time. As background, areas designated nonattainment for the first time for a new standard ( e. g., the 8 hour ozone standard) have a 1 year grace period before conformity applies for that standard ( i. e., a 1 year grace period before conformity applies for the 8 hour ozone standard). This 1 year grace period before conformity is required for the 8 hour standard applies to all areas designated nonattainment for the 8 hour standard, regardless of their 1 hour NAAQS designation status. Thus, under either of the mechanisms described below, we are proposing that conformity for the 1 hour standard no longer apply 1 year following the effective date of the 8 hour designation ( i. e., when the standard is revoked in whole or in part). However, conformity obligations for the 1 hour ozone standard would remain applicable during the grace period and would not be affected by the designation of areas for the 8 hour standard. Our intentions regarding conformity   as well as a more complete discussion of transportation conformity appear elsewhere in this proposal. ( i) Option 1: Revocation in whole of the 1 hour standard. Under this option, which is our preferred option, EPA would revoke the 1 hour standard and the associated designations and classifications 1 year following the effective date of the designations for the 8 hour NAAQS. The complete revocation of the 1 hour standard would occur in late spring of 2005 on the effective date of the 8 hour NAAQS designations, which will be issued by April 15, 2004. In order to address the anti backsliding issues discussed in section 3, below, EPA would promulgate regulations specifying those requirements that would continue to apply after the revocation of the 1 hour standard. The regulations would also specify the geographic areas in which those obligations continue to apply, since areas designated nonattainment VerDate Jan< 31> 2003 20: 45 May 30, 2003 Jkt 200001 PO 00000 Frm 00019 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 02JNP2. SGM 02JNP2 32820 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 24 A number of commenters in the pre proposal phase recommended an approach premised on retention of the standard. See, e. g., Letter of December 5, 2002 from Michael P. Kenny, Executive Director, California Air Resources Board, to Jeffrey R. Holmstead, EPA Assistant Administrator for Air and Radiation. Available at: http:// www. epa. gov/ ttn/ naaqs/ ozone/ o3imp8hr/. 25 Additional Options Considered for `` Proposed Rule to Implement the 8 Hour Ozone National Ambient Air Quality Standard.'' U. S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Research Triangle Park, NC. March 2003. for the 8 hour standard may include counties that were not designated nonattainment for the 1 hour standard. The anti backsliding regulations would apply only to the portion of the 8 hour nonattainment area that was designated nonattainment for the 1 hour standard. ( ii) Option 2: Partial revocation of 1 hour standard. Under this mechanism, EPA would retain the 1 hour standard and its associated designations and classifications for limited purposes ( viz., those discussed and proposed below in section 3) until the area meets the 1 hour standard. For many areas, this is likely to extend well beyond May 2005, the date of likely revocation under option 1.24 For all remaining purposes, EPA would revoke the 1 hour standard and the associated designations and classifications 1 year after the effective date of designations for the 8 hour standard. As noted above, we believe that Congress initially intended the State's obligations under subpart 2 to continue to apply `` as a matter of law,'' and the 1 hour designations and classifications   established for the circumstances present when the requirements were enacted   are the mechanism Congress identified for triggering the applicability of these requirements. Under this theory, Congress would have intended the standard to remain in place for purposes of control measures and NSR requirements, as discussed above. While the partial retention of the standard itself and the associated designations and classifications would be the mechanism used to retain the specified obligations, we would need to promulgate regulations similar to those described in option 1 to ensure that it is clear for which purposes the standard is being retained. ( iii) Request for comment. Both of these options would achieve the same result   ensuring the continued applicability of certain control requirements in subpart 2 and ensuring continued improvement in air quality, while shifting the focus from modeling and other planning requirements for the 1 hour standard to analyses for the 8 hour standard. We solicit comment on which mechanism is preferable for accomplishing the overriding objective of preventing backsliding from statutory and SIP requirements while achieving a smooth transition to implementation of the new standard. In addition, EPA also solicits comment on whether to retain the limit in current 40 CFR 50.9( b) that the 1 hour standard will not be revoked for any area until the 8 hour standard is no longer subject to legal challenge. ( iv) Other possible approaches for the transition from the 1 hour to the 8 hour standard. EPA considered other approaches for the timing of the revocation of the 1 hour ozone standard; these are discussed in a separate document available in the docket. 25 3. What Obligations Should Continue To Apply as an Area Begins To Implement the 8 Hour Ozone NAAQS and What Obligations Should no Longer Apply? In this section, we consider what obligations from subpart 2 relative to the 1 hour ozone standard should continue to apply to areas after they have been designated for the 8 hour standard. We are proposing that the continuity of particular obligations should vary depending on the attainment status of an area for both the 1 hour and 8 hour standard. We first discuss those obligations that we propose should continue to apply to an area that is designated nonattainment for the 8 hour NAAQS, and that was designated nonattainment for the 1 hour ozone standard on or after November 15, 1990. Second, we discuss those obligations that should continue to apply to an area that is designated attainment for the 8 hour NAAQS, and that was designated nonattainment for the 1 hour standard on or after November 15, 1990. ( This section addresses only the continued application of requirements that applied by virtue of an area having been designated nonattainment for the 1 hour standard at some point following enactment of the CAA Amendments of 1990. It does not address areas that have been designated attainment for the 1 hour standard at all times since November 15, 1990, because they would not have any continuing obligations under subpart 2 for purposes of the 1 hour standard.) Finally, we address States' continued obligations with respect to the NOX SIP Call. We address this issue separately since this obligation applies statewide and without respect to the designation status of areas within the State. In general, the types of obligations that apply to areas by virtue of their 1 hour classification can be broken into three groups: control obligations; measures to address growth in new sources; and planning obligations. Control measures include specific emission reduction obligations such as NOX RACT, I/ M, and fuel programs, which are mandated in subpart 2. Measures to address growth are NSR ( required under subpart 1 and subpart 2) and conformity ( required by subpart 1). Planning obligations consist of attainment and maintenance demonstrations and RFP plans. For purposes of clarifying what we are proposing with respect to control measures, we also discuss in this section `` discretionary'' control measures that are not specified in subpart 2. Generally, these are control measures or other obligations the State selected and adopted into the SIP for purposes of attainment, ROP or any other goal to benefit air quality, but which are not specifically mandated by subpart 2. a. What obligations should continue to apply for an area that is designated nonattainment for the 8 hour NAAQS and that was designated nonattainment for the 1 hour ozone NAAQS on or after November 15, 1990? We believe that Congress intended each area that was classified for the 1 hour ozone NAAQS under subpart 2 to adopt the specified control obligations in subpart 2 for the area's 1 hour classification. We interpret the mandated obligations in subpart 2 for purposes of an area's 1 hour ozone classification to remain applicable to such areas by virtue of the area's classification `` as a matter of law'' in 1990. ( Appendix B of this proposed rulemaking contains a list of the subpart 2 requirements that remain applicable.) The three types of obligations described above ( control obligations, measures to address growth in new sources, and planning obligations) are discussed separately below. ( i) Control measures. We are proposing that all areas designated nonattainment for the 8 hour ozone NAAQS remain subject to control measures that applied by virtue of the area's classification for the 1 hour standard. To the extent the area has met the obligation and the control measure is a part of the approved SIP, the State could not modify or remove that measure except to the extent that it could modify or remove that measure for purposes of the 1 hour standard and subject to a demonstration under section 110( l) that modification or removal would not interfere with attainment or maintenance of the 8 hour ozone VerDate Jan< 31> 2003 20: 45 May 30, 2003 Jkt 200001 PO 00000 Frm 00020 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 02JNP2. SGM 02JNP2 32821 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 26 In addition, for a revision to an obligation that was in effect prior to November 15, 1990, section 193 prohibits a SIP revision without a showing that it would result in equivalent or greater emission reductions. For purposes of avoiding repetition, we do not mention section 193 in each of the examples discussed in this section. However, States remain obligated to make the section 193 demonstration for any revision to a requirement that applied prior to November 15, 1990. 27 A maintenance plan, which is a SIP revision required under sections 107( d)( 3)( E) and 175A as a prerequisite for redesignating a nonattainment area to attainment, must provide for maintenance of the NAAQS for 10 years after redesignation and must contain contingency measures to promptly correct any violation of the standard that occurs after redesignation. Contingency measures must provide for implementation of all measures that were contained in the SIP for the area before redesignation of the area as an attainment area. NAAQS. 26 For control measures that the State has not yet adopted, the State remains obligated to adopt and submit such controls. And, once adopted into the approved SIP, the State could not modify or remove that measure except to the extent that it could modify or remove that measure for purposes of the 1 hour standard and subject to a demonstration under section 110( l) that modification or removal would not interfere with attainment or maintenance of the 8 hour ozone NAAQS. This obligation would apply only to the part of the 8 hour ozone nonattainment area that was designated nonattainment for the 1 hour ozone NAAQS. To illustrate what we are proposing, we provide the following example, which will also be used in the next section discussing discretionary control measures. Assume an area is classified as marginal for the 8 hour ozone NAAQS and was classified as serious for the 1 hour ozone NAAQS at the time of the 8 hour designations. Also assume RACT for a particular source category is considered an 80 percent reduction in uncontrolled emissions of VOCs at all major sources. In its 1 hour SIP, the State chose to require emissions reductions of 90 percent and the RACT requirement applied to all major stationary sources, which for a serious area includes all sources that emit greater than 50 tons/ year VOCs. After designation for the 8 hour standard, the State wants to modify this RACT requirement to require only 80 percent reduction in emissions and to limit the requirement to sources that emit 100 tons/ year of VOCs. Because the State could not have modified the RACT obligation to apply only to sources emitting 100 tons/ year or more of VOCs for purposes of the 1 hour standard, the State could not change the source cutoff from 50 tons/ year for purposes of the 8 hour standard. The 50 tons/ year major source threshold would continue to be an `` applicable requirement'' for the part of the area that was designated nonattainment for the 1 hour NAAQS. The State, however, could apply RACT only to sources that emit 100 tons/ year or more for any portion of the area that was not a part of the 1 hour serious nonattainment area. While the 80 percent control level would be considered mandatory, the 90 percent control level was not mandated by the CAA and thus is considered a `` discretionary control measure.'' We address below how modification of a discretionary control measure would be treated under this proposal. The same principle would hold true for control measures in a maintenance plan for an area that was designated nonattainment for the 1 hour standard at or after November 15, 1990 and that was subsequently redesignated to attainment under the 1 hour ozone standard. 27 Subpart 2 control measures ( including those that had been shifted to contingency measures) could not be removed from the SIP and could be modified only to the extent that they could have been modified if the 1 hour standard remained in effect for the area. If the State had previously shifted a mandated subpart 2 control measure to its contingency plan, we would not require that the area begin to implement that measure as part of its 8 hour implementation plan, if the measure was not required under its classification under the 8 hour standard. However, the measure would need to remain as a contingency measure for the area and could not be removed from the SIP. ( ii) Discretionary control measures. Many approved SIPs contain control measures that are not specified under subpart 2 for the area, but that the State chose to adopt as part of the demonstration of attainment or part of the ROP requirement for the 1 hour NAAQS. For these kinds of measures, we are proposing that no additional burden be placed on the State. For purposes of the 1 hour standard, States may currently revise or remove those requirements so long as they make a demonstration consistent with section 110( l) that such removal or modification would not interfere with attainment of or progress toward the 1 hour ozone NAAQS ( or any other applicable requirement of the CAA). Under the CAA, for purposes of the 8 hour standard, the same obligation would apply except the State would need to make the demonstration with respect to the 8 hour standard instead of the 1 hour standard. In the example above, if a State wants to revise the control level for certain sources from 90 percent control to 80 percent control, the State may do so because subpart 2 mandated RACT in this example is an 80 percent level of control rather than a 90 percent control level. The 90 percent control level thus was `` discretionary.'' We are proposing that no additional burden, beyond the statutory section 110( l) test, be placed on the State to alter this requirement. Thus, to revise the control level, the State would need to demonstrate, consistent with section 110( l), that the lower control level of 80 percent would not interfere with attainment of the 8 hour standard or RFP for the 8 hour standard ( or any other applicable requirement of the CAA). A number of SIPs contain enforceable commitments to adopt additional discretionary emission reduction control measures in the future. The State remains obligated to these commitments to the same extent as if they were adopted measures. The only way a State may modify or remove such a commitment is through a demonstration under section 110( l). ( iii) Measures to address growth. For 1 hour nonattainment NSR requirements in place at the time an area is designated nonattainment for the 8 hour standard, we are proposing that the major source applicability cut offs and offset ratios continue to apply to the extent the area has a higher classification for the 1 hour standard than for the 8 hour standard. We see no rationale under the CAA   given the Congressional intent for areas `` classified by operation of law''   why the existing NSR requirements should not remain `` applicable requirements'' for the portion of the 8 hour nonattainment area that was classified higher for the 1 hour standard. However, if an area has been redesignated to attainment for the 1 hour standard as of the date of designation for the 8 hour standard, and is thus no longer implementing the nonattainment NSR program for its previous 1 hour ozone classification, it would not need to revert back to the program it had for purposes of the 1 hour standard. For example, if an area is classified moderate under the 8 hour standard, but was classified severe under the 1 hour standard at the time of the 8 hour designations, the portion of the 8 hour nonattainment area that was classified severe for the 1 hour standard would remain subject to an offset ratio of 1.3: 1 and a major source threshold of 25 tons/ year. The remaining portions of the 8 hour area would be subject to the offset ratio for moderate areas ( 1.15: 1)

VerDate Jan< 31> 2003 20: 45 May 30, 2003 Jkt 200001 PO 00000 Frm 00021 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 02JNP2. SGM 02JNP2 32822 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 28 For instance, an area with a past due obligation to revise its SIP to develop a new attainment demonstration for the 1 hour standard could possibly submit such a revision within the next year or so ( 2004   2005), with emissions reductions beginning to occur likely within 1 or 2 years ( by 2006   2007). If this area were now only required to address the 8 hour standard, it would not have to submit a new attainment demonstration until 2007, as proposed elsewhere in this proposed rule, with emissions reductions occurring from that demonstration likely a year or more after 2007, which is several years after the time period possible by fulfilling the existing obligation. and the moderate area major source threshold ( 100 tons/ year). If the severe 1 hour area had been redesignated to attainment prior to the time of the 8 hour designations and was subject to PSD rather than NSR, however, the entire designated area for the 8 hour standard would be subject to the offset ratio and major source threshold for a moderate area. ( iv) Planning SIPs. Most areas that are nonattainment under the 1 hour standard have already adopted attainment and ROP plans. However, there are a few areas that remain obligated to submit attainment or ROP SIPs. We have outlined our proposal for addressing ROP elsewhere in this proposed rulemaking and will not repeat those options in detail here. In general, however, we are proposing that States are still obligated to address separately ROP that does not overlap with ROP obligations for the 8 hour NAAQS. Where the ROP obligations overlap, the area need not separately address ROP for the 1 hour standard. For ROP already adopted into the SIP, we are proposing that the State may remove or revise control measures needed to meet the ROP milestone if such control measures were `` discretionary,'' as discussed above. But, a State could not revise or remove control measures if they would interfere with meeting the ROP goals. In other words, the CAA mandated ROP emission reduction targets that applied for the 1 hour standard would still have to be met, but discretionary measures adopted to meet those targets could be modified, if the State makes the necessary showing under section 110( l). With respect to attainment demonstrations, we are soliciting comment on the interpretation we should take for the two scenarios we believe exist. The first scenario would be a State that does not have a fully approved attainment demonstration under the 1 hour standard because it has failed to act in a timely manner. The second scenario is an area subject to an obligation to submit an attainment demonstration under the 1 hour standard in the future. In general, since attainment demonstrations are planning SIPs, and States must now be planning to attain the 8 hour NAAQS, one might argue that Congress could not have intended areas to continue to plan to meet a standard that EPA no longer considers to be adequately protective of public health. This is especially true when to do so would divert resources from planning to meet the 8 hour standard. In contrast, one could argue that allowing areas to bypass planning obligations under the 1 hour standard will delay attainment of health protection since States have more time to submit attainment plans under the 8 hour standard than under the 1 hour standard. 28 There are some cases where a State does not have a fully approved attainment demonstration because it has failed to act in a timely manner. To lift that obligation from those areas simply because EPA had adopted a more stringent NAAQS could result in a more preferential treatment of those areas over areas that did adopt fullyapprovable attainment demonstrations with the requisite controls. For example, if an area has adopted controls to demonstrate attainment of the 1 hour standard, it may not remove those controls from its SIP without a demonstration that those controls would not interfere with attainment or progress toward the 8 hour standard ( or any other applicable requirement of the CAA). Such an area likely would have more stringent control obligations in place than the area without a fullyapproved attainment SIP and would have a high hurdle to removing or altering those controls. In contrast, the area without a fully approved attainment demonstration would likely make slower progress toward attaining the 8 hour NAAQS ( at least in the shortterm because it does not have all necessary measures in its approved SIP and   without a clear requirement to the contrary   would be under no pressure to have those measures in its SIP until its attainment demonstration for the 8 hour NAAQS is due. For the following examples of actual situations, we are soliciting comment on whether to retain the obligation to develop a 1 hour attainment demonstration or to determine that the requirement no longer applies. In addition, we are soliciting comment on two alternatives that might address some of the inequities, while not subjecting States to the more complicated planning associated with developing two separate attainment demonstrations ( one under the 1 hour standard and another under the 8 hour standard). Under the first alternative approach, areas that are subject to an obligation to submit a new or revised attainment demonstration would instead be required to submit a SIP revision that would obtain an advance increment of emissions reductions toward attainment of the 8 hour ozone standard within a specified, short term timeframe. For example, we could require these areas to submit within 1 year of promulgation of the implementation rule a plan revision that requires a specific percentage of emissions reductions ( e. g., 5 percent or 10 percent) from the baseline emissions for the 8 hour NAAQS. In addition, we could require that the measures be implemented in the near term, e. g., no more than 2 years after the required submission date. Under the second alternative, areas with an outstanding obligation to submit a 1 hour attainment demonstration would be required to submit their 8 hour ozone attainment demonstration early in lieu of being required to submit a 1 hour attainment demonstration. Submittal of an early 8 hour attainment demonstration would likely prevent the inequity of areas avoiding emissions reductions in the short term, as described in the preceding footnote.   Example 1: An area has not met in part or in full a past due obligation to submit a 1 hour attainment demonstration required because EPA reclassified the area to a higher classification after it failed to attain the 1 hour standard by its attainment date.   Example 2: An area is subject to an obligation to submit an attainment demonstration in the future, as is the case where EPA applied its attainment date extension policy rather than reclassifying an area that failed to meet its attainment date and EPA has subsequently reclassified the area or soon will do so, because of the courts' rejection of the extension policy. ( v) Other obligations. A number of areas have SIPs that contain commitments to review their progress toward attaining the 1 hour NAAQS ( in some cases, these are called `` midcourse reviews''). These SIP approved commitments are enforceable, and EPA and the States can use these mid course reviews to ensure that progress is being made consistent with the analysis in the area's 1 hour attainment demonstration. The State remains obligated to honor these commitments. b. What obligations continue to apply for areas that are designated attainment under the 8 hour standard and that were designated nonattainment for the 1 hour standard on or after November 15, 1990?

VerDate Jan< 31> 2003 20: 45 May 30, 2003 Jkt 200001 PO 00000 Frm 00022 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 02JNP2. SGM 02JNP2 32823 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 29 Memorandum of May 10, 1995, `` RFP, Attainment Demonstration, and Related Requirements for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air Quality Standard,'' from John S. Seitz, Director, Office of Air Quality Planning and Standards. Available at: http:// www. epa. gov/ ttn/ oarpg/ t1/ memoranda/ clean15. pdf. 30 Areas that are designated attainment under the 8 hour standard and that were designated nonattainment for the 1 hour standard on or after November 15, 1990. 31 Based on ambient ozone data for the period 1998 to 2000 for the hypothetical nonattainment areas, we identified approximately 20 areas that are currently designated nonattainment under the 1 hour standard but that will likely be designated attainment under the 8 hour standard). ( i) Obligations related to NSR. Areas that are in attainment for the 8 hour ozone NAAQS would not be subject to nonattainment NSR for the 8 hour standard. We believe it makes little sense to require nonattainment NSR to continue simply because these areas were previously designated nonattainment for the 1 hour standard. Thus, we propose that these areas would be subject to PSD and would not be subject to the nonattainment NSR offset and major source thresholds that applied under their classification for the 1 hour standard. ( ii) Obligations related to planning obligations other than maintenance plans. With respect to SIP planning obligations ( ROP plans and attainment demonstrations), we are proposing that the SIP planning requirements that applied for purposes of the 1 hour standard would not continue to apply to these areas as long as they continue to maintain the 8 hour NAAQS. Thus, even if these areas have failed to meet ROP or attainment plan obligations for the 1 hour standard, they would not be required to meet them for so long as they remain in attainment with the 8 hour standard. ( As discussed below, however, we are proposing that such areas develop a maintenance plan under section 110( a)( 1).) This approach is consistent with EPA's `` Clean Data Policy'' 29 under the 1 hour standard, which provides for these planning obligations to be stayed once an area attains the standard, but only for so long as an area remains in attainment of the 1 hour standard. If such an area violates the 8 hour NAAQS prior to having an approved maintenance plan in effect ( as proposed below to be required for these areas)   those obligations would once again apply in the same manner that they apply in areas designated nonattainment for the 8 hour ozone NAAQS. ( iii) Obligations related to control measures and maintenance plans. The issue of what obligation remains with respect to `` non discretionary'' control measures approved into the SIP or required under the CAA is more difficult. Our approach for these is based on the CAA's requirements for maintenance plans. ( Consistent with our proposal for discretionary control measures in areas designated nonattainment for the 8 hour NAAQS, we would permit areas to modify discretionary measures for areas designated attainment for the 8 hour NAAQS so long as section 110( l) is met.) If EPA determined that these areas 30 were required to develop maintenance plans pursuant to section 175A, then they would need to keep ( or to adopt and then keep) those control measures in the SIP, though they could shift them to contingency measures. Some commenters urged us to require all areas previously designated nonattainment for the 1 hour NAAQS to retain ( where the area had been redesignated to attainment) or develop ( where the area was still designated nonattainment for the 1 hour NAAQS at the time of 8 hour designations) a section 175A maintenance plan. However, we do not believe that a section 175A maintenance plan is mandated or is necessary for areas initially designated attainment for the 8 hour NAAQS. Section 175A maintenance plans are required for areas that were designated nonattainment for a NAAQS and then subsequently redesignated to attainment for that NAAQS. The areas addressed in this section have never been designated nonattainment for the 8 hour ozone NAAQS. Moreover, they have a maintenance obligation that already applies: Section 110( a)( 1) requires areas to demonstrate how they will attain and maintain a new or revised NAAQS. 31 Therefore, we do not believe that Congress mandated that such areas be subject to the section 175A maintenance plan obligation for the 8 hour NAAQS, nor do we believe it is necessary to interpret that provision to apply. For an area that was never redesignated to attainment for the 1 hour standard and never had a section 175A maintenance plan, we are proposing that if the area wants to revise any part of its current 1 hour SIP, the area must first adopt and submit a maintenance plan consistent with section 110( a)( 1). Moreover, even if the State elects not to revise its existing SIP, we are proposing that the area submit a section 110( a)( 1) maintenance plan within 3 years of designation as attainment for the 8 hour NAAQS. We believe that the maintenance plan should provide for continued maintenance of the 8 hour standard for 10 years following designation for the 8 hour NAAQS and should include contingency measures. Unlike section 175A, section 110( a)( 1) does not address contingency measures and thus does not specify that mandated controls in the existing SIP must be shifted to contingency measures if modified or removed. We are proposing that if the State adopts sufficient contingency measures, and if it makes a demonstration consistent with section 110( 1), it can modify or remove control measures in the approved SIP. We are also proposing that areas with approved 1 hour section 175A maintenance plans will be able to modify those maintenance plans consistent with their obligation to have a maintenance plan for the 8 hour NAAQS under section 110( a)( 1). For these areas, we are proposing that the following obligations could be removed from the SIP if the State demonstrates that the area will maintain the 8 hour standard consistent with section 110( a)( 1) for a period of 10 years following designation for the 8 hour NAAQS:   the obligation to submit a maintenance plan for the 1 hour standard 8 years after approval of their initial 1 hour maintenance plan;   the requirement to implement contingency measures upon a violation of the 1 hour ozone standard; however, such areas would need contingency measures as part of a maintenance SIP for the 8 hour NAAQS and States could elect to modify the existing contingency measure trigger so that it is based on a violation or exceedance of the 8 hour standard. ( iv) Obligations related to conformity. For all areas designated attainment for the 8 hour ozone NAAQS, the requirement to demonstrate conformity to the 1 hour standard would no longer apply once the 1 hour standard is revoked in whole or determined not to apply for that purpose under a partial revocation of the 1 hour standard ( as proposed below). Under section 176 of the CAA, conformity applies to areas designated nonattainment or subject to the requirement to develop a maintenance plan pursuant to section 175A. Areas designated attainment for the 8 hour standard would no longer be subject to the obligation to demonstrate conformity to the 1 hour emissions budgets in an approved attainment or ROP SIP or an approved section 175A maintenance plan for the 1 hour standard. The reason for this is that, under the options proposed below, they would either no longer be designated nonattainment for the 1 hour standard or the nonattainment designation would VerDate Jan< 31> 2003 20: 45 May 30, 2003 Jkt 200001 PO 00000 Frm 00023 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 02JNP2. SGM 02JNP2 32824 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 32 For instance, upon discussion between EPA and States, some States have in the past voluntarily agreed to revise their SIPs when it appears that the SIP is inadequate to attain or maintain the NAAQS. no longer apply for purposes of conformity, and the area would no longer be required to develop a maintenance plan under section 175A for purposes of the 1 hour standard. c. What happens with respect to the NOX SIP Call? Section 110( a)( 2)( D) of the CAA establishes requirements for States to address the problem of transport. It requires a SIP to prohibit the State's sources from emitting air pollutants in amounts that will contribute significantly to nonattainment, or interfere with maintenance, in one or more downwind States. As noted above in section I of this proposal, in 1998, EPA called on 22 States and the District of Columbia (`` States'') to reduce emissions of NOX consistent with budgets set for each State. ( 63 FR 57356, October 27, 1998). Furthermore, EPA granted petitions under section 126 and thus directly regulated certain sources of NOX emissions in many of the States covered by the NOX SIP Call. ( 65 FR 2674, January 18, 2000). Below, we refer to these collectively as the `` NOX transport rules.'' The NOX transport rules were designed to prevent upwind NOX emissions from contributing to nonattainment in a downwind area for both the 1 hour and 8 hour ozone NAAQS. EPA, however, stayed the 8 hour basis for the NOX transport rules in response to the extensive and extended litigation ( described above) that occurred concerning the establishment of the 8 hour ozone standard. We intend to take rulemaking action to lift the stay of the 8 hour basis for these rules. We believe it important to ensure that the transition to the 8 hour standard does not have the effect of jeopardizing the controls required to be in place under the NOX transport rules. Regardless of whether EPA lifts the stay of the 8 hour basis for these rules, the controls required have substantial benefits for reductions of both 1 hour and 8 hour ozone levels. We believe that relaxing such controls would be contrary to the principles we identified above for an effective transition. Consequently, we are proposing that States must continue to adhere to the emission budgets established by the NOX SIP Call after the 1 hour standard is revoked in whole or in part, as proposed below. Similarly, we are not proposing to revoke or modify its section 126 regulation. However, States retain the authority to revise the control obligations they have established for specific sources or source categories, if they continue to meet their SIP Call budgets. In addition, consistent with section 110( l), the States would need to demonstrate that the modification in control obligations would not interfere with attainment of or progress toward the 8 hour NAAQS or with any other applicable requirement of the CAA. d. What additional obligations under part D of title I of the CAA would not continue to apply after the 1 hour standard is revoked in whole or in part? As discussed elsewhere in this proposal, we are proposing that areas would not be obligated to continue to demonstrate conformity for the 1 hour standard once the 1 year grace period for application of conformity for the 8 hour standard has elapsed. In addition, EPA would not take certain actions with respect to the 1 hour ozone NAAQS. First, we are proposing that we would no longer make findings of failure to attain the 1 hour standard and, therefore, would not reclassify areas to a higher classification for the 1 hour standard based on a failure to meet the 1 hour standard. We believe that areas should focus their resources on attainment of the 8 hour standard and that it would be counterproductive to establish new obligations for States with respect to the 1 hour standard after they have begun planning for the 8 hour standard. ( Moreover, we note that the attainment dates for marginal, moderate and serious areas have passed and the CAA does not provide for reclassification of severe areas in the absence of a request by the State.) EPA must ensure that areas are continuing to make progress toward cleaner air. If EPA determines that a State is not adequately implementing an approved SIP and achieving air quality reductions in a timely manner, EPA may enter into an informal process to ensure the State takes any necessary action 32 or, alternatively, may take more formal action such as making a finding of failure to implement the SIP or issuing a SIP Call to require action. As noted above, many areas have SIPs that contain commitments to review their progress toward attaining the 1 hour NAAQS (`` mid course review''). These SIP approved commitments are enforceable, and EPA and the States can use these mid course reviews to ensure that progress is being made consistent with the analysis in the area's 1 hour attainment demonstration. 4. Does the Requirement for Continued Implementation of the Obligations Addressed Above Expire at Some Point?

The SIP obligations under the 1 hour standard for an area's classification under the 1 hour standard would not expire after the 1 hour standard is revoked in whole or in part. However, for those mandatory requirements that continue to apply to an area due to the area's classification for the 1 hour NAAQS, we are proposing two options for when the State may move the mandatory measures to a maintenance plan in the SIP and treat them as contingency measures: a. Option 1. When the area achieves the level of the 1 hour ozone standard ( even if the area has not yet attained the 8 hour standard). The rationale for this option is that Congress intended an area to continue to implement these obligations until it attained the 1 hour standard, at which time the area would be able to discontinue implementation upon a showing of continued maintenance. However, in such a case, the area could not remove the measures from the SIP; rather, it could shift such measures to contingency measures. b. Option 2. When the area attains the 8 hour standard and is designated attainment ( regardless of when, if ever, the area attains the 1 hour standard). The rationale for this option is that the 8 hour standard is the standard that EPA has determined will protect public health and the environment. Once an area demonstrates it has met and can maintain the health protective standard, it would be appropriate to remove or modify those controls. It should be noted that either of these two options could apply for either of the transition options, discussed in section 2, above. It should also be noted that the SIP obligations would include not only requirements in the 1 hour nonattainment area but also for the SIP in general, including the SIP requirements to address the NOX SIP Call. We are proposing under the antibacksliding provision in section 110( l) to require that the SIP retain the NOX SIP Call controls that have already been approved. In the absence of appropriate regional scale modeling that would demonstrate that changing a SIP Call control to a contingency measure would not interfere with attainment or maintenance in any other State, the State could not shift SIP Call control strategies to contingency measures. The State would, of course, also have to submit a demonstration that the SIP change would not interfere with attainment or reasonable further VerDate Jan< 31> 2003 20: 45 May 30, 2003 Jkt 200001 PO 00000 Frm 00024 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 02JNP2. SGM 02JNP2 32825 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules progress for any air quality standard or other applicable requirement of the Act.

5. How Will EPA Ensure That the Public Knows Which Areas Must Continue Provisions Under the 1 Hour SIPs if EPA Revokes the 1 Hour Standard?

EPA would promulgate regulatory provisions identifying the obligations to which areas remain subject, and identifying the areas. If EPA ultimately chooses to revoke the 1 hour standard and the associated designations and classifications shortly after designations for the 8 hour standard ( as proposed below), EPA would ensure that there are provisions in the Code of Federal Regulations ( CFR) that continue to define the boundaries for those areas. The reason for this is that boundaries for 8 hour ozone nonattainment areas may not be coextensive with those for the 1 hour standard, and EPA would need to make clear which areas or portions of areas must continue to implement obligations due to their 1 hour classification.

D. Should Prescribed Requirements of Subpart 2 Apply in all 8 Hour Nonattainment Areas Classified Under Subpart 2, or Is There Flexibility in Application in Certain Narrowly Defined Circumstances?

1. Background The 1990 CAA Amendments overhauled the CAA's requirements for ozone nonattainment areas and, in doing so, specified new mandatory measures for many areas. The new approach embodied in subpart 2 was to classify areas according to the severity of their pollution. Areas with more serious ozone pollution were allowed more time to meet the standard   but were required to adopt more numerous and stringent measures depending on their classification. Congressional proponents of this approach argued that specifying mandatory measures in the statute was necessary because States and EPA, prior to 1990, had failed to ensure that SIPs achieve steady reasonable progress in reducing emissions or to require readily available measures that were cost effective and needed to meet the standard. Mandatory subpart 2 requirements for moderate and higher classified areas include, for example, specific ROP requirements ( including a 15 percent VOC reduction for moderate and above areas), basic I/ M programs, a requirement that sources subject to NSR obtain emissions offsets at a ratio of 1.15 to 1, and RACT for NOX sources as well as VOC sources. Serious and severe areas are subject to additional measures such as further ROP requirements, applicability of NSR to smaller sources, enhanced I/ M, and applicability of RACT to smaller sources. ( Appendix A presents a summary comparison of measures under subparts 1 and 2.) For the proposed 8 hour ozone implementation strategy, EPA has examined the issue of mandatory measures from both legal and policy standpoints. EPA's legal view is guided by the Supreme Court decision. The Court held that Congress drastically limited EPA's discretion on whether the mandatory requirements of subpart 2 will apply to 8 hour areas by concluding that the classification scheme of subpart 2 applied for purposes of a revised ozone NAAQS. ATA I, 175 F3d at 1048   1050. As discussed elsewhere, the Supreme Court decision states that subpart 2 provides for classification of areas under the 8 hour standard. With respect to the requirements of subpart 2, the Supreme Court stated, `` The principal distinction between Subpart 1 and Subpart 2 is that the latter eliminates regulatory discretion that the former allowed.'' Whitman 121 S. Ct. at 918. The Court went on to state, `` Whereas Subpart 1 gives EPA considerable discretion to shape nonattainment programs, Subpart 2 prescribes large parts of them by law.'' Id. The Court also stated, `` EPA may not construe the statute in a way that completely nullifies textually applicable provisions meant to limit its discretion.'' Id. 918   919. Once an area is classified under subpart 2, the subpart 2 requirements apply. EPA may have some limited ability to change or limit subpart 2 controls, consistent with the statutory language, but EPA cannot broadly waive those requirements. For example, EPA may have some flexibility to modify regulatory requirements for programs such as NSR ( discussed elsewhere in this proposed rulemaking). Furthermore, subpart 2 provides discretion to EPA in implementing certain provisions already, such as waivers for stage II vapor recovery, NOX RACT and NOX NSR. In addition, case law may provide EPA with some flexibility to waive federally applicable requirements on a case by case basis where application of those requirements would produce an `` absurd result.'' With respect to policy considerations, some commenters at public meetings or in written submissions to EPA have expressed the view that mandatory measures are needed to ensure actions are taken, but a number of commenters have raised concerns. These include whether mandated VOC controls will be appropriate for all areas in the future, and whether mandatory measures are appropriate in areas projected to attain in the near term. A number of commenters recommended that EPA allow for flexibility in implementing the 8 hour ozone standard and not require mandatory measures, such as local VOC measures, where they would not be very effective in achieving attainment of the standard. In many cases, particularly for areas that would be new nonattainment areas under the 8 hour standard, region wide NOX controls and national controls on mobile sources are predicted to greatly reduce the areas' ozone levels and to bring many into attainment without additional local emission controls. Although a number of comments were received on the issue of flexibility, many commenters on this issue took the position that they would prefer areas to be classified under subpart 1 rather than subpart 2. Some commenters did recommend that EPA make the argument that new information about the relative benefits of NOX and VOC control would lead to allowing more tailored controls for a number of areas, rather than the one size fits all approach of subpart 2. However, commenters did not suggest how the CAA could be interpreted to allow the flexibility they were advocating for the mandatory requirements of subpart 2. Other commenters argued that the subpart 2 measures are mandatory under the CAA for areas classified under subpart 2 and that the CAA does not provide flexibility to waive those requirements. Regarding the VOC/ NOX issue, we observe that scientific understanding of ozone pollution and the impact of control strategies has improved over time. Prior to 1990, the main focus of ozone control strategies was VOC control. Since then, scientific studies have more clearly recognized the role of NOX, biogenic emissions, and transport of ozone and NOX in ozone nonattainment. In response, EPA's ozone strategy for the 1 hour standard evolved to put greater emphasis on controlling NOX in addition to VOC and to require control of NOX emissions that contribute to interstate ozone problems. We recognize that the relative effectiveness of VOC and NOX controls will vary from area to area, depending significantly upon VOC/ NOX ratios in the atmosphere. Current scientific information shows that VOC reductions will reduce ozone in urban areas and in other areas where there is excess NOX available for reaction. Ozone levels in areas that are less urban and have lower NOX emissions, or that have high biogenic VOC levels, may be more sensitive to NOX control and less VerDate Jan< 31> 2003 20: 45 May 30, 2003 Jkt 200001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 02JNP2. SGM 02JNP2 32826 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 33 Additional Options Considered for `` Proposed Rule to Implement the 8 Hour Ozone National Ambient Air Quality Standard.'' U. S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Research Triangle Park, NC. March 2003. sensitive to VOC control. Because ozone formation is greatly affected by meteorological conditions and source/ receptor orientation, ozone formation may be limited by either VOC or NOX concentrations at different times and locations within the same area. In order to support the approach proposed below, we solicit relevant technical information on this issue from States and others.

2. Approach Being Proposed In line with the legal interpretation above, we are proposing that subpart 2 requirements would apply to each area classified under subpart 2 consistent with the area's classification. However, today's proposal contains several features intended to provide States with flexibility on the measures required to be included in SIPs for 8 hour areas. First, as explained in the section on classifications above, proposed classification option 2 would result in a number of areas being classified under subpart 1 rather than under subpart 2. Second, for both classification options, we are proposing an incentive feature that would allow areas to qualify for a lower classification with fewer mandatory requirements if the area could show it will meet the standard by the deadline for the lower classification. This would, for example, allow any area projected to attain by 2007 based on existing Federal measures and any State or local measures approved into the SIP to be classified as marginal and to avoid subpart 2 mandatory measures   some of which may be significant   that apply to higher classifications. Under either of our proposed classification frameworks, a majority of potential 8 hour areas would not be subject to significant subpart 2 mandatory measures because they would be classified marginal or lower. Based on our analysis of hypothetical nonattainment areas, there would be fewer than 10 potential 8 hour nonattainment areas classified `` serious'' or above, and these areas already are implementing requirements applicable to serious or above areas for the 1 hour standard. Therefore, the main impact of subpart 2 mandatory measures in 8 hour implementation would be on ( 1) areas that are classified as moderate, and did not have to meet moderate or above requirements for the 1 hour standard, ( 2) areas classified as moderate or above that would be subject to ROP requirements for the 8 hour NAAQS, and ( 3) new counties or areas included as part of a serious or higher classified nonattainment area. As a third flexibility mechanism, we are proposing to consider allowing caseby case waivers when sufficient evidence is presented that application of a specific requirement in a particular area would cause absurd results. Evidence of an absurd result might, for example, include a modeled demonstration that future VOC reductions required under subpart 2 for a particular area would actually cause ozone to increase more than a de minimis amount and therefore increase the amount of NOX emissions reductions needed for the attainment demonstration. Such a showing would also have to account for the potential benefits of the mandated controls in downwind areas in determining whether on the whole the application of the subpart 2 measure would produce an absurd result. We believe that absurd results will happen only rarely in those cases where application of the requirement in that area would thwart the intent of Congress in enacting the relevant provisions of the CAA. In such cases, EPA may be able to provide limited relief to the area, but only to the degree needed to protect Congressional intent. For example, we believe that the purpose of the 15 percent VOC ROP requirement is to ensure that areas make progress cleaning up their air and moving toward their goal of attainment in the first 6 years following the emissions baseline year. If an area could demonstrate that reductions in VOC would provide no progress toward attaining the standard, EPA may be allowed to interpret the statute to allow for reduction in NOX emissions instead. EPA could not, however, simply waive the requirement for the area to meet the ROP goals of the CAA. Moreover, it would not be sufficient for the area to show that VOC reductions would be less beneficial than NOX reductions. While one might contend that such a result is not the most logical result, it is not absurd. The above example is a simplistic example   application of the absurd results test in any specific situation would likely be more complex. In any specific situation, we would need to consider all of the facts in light of various statutory provisions. For example, we would need to consider that another goal of the SIP provisions in the CAA is to mitigate transport of ozone ( and ozone precursors). Therefore, in determining whether there is an `` absurd result,'' we would not only need to consider the implications for the specific area asserting an absurd result, but also the effects on downwind areas. A State attempting an absurd results demonstration would have to work very closely with EPA to ensure that the demonstration passes the highest standards of technical credibility. If we had information that the agency believes supports an absurd results showing, we would make that information available to the State. The State would, of course, have to subject this demonstration to the same public process carried out for the SIP submission itself prior to submission to EPA of the SIP containing the demonstration. In no way would this waiver exempt an area from the requirement to demonstrate attainment by the attainment date or to demonstrate RFP toward attainment consistent with the area's classification. We would have to review the State's demonstration as to whether the result is `` absurd'' in light of the particular statutory requirement at issue and within the context of the statute as a whole. Simply because a State may demonstrate an absurd result for purposes of meeting one statutory provision, such as the requirement for a 15 percent VOC reduction within 6 years after a base year, this does not imply that some other provision of the CAA that requires VOC reductions is automatically considered `` absurd.''

3. Other Approaches Considered We considered a number of other options for allowing additional flexibility for subpart 2 requirements. These other options that were considered but are not being proposed are described in a separate document available in the docket. 33 E. What Is the Required Timeframe for Obtaining Emissions Reductions To Ensure Attainment by the Attainment Date?

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

VerDate Jan< 31> 2003 20: 45 May 30, 2003 Jkt 200001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 02JNP2. SGM 02JNP2 32827 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 34 As a result of court actions, certain circumstances upon which the Section 126 Rule withdrawal provision was based have changed. The compliance dates for the Section 126 Rule and the NOX SIP Call have been delayed and the NOX SIP Call has been divided into two phases. The EPA recently issued a proposed rulemaking to update the withdrawal provision so that it will operate appropriately under these new circumstances ( 68 FR 16644, April 4, 2003). 35 The Agency stayed the 8 hour basis for both rules in response to the extensive and extended litigation that occurred concerning the establishment of the 8 hour ozone standard. ( 65 FR 56245, September 18, 2000 and 65 FR 2674, January 18, 2000). Recently, however, the Administrator signed a final rule on the UV   B issue and reaffirmed the 8 hour ozone standard ( 68 FR 614, January 6, 2003), which was remanded to EPA in ATA I, 175 F. 3d 1027. Having now reaffirmed the 8 hour standard, the Agency plans to take action in the near future to reinstate the 8 hour bases for both the NOX SIP Call and the Section 126 Rule. Such action would provide the initial basis for dealing with ozone transport as part of the implementation of the 8 hour standard. States should be aware of the consequences of failing to implement the control measures necessary for attainment sufficiently far in advance of the attainment date. For areas covered under subpart 2, section 181( a)( 5) of the CAA does allow for up to two 1 year attainment date extensions in certain circumstances. We are proposing how those extension provisions would be implemented elsewhere in this proposal under the discussion of attainment dates. To obtain the first of the 1 year extensions, the CAA basically requires that the area be meeting the level of the standard in the attainment year itself, even if the area has not actually attained considering the most recent 3 years of data. Thus, the States should ensure that the emissions reductions be implemented to ensure that ozone levels for the ozone season preceding the attainment date are below the level of the standard. If an area does not meet the eligibility requirements for a 1 year extension ( as proposed elsewhere in this rulemaking) in the attainment year, then the area would not be eligible for an attainment date extension, and EPA would have an obligation to reclassify the area to a higher classification (`` bump up''). A marginal area with an attainment date 3 years after its nonattainment designation that fails to attain would be subject to bump up to at least moderate, and would then have to prepare a plan to attain within 3 years afterward ( 6 years after their nonattainment designation). There is further discussion of this situation as it relates to the 1 hour ozone standard in the General Preamble of April 16, 1992 ( 57 FR 13498, 13506); this discussion may have some applicability to the 8 hour standard. Areas covered under subpart 1 are also able to obtain up to two 1 year extensions of the attainment date ( see section 172( a)( 2)( C)). There is no provision for bump up in classification similar to that under subpart 2. However, if an area fails to attain, section 179 of the CAA provides that EPA publish a finding that the area failed to attain. The State then must submit within 1 year after that publication a revision to the SIP that provides for attainment within the time provided under section 179. Section 179 also provides that the SIP revision must also include any additional measures that EPA may prescribe. Elsewhere in this notice of proposed rulemaking, we also refer to requiring that emission reductions needed for attainment need to be implemented by the attainment date. By this, we mean that they must be implemented by the beginning of the ozone season prior to the attainment date. In other words, if the attainment date is April 15, 2010, the reductions would need to be implemented by the beginning of the ozone season in the previous year ( 2009). Ozone seasons are defined in 40 CFR Part 58, Appendix D; for many States, the ozone season starts March 1 or April 1.

F. How Will EPA Address Long Range Transport of Ground Level Ozone and Its Precursors When Implementing the 8 Hour Ozone Standard?

1. Background Although much progress has been made over the last decade to improve air quality, many States contain areas that have not yet attained the 1 hour ozone standard and/ or that are violating the 8 hour ozone standard. Some of these areas are significantly affected by interstate ozone transport from upwind areas. Wind currents can transport ozone and NOX, a primary precursor to ozone, long distances, affecting multiple States downwind of a source area. EPA recognizes that this type of interstate transport can make it difficult   or impossible   for some States to meet their attainment deadlines solely by regulating sources within their own boundaries. The 1990 Amendments to the CAA reflect Congress' awareness that ozone is a regional, and not solely a local problem. Section 110( a)( 2)( D) provides an important tool for addressing the problem of transport. It provides that a SIP must contain adequate provisions to prohibit sources in a State from emitting air pollutants in amounts that contribute significantly to nonattainment, or interfere with maintenance, in one or more downwind States. Section 110( k)( 5) authorizes EPA to find that a SIP is substantially inadequate to meet any CAA requirement, including the requirements of section 110( a)( 2)( d). If EPA makes such a finding, it must require the State to submit, within a specified period, a SIP revision to correct the inadequacy. The CAA further addresses interstate transport of pollution in section 126, which authorizes any State to petition EPA for a finding designed to protect the State from significant upwind sources of air pollutants from other States. In the past several years, EPA has conducted two rulemakings to control interstate ozone transport in the eastern U. S. In 1998, EPA issued the NOX SIP Call, which requires certain States in the eastern U. S. to meet statewide NOX emissions budgets ( 63 FR 57356, October 27, 1998.) State programs to implement the rule have focused on reducing emissions from electric power generators and large industrial emitters. In addition, in response to petitions submitted by several northeastern States under section 126, EPA issued a separate rule ( usually known as the Section 126 Rule) to establish Federal control requirements for certain electric power generators and industrial boilers and turbines in upwind States ( 64 FR 28250, May 25, 1999 and 65 FR 2674, January 18, 2000). For both rules, the compliance date for achieving the required NOX reductions is May 31, 2004. These two transport rules overlap considerably, with the NOX SIP Call being the broader action affecting more States. All the States affected by the Section 126 Rule are covered by the NOX SIP Call. Therefore, EPA coordinated the two rulemakings and established a mechanism under which the Section 126 Rule would be withdrawn for sources in a State where EPA has approved a SIP meeting the NOX SIP Call. 34 In both the NOX SIP Call and the Section 126 Rule, EPA made determinations of whether upwind sources are significantly contributing to downwind nonattainment problems under both the 1 hour and 8 hour ozone standards. In the final SIP Call rule, EPA determined that the same level of reductions was needed to address transport for both the 1 hour and 8 hour standards. 35 Thus, unlike in the past, States affected by transport can develop their new ozone implementation plans with the knowledge that the issue of interstate transport has already been addressed up front. This approach will provide these States with certainty that they will benefit from substantial emissions reductions from upwind sources and give them significantly improved boundary conditions that they VerDate Jan< 31> 2003 20: 45 May 30, 2003 Jkt 200001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 02JNP2. SGM 02JNP2 32828 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 36 The CAA's requirement for RACM in section 172( c)( 1) does require the SIP to include RACM; EPA has noted in policy elsewhere that a measure is RACM if it is technologically and economically feasible and if it would advance the attainment date. Thus, if there are measures available in the nonattainment area that would advance the attainment date   even if attainment is likely at a later date due to upwind emissions reductions that occur later   then the CAA requires such measures to be in the SIP. 37 Additional Options Considered for `` Proposed Rule to Implement the 8 Hour Ozone National Ambient Air Quality Standard.'' U. S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Research Triangle Park, NC. March 2003. can rely on as they work to identify additional emission reductions they will need to include in a local area's attainment SIP.

2. EPA's Anticipated Approach In providing their views to EPA on the 8 hour ozone implementation rule, the Ozone Transport Commission ( OTC) and other State commenters have argued that the NOX SIP Call and the Section 126 Rule are not fully adequate. In their view, additional steps are needed to reduce interstate transport of ozone and NOX to assist downwind areas in meeting the 8 hour ozone standard. In particular, these commenters have expressed continued concern about upwind emissions from power plants and other major sources and transported pollution from upwind cities. As described above, EPA has already taken two actions to address the issue of interstate transport for purposes of the 8 hour standard. The NOX SIP Call and the Section 126 Rule require that States within the SIP Call make significant emissions reductions from power plants and other major sources that contribute to ozone nonattainment in downwind areas. For both rules, the compliance date for achieving the required emissions reductions is May 31, 2004. EPA intends to investigate the extent, severity and sources of interstate ozone transport that will exist after the NOX SIP Call and the Section 126 Rule are implemented in 2004. The Agency believes that it may be appropriate to consider the need to reduce interstate transport that contributes to unhealthy levels of PM2.5 in downwind nonattainment areas when looking at any additional requirements for reducing the transport of ozone or ozone precursors. As noted above, the President recently proposed the CSA that, among other things, would achieve significant reductions   beyond those required under the SIP Call and the Section 126 Rule   in the regional transport of ozone and ozone precursors. Detailed modeling by EPA for the year 2010 shows that the 2008 Phase I NOX limits in the CSA would reduce maximum 8 hour ozone levels in many parts of the eastern U. S., including a number of areas likely to be designated nonattainment for the 8 hour standard. The modeling results are available on the Web at http:// www. epa. gov/ clearskies. The Clear Skies reductions would enable several additional areas to meet the 8 hour standard without imposing any additional local controls. A number of other areas would find it easier to meet the 8 hour standard because of the additional reductions in power plant emissions that would be required under Clear Skies. However, the Agency has not made a determination that such reductions are warranted under the transport provisions of the CAA. As noted above, in order to evaluate this issue, the Agency intends to investigate the extent, severity and sources of interstate ozone transport that will exist after the existing transport rules are implemented in 2004. The Agency welcomes input from States and other interested parties as to how to deal with ozone transport effectively and equitably and on the technical and other issues that will have to be confronted as part of an evaluation of what further steps should be taken beyond the existing NOX SIP Call to deal with ozone transport.

3. Other Concerns About Transport EPA realizes that, whatever measures may be taken in the future, attainment demonstrations for some areas would continue to be complicated by the effects of ozone and transport from upwind sources and other nonattainment areas in cases where upwind source controls are scheduled for implementation after the downwind area's attainment date ( e. g., 2007 attainment date). Downwind areas could be in one of two situations. In the first situation, an area might be receiving such high levels of transported ozone or ozone precursors that even if it totally eliminated its own emissions, the incoming ozone and precursors would be sufficient to continue to cause violations of the standard beyond the applicable attainment date. In the second situation, the area might be able to achieve additional local reductions sufficient to demonstrate attainment. In this second case, the question arises as to whether it is equitable to require those reductions or to allow more time for the reductions in the `` upwind'' area to take place. 36 EPA solicits comment on how to address this issue. EPA believes that a subpart 1 area could be granted a later attainment date if warranted considering transport. For areas classified under subpart 2, the statute provides no express relief for these situations. The area does have the option of requesting to be classified to the next higher classification. Thus, where the demonstration of attainment is complicated by transport between two areas of different classifications, the State is still responsible for developing and submitting demonstrations which show that the standard will be attained by the applicable date. In other words, the State must provide for sufficient emissions reductions on a schedule that will ensure attainment in its area. One approach would be for States to work together in a collaborative process to perform the necessary analyses to identify appropriate controls that provide for attainment throughout the multi State area. EPA believes that the wording in sections 172( c)( 1) and 182( b)( 1)( A)( i) requires the State to develop a plan providing such emissions reductions. States working together in a collaborative process could perform a comprehensive assessment of the impacts of all control measures being implemented in both the local and upwind areas. The analysis may show the extent to which the downwind area is dependent on upwind strategies while fully meeting its own requirements associated with its classification. Upwind areas may provide a comprehensive assessment of the impacts of all control measures being implemented on the downwind areas.

4. Other Options Considered We considered a number of other options and approaches for addressing transport. The other options that were considered but are not being proposed are described in a separate document available in the docket. 37 G. How Will EPA Address Transport of Ground level Ozone and its Precursors for Rural Nonattainment Areas, Multi State Nonattainment Areas, Areas Affected by Intrastate Transport, and International Transport?

1. Rural Transport Nonattainment Areas Section 182( h) recognizes that the ozone problem in a rural transport area is almost entirely attributable to emissions from upwind areas. Therefore, the only requirements for the rural area are the minimal requirements specified for areas expected to attain within 3 years of designation, the assumption being that the controls in VerDate Jan< 31> 2003 20: 45 May 30, 2003 Jkt 200001 PO 00000 Frm 00028 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 02JNP2. SGM 02JNP2 32829 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 38 The statute contains a typographical error referring to section 181( a)( 2) instead of 181( b)( 2). 39 As noted elsewhere in this notice, the Consolidated Emissions Reporting Rule ( 67 FR 39602, June 10, 2002) has established basic emission inventory requirements for all areas of the country and generally requires periodic inventories of emissions that actually occur in the year of the inventory in the U. S. area of interest. This would include emissions from foreign registered vehicles. the upwind area will solve the remaining nonattainment problem in the rural transport area as well. In these cases, the timing for attainment will depend on the schedule for adoption and implementation of control measures in the upwind areas.

2. Multi State Nonattainment Areas Section 182( j)( 2) for multi State nonattainment areas ( i. e., portions of the nonattainment area lie in two or more States) recognizes that one State may not be able to demonstrate attainment for the portion of the nonattainment area within its borders if other States containing the remaining portions of the nonattainment area do not adopt and submit the necessary attainment plan for their portions of the nonattainment area. In such cases, even though the area as a whole would not be able to demonstrate attainment, the sanction provisions of section 179 shall not apply in the portion of the nonattainment area located in a State that submitted an attainment plan. Section 182( j) defines a multi State ozone nonattainment area as an ozone nonattainment area, portions of which lie in two or more States. Section 182( j)( 1)( A) and ( B) set certain requirements for such areas. First, each State in which a multi State ozone nonattainment area lies, must take all reasonable steps to coordinate the implementation of the required revisions to SIPs for the given nonattainment area [ section 182( j)( 1)( A)]. Next, section 182( j)( 1)( B) requires the States to use photochemical grid modeling or any other equally effective analytical method approved by EPA for demonstrating attainment. EPA is prevented by section 182( j) from approving any SIP revision submitted under that section if a State has failed to meet the above requirements. Pursuant to section 182( j)( 1)( A), States that include portions of a multi State ozone nonattainment area are required to develop a joint work plan as evidence of early cooperation and integration. The work plan should include a schedule for developing the emissions inventories, and the attainment demonstration for the entire multi State area. Each State within a multi State ozone nonattainment area is responsible for meeting all the requirements relevant to the given area. Care should be taken to coordinate strategies and assumptions in a modeled area with those in other, nearby modeled areas in order to ensure that consistent, plausible strategies are developed. 3. Intrastate Transport Several State air agency representatives have voiced a concern about intrastate transport of ozone and precursor emissions and have asked EPA to address this concern. One State, for instance, notes that it has upwind areas that are affecting downwind areas and in some cases may be preventing a downwind area from attaining the standard by its statutory date. We believe that the CAA requires individual States, as an initial matter, to deal with intrastate transport. We realize that some States are structured with semi autonomous local air agencies that are empowered to address major elements of the SIP process, including preparation of the attainment demonstration. In those situations, the CAA provides that the State retain sufficient backstop authority to ensure all areas within its borders reach attainment, ( 110( a)( 2)( E)). A State could, of course, recommend designation of nonattainment areas that are large enough to encompass upwind and downwind areas of the State and require that the individual jurisdictions work together on an attainment plan that accounts for transport and results in attainment by the attainment date for the entire nonattainment area. Or a State could require the individual agencies to work together in the same manner as multi State organizations. In this case, there would be separate nonattainment areas with independent agencies expected to work together to address transport among the nonattainment areas. To facilitate this process, the State could require the agencies to sign a memorandum of agreement which describes the technical and administrative approach for performing the modeling analysis and identifying the appropriate controls measures. Upon a State's request, we would be willing to provide support for these activities. We also solicit comments on other ways of addressing intrastate transport within the context of the CAA provisions.

4. International Transport a. International transboundary transport. International transboundary transport of ozone and ozone precursors can contribute to exceedances of the NAAQS. It is likely that the international transport of air pollutants will affect the ability of some areas to attain and maintain the 8 hour ozone NAAQS. As States and EPA implement control strategies and national emission reduction programs, the impact of high background levels emanating from outside the U. S. may play a larger role in future attainment demonstrations. We have developed an information document on `` International Transboundary Influences and Meeting the NAAQS,'' which is located in the Docket to this proposed rulemaking. This document provides information on efforts with Canada and Mexico to address transboundary air pollution as well as additional information for intercontinental modeling work currently underway within EPA. b. Section 179B and the SIP approval process. Section 179B of the CAA ( International Border Areas), applies to nonattainment areas that are affected by emissions emanating from outside the United States. This section requires EPA to approve a SIP for a nonattainment area if: It meets all of the requirements applicable under the CAA, other than a requirement that the area demonstrate attainment and maintenance of the ozone NAAQS by the applicable attainment date; and the affected State establishes to EPA's satisfaction that the SIP would be adequate to attain and maintain the ozone NAAQS by the applicable attainment date but for emissions emanating from outside the United States. Further, any State that establishes to the satisfaction of EPA that the State would have attained the 8 hour ozone NAAQS, but for emissions emanating from outside the U. S., would not be subject to the attainment date extension provided in section 181( a)( 5), the fee provisions of section 185, and the bump up provisions for failure to attain for 8 hour ozone NAAQS specified in section 181( b)( 2). 38 In demonstrating that an area could attain the 8 hour ozone NAAQS but for emissions emanating from outside the U. S., approved EPA modeling techniques should be used to the best extent practicable. An emission inventory incorporating vehicle emissions released in the U. S. by foreign vehicles, i. e., those vehicles registered in the adjacent foreign country, must be completed by the States before modeling the U. S. side only and attempting to demonstrate attainment. 39 We recognize that adequate data may not be available for mobile and stationary sources outside the United States. Therefore, modeling, per EPA's `` modeling VerDate Jan< 31> 2003 20: 45 May 30, 2003 Jkt 200001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 02JNP2. SGM 02JNP2 32830 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 40 Use of models that are capable of simulating transport and formation of multiple pollutants simultaneously. For example, for ozone and fine particles, it is critical that the model simulate photochemistry, which includes interactions among the pollutants and their precursors. guidance'' described elsewhere in the section on attainment demonstrations, may not be possible in all cases. Because very few areas are likely to be affected by this provision, EPA will determine on a case by case basis whether the State has satisfactorily made the required demonstration. The State is encouraged to consult with EPA Regional Office in developing any alternate demonstration methods. Methods that the State may want to consider include: Using ozone episodes that do not involve international transport of emissions for modeling ( see guidance document entitled `` Criteria for Assessing Role of Transported Ozone/ Precursors in Ozone Nonattainment Areas''), running the model with boundary conditions that reflect general background concentrations on the U. S. side, analyzing monitoring data if a dense network has been established, and using receptor modeling. States should confer with the appropriate EPA Regional Office to establish appropriate technical requirements for these analyses.

5. Additional Ways of Addressing Transport Additional approaches to address transport are discussed in the section on classifications.

6. State Tribal Transport States have an obligation to notify Tribes as well as other States in advance of any public hearing( s) on their State plans that will significantly impact such jurisdictions. Under 40 CFR 51.102( 6)( i), States must notify the affected States of hearings on their SIPs; this requirement extends to Tribes under 301( d) of the CAA and the TAR. ( 40 CFR Part 49). Therefore, affected Tribes that have achieved `` treatment as States'' status must be informed of the contents of such plans and the extent of documentation to support the plans. For example, in the case where the State models projected emissions and air quality under the SIP, the Tribes should be made aware of these modeling analyses. Tribes may wish to determine if the Tribal area has been affected by upwind pollution and whether projected emissions from the Tribal area have been considered in the modeling analyses. Generally, Tribal lands have few major sources, but in many cases, air quality in Indian country is affected by the transport   both long range and shorter distance transport   of pollutants. In many cases, Tribal nonattainment problems caused by upwind sources will not be solved by long range transport policies, as the Tribes' geographic areas are small. Tribes are sovereign entities, and not political subdivisions of States. Strategies used for intrastate transport are not always available. Most of the strategies and policies used by States in dealing with short range transport are not available to Tribes, e. g., requiring local governments to work together and expanding the area to include the upwind sources. Unlike Tribes, States can generally require local governments to work together, or make the nonattainment area big enough to cover contributing and affected areas. We believe that it is also unfair to Tribes to require disproportionate local regulatory efforts to compensate for upwind emissions. In many cases, attainment could not be reached even if emissions from the Tribe were zero. To address these concerns, we propose to take comment on the following: EPA will review SIPs for their effectiveness in preventing significant contributions to nonattainment in downwind Tribal areas with the same scrutiny it applies to reviewing SIPs with respect to impacts on downwind States. Where a Tribe has `` treatment in the same manner as States,'' EPA will support the Tribe in reviewing upwind area SIPs during the State public comment period.

H. How Will EPA Address Requirements for Modeling and Attainment Demonstration SIPs When Implementing the 8 Hour Ozone Standard?

An attainment demonstration SIP consists of ( 1) technical analyses to locate and identify sources of emissions that are causing violations of the 8 hour NAAQS within nonattainment areas ( i. e., analyses related to the emissions inventory required for the nonattainment area), ( 2) adopted measures with schedules for implementation and other means and techniques necessary and appropriate for attainment, ( 3) commitments, in some cases, to perform a mid course review, and ( 4) contingency measures required under section 172( c)( 9) of the CAA that can be implemented without further action by the State or the Administrator to cover emissions shortfalls in RFP plans and failures to attain. We are soliciting public comment on the following guidance. Associated with the attainment demonstration also are the RFP/ ROP plans and the SIP submission concerning RACM, for which we are proposing rules elsewhere in this proposal. 1. Multi Pollutant Assessments ( One Atmosphere Modeling 40)

Many factors affecting formation and transport of secondary fine particles ( i. e., PM2.5 components) are the same as those affecting formation and transport of ozone. For example, similarities exist in sources of precursors for ozone and secondary fine particles. Sources of NOX may lead to formation of ozone as well as nitrates which contribute to the formation of secondary fine particles. Sources of VOC may contribute to ozone formation and may also be sources or precursors for organic particles. Presence of ozone itself may be an important factor affecting secondary particle formation. As ozone builds up, so do hydroxyl ( OH) radicals as a result of equilibrium reactions between ozone, water and OH in the presence of sunlight. Hydroxyl radicals are instrumental in oxidizing gas phase SO2 to sulfuric acid, which is eventually absorbed by liquid aerosol and converted to particulate sulfate in the presence of ammonia. Therefore, strategies to reduce ozone can also affect formation of secondary fine particles which contribute to visibility impairment. Therefore, models and data analysis intended to address visibility impairment need to be capable of simulating transport and formation of both secondary fine particles and ozone. At a minimum, modeling should include previously implemented or planned measures to reduce ozone, secondary fine particles, and visibility impairment. An integrated assessment of the impact controls have on ozone, secondary fine particles, and regional haze provides safeguards to ensure ozone controls will not preclude optimal controls for secondary fine particles and visibility impairment. The concept of modeling control impacts on all three programs is further strengthened by the alignment of the implementation process for ozone and secondary fine particles. As the dates for attainment demonstration SIPs begin to coincide, the practicality of using common data bases and analysis tools for all three programs becomes more viable and encourages use of shared resources. States that undertake multi pollutant assessments as part of their attainment demonstration would assess the impact of their ozone attainment strategies on VerDate Jan< 31> 2003 20: 45 May 30, 2003 Jkt 200001 PO 00000 Frm 00030 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 02JNP2. SGM 02JNP2 32831 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 41 U. S. EPA, ( May 1999), Draft Guidance on the Use of Models and Other Analyses in Attainment Demonstrations for the 8 Hour Ozone NAAQS, EPA   454/ R   99   004, http:// www. epa. gov/ ttn/ scram, ( Modeling Guidance, File name: DRAFT8HR). secondary fine particles and visibility or perform a consistent analysis for ozone, secondary fine particles, and visibility. To facilitate such an effort, we would encourage States to work closely with established regional haze Regional Planning Organizations ( RPOs) and the jurisdictions responsible for developing PM2.5 implementation plans. Though the CSA, if enacted as introduced, would provide substantial improvement in air quality for ozone, PM2.5 and visibility, States are encouraged to follow EPA's lead and perform similar multi pollutant assessments as part of their ozone attainment demonstrations, considering the programs that are in place at the time of the assessment. Multi pollutant assessments are discussed elsewhere in this proposed rulemaking.

2. Areas With Early Attainment Dates Under section 182( a), marginal areas, which have an attainment date of only 3 years after designation, are not required to perform a complex modeling analysis using photochemical grid modeling. Areas covered under either subpart 1 or 2 with ozone concentrations close to the level of the NAAQS ( e. g., within 0.005 ppm), will most likely come into attainment within 3 years after designation as nonattainment without any additional local planning as a result of national and/ or regional emission control measures that are scheduled to occur. We have good reason to believe these areas will come into attainment. Regional scale modeling for national rules, such as the NOX SIP Call and Tier II motor vehicle tailpipe standards, demonstrates major ozone benefits for the 3 year period of 2004   2006. This period would be relevant for demonstrating attainment within 3 years of designation, assuming designations occur in early 2004. Many similar areas classified as marginal for the 1 hour ozone NAAQS in 1990 came into attainment within the initial 3 year period. As an additional safeguard, if attainment demonstration modeling is performed using multi State geographic areas, most of these areas with early attainment dates will be included in the modeling analyses conducted by areas with later attainment dates. This will provide an opportunity for review of the impact control programs will have on areas with early attainment dates. Experience with the 1 hour ozone attainment demonstrations has shown that 3 years is not enough time to perform the detailed photochemical grid modeling needed to develop the demonstration and complete the regulatory process needed to adopt and implement control measures sufficiently before the attainment date. It would not be reasonable to require these areas to expend the amount of resources needed to perform a complex modeling analysis given how close these areas are to meeting the level of the NAAQS. Therefore, we propose that no additional modeled attainment demonstration would be required for areas with air quality observations close to the level of the standard as described above and where regional or national modeling exists and is appropriate for use in the area demonstrates that an area will attain the 8 hour standard within 3 years after designation. This proposal would apply for areas covered under either subpart 1 or subpart 2. Areas with early attainment dates with air quality observations that are not close to the level of the NAAQS ( as described above) and regional scale modeling for national rules that demonstrates they will not be in attainment within 3 years of designation should consider requesting reclassification to the next higher classification. This reclassification would provide additional time for developing an attainment demonstration SIP and adopting and implementing the control measures needed.

3. Areas With Later Attainment Dates Areas with later attainment dates ( more than 3 years after designation), regardless of whether they are covered under subpart 1 or subpart 2, would be required to do an attainment demonstration SIP. Local, regional and national modeling developed to support Federal or local controls may be used provided the modeling is consistent with EPA's modeling guidance, described below. Several States have invested considerable time and resources in regional 8 hour ozone modeling projects following this guidance. Since exceedances of the 8 hour ozone NAAQS are more pervasive than 1 hour ozone exceedances, we encourage multi State applications of the modeling guidance. States should work together and leverage off work under development and resources spent on these projects. This will be most beneficial in developing attainment demonstrations to achieve attainment.

4. Modeling Guidance Section 182 ( b)( 1)( A) requires ozone nonattainment areas to develop an attainment demonstration which provides for reductions in VOC and NOX emissions `` as necessary to attain the national primary ambient air quality standard for ozone.'' Section 172( c), requires areas covered under subpart 1 to demonstrate attainment. As noted above, if a subpart 1 area has an attainment date beyond 3 years of designation, we would require the State to develop an attainment demonstration. Section 182( c)( 2)( A) provides that for serious and higher classified areas the `` attainment demonstration must be based on photochemical grid modeling or any other analytical method determined by the Administrator, in the Administrator's discretion, to be at least as effective.'' A photochemical grid model should meet several general criteria for it to be a candidate for consideration in an attainment demonstration. Note that, unlike in previous guidance ( U. S. EPA, 1991), we are not recommending a specific model for use in the attainment demonstration for the 8 hour NAAQS for ozone. At present, there is no single model which has been extensively tested and shown to be clearly superior or easier to use than other available models. General criteria for attainment demonstrations are contained in 40 CFR part 51, appendix W ( i. e., `` EPA's Guideline on Air Quality Models'', 68 FR 18440, April 15, 2003). Appendix W refers to EPA's May 1999 draft `` Guidance on the Use of Models and Other Analyses in Attainment Demonstrations for the 8 Hour Ozone NAAQS'' for a set of general requirements that an air quality model should meet to qualify for use in an attainment demonstration for the 8 hour ozone NAAQS. 41 Thus, States may choose from several alternatives. These include having received a scientific peer review, being applicable to the specific application on a theoretical basis, and having an adequate database to support its application. It is also important that past applications indicate model estimates are not likely to be biased low and that the model is applied consistently with a protocol on methods and procedures. We plan to finalize this guidance at the same time the final implementation rule is published. Comments on this document are solicited as part of this proposal. The guidance describes how to apply air quality models. The output from such a model is used to support an attainment demonstration. The recommended procedure for applying a model includes developing a conceptual description of the problem to be addressed; developing a modeling/ analysis protocol; selecting an appropriate model to support the demonstration; selecting appropriate VerDate Jan< 31> 2003 20: 45 May 30, 2003 Jkt 200001 PO 00000 Frm 00031 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 02JNP2. SGM 02JNP2 32832 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 42 Memorandum of March 28, 2002, from Lydia N. Wegman and J. David Mobley, re: `` Mid Course Review Guidance for the 1 Hour Ozone Nonattainment Areas that Rely on Weight of Evidence for Attainment Demonstration.'' Located at URL: http:// www. epa. gov/ scram001/ guidance/ guide/ policymem33d. pdf. meteorological episodes or time periods to model; choosing an appropriate area to model with appropriate horizontal/ vertical resolution; generating meteorological and air quality inputs to the air quality model; generating emissions inputs to the air quality model; evaluating performance of the air quality model; and performing diagnostic tests. After these steps are completed, the model is used to simulate effects of candidate control strategies. The guidance recommends procedures for estimating if a control strategy to reduce emissions of ozone precursors will lead to attainment of the 8 hour NAAQS for ozone. It explains what is meant by a modeled attainment demonstration, a modeled attainment test, a screening test, and a weight of evidence determination. It also identifies additional data which, if available, should enhance the credibility of model results and results of other analyses used in a weight of evidence determination. States should work closely with the appropriate U. S. EPA Regional Office( s) in executing each step. We are planning to make substantial changes to the draft version of this document. Changes include: ( 1) The future year of emission estimates to model, ( 2) the recommended length of time period to model ( i. e., up to full ozone season), and ( 3) the use of spatial fields of ambient concentrations as part of the `` modeled attainment test.'' We welcome public comments on the guidance at any time and will consider those comments in any future revision of the document. Comments submitted on the modeling guidance document should be identified as such and will not be docketed as part of this rulemaking, nor will a comment/ response summary of these comments be a part of the final 8 hour ozone implementation rule since they will not affect the rule itself. The final version of the guidance is scheduled for release by December 2003 and will be posted on EPA's Web site ( http:// www. epa. gov/ ttn/ scram/).

5. Mid Course Review ( MCR) A MCR provides an opportunity to assess whether a nonattainment area is or is not making sufficient progress toward attainment of the 8 hour ozone standard, as predicted in its attainment demonstration. The review utilizes the most recent monitoring and other data to assess whether the control measures relied on in a SIP's attainment demonstration have resulted in adequate improvement in air quality. We believe that a commitment to perform a MCR is a critical element in an attainment demonstration that employs a long term projection period and relies on weight of evidence. Because of the uncertainty in long term projections, we believe such attainment demonstrations need to contain provisions for periodic review of monitoring, emissions, and modeling data to assess the extent to which refinements to emission control measures are needed. A number of States have participated in a consultative process with EPA, which resulted in the development of the 1 hour MCR guidance. 42 We are updating the 1 hour MCR policy and technical guidance to include 8 hour metrics and are soliciting comment on appropriate revisions; final MCR guidance incorporating 8 hour metrics will be available at the time we issue our final implementation rule. States should consult with EPA prior to using a methodology other than the one developed through the public consultative process. The procedure for performing a MCR contains three basic steps: ( 1) Perform an administrative test ( e. g., demonstrate whether the appropriate emission limits were adopted and implemented); ( 2) analyze available air quality, meteorology, emissions and modeling data and document findings; and ( 3) document conclusions regarding whether progress toward attainment is being made using a weight of evidence determination ( which may or may not include new modeling analyses). EPA does not request that States commit in advance to adopt new control measures as a result of the MCR process. Based on the MCR, if EPA determines sufficient progress has not been made, EPA would determine whether additional emissions reductions are necessary from the State or States in which the nonattainment area is located or upwind States, or both. EPA would then require the appropriate State or States to adopt and submit the new measures within a specified period. We anticipate that these findings would be made as calls for SIP revisions under section 110( k)( 5) and, therefore, the period for submission of the measures would be no longer than 18 months after the EPA finding. Thus, States should complete the MCR 3 or more years before the applicable attainment date to ensure that any additional controls that may be needed can be adopted in sufficient time to reduce emissions by the start of the ozone season in the attainment year.

I. What Requirements for RFP Should Apply Under the 8 Hour Ozone Standard?

1. Background Section 172( c)( 2), which is located in subpart 1 of part D of title I, requires State plans for nonattainment areas to require RFP. Section 171( 1) of the CAA defines RFP to mean `` such annual incremental reductions in emissions of the relevant air pollutant as are required by this part [ part D of title I] or may reasonably be required by the Administrator for the purpose of ensuring attainment of the applicable [ NAAQS] by the applicable date.'' Subpart 2 of part D of title I provides more specific RFP requirements for ozone areas classified under section 181. ( In general, we have used the term `` RFP'' as the more generic progress requirement, whereas it has used the term `` rate of progress'' or `` ROP'' to denote the specific subpart 2 progress requirements that are defined as specific percent reductions from a baseline emissions inventory.) In particular, it specifies the base year emission inventory upon which ROP is to be planned for and implemented, the increments of emissions reductions required over specified time periods, and the process for determining whether the ROP milestones were achieved. Subpart 2 does not specify ROP requirements for marginal areas. Section 182( b)( 1)( A) mandates a 15 percent VOC emission reduction, accounting for growth, between 1990 and 1996 for moderate and above ozone nonattainment areas. Furthermore, section 182( c)( 2)( B) of the CAA requires each serious and above ozone nonattainment area to submit a SIP revision providing for an actual VOC emission reduction of at least 3 percent per year averaged over each consecutive 3 year period beginning in 1996 until the area's attainment date ( the post 1996 ROP plan). Section 182( c)( 2)( C) of the CAA allows for substitution of NOX for VOC emissions reductions in the post 1996 ROP plan. EPA's policy, the NOX Substitution Guidance ( December 15, 1993; available at http:// www. epa. gov/ ttn/ oarpg/ t1pgm. html), addresses the substitution of NOX emissions reductions for VOC emissions reductions. The baseline emission inventory for determining the required ROP reductions is specified as 1990. The requirements for RFP under subparts 1 and 2, as described above, are VerDate Jan< 31> 2003 20: 45 May 30, 2003 Jkt 200001 PO 00000 Frm 00032 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 02JNP2. SGM 02JNP2 32833 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 43 Memorandum of December 29, 1997 from Richard D. Wilson to Regional Administrators, Regions I   X re: `` Guidance for Implementing the 1 Hour Ozone and Pre Existing PM10 NAAQS.'' Located at URL: http:// www. epa. gov/ ttn/ oarpg/ t1/ memoranda/ iig. pdf. The distances used resulted from FACA discussions cited earlier and generally represent transport of 1 to 2 days. 44 Additional Options Considered for `` Proposed Rule to Implement the 8 Hour Ozone National Ambient Air Quality Standard.'' U. S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Research Triangle Park, NC. March 2003. the minimum required for an area. More reductions may be necessary for attainment within the nonattainment area or where the area contributes to a downwind area's nonattainment problem. Moreover, an upwind area that contributes to nonattainment in a downwind area may need more reductions in a shorter time in order for the downwind area to reach attainment by its required attainment date.

2. Proposed Features in General In developing an approach for addressing the RFP requirements for the 8 hour ozone standard, we propose the following:   The same baseline year would be used both to address growth ( in emissions, vehicle miles traveled ( VMT) or otherwise) and to calculate the RFP target level.   Emissions reductions from outside the nonattainment area up to 100 km for VOC and 200 km for NOX ( and statewide if under a regional strategy) would be allowed consistent with EPA's existing December 1997 interim implementation policy for 1 hour ozone NAAQS. 43   For areas classified under subpart 2, the ROP requirements specified in subpart 2 would apply, namely a 15 percent VOC emission reduction, accounting for growth, in the first 6 years after the baseline year for moderate and above ozone nonattainment areas. In addition, for areas classified as serious and above, the ROP provisions in subpart 2 require a VOC or NOX emission reduction of at least three percent per year averaged over each consecutive 3 year period beginning 6 years after the baseline year ( specified as under the 1990 CAAA). Areas classified under subpart 2 as marginal, which are required to attain 3 years following classification, are subject only to such RFP as necessary to attain. We believe the periods for RFP under subpart 2 for the 8 hour ozone NAAQS should run from the date of the baseline year under subpart 2, and would be equivalent to the periods under the 1 hour ozone NAAQS. Thus, the first 15 percent reduction would be required for the 6 year period starting from the last day ( December 31) of the baseline year and the first 3 year period for the subsequent three percent per year emission reduction requirement in serious areas would begin 6 years after the last day ( December 31) of the baseline year. The baseline issue is discussed in section 4 below.

3. For Subpart 2 Areas, Should the Initial 15 Percent RFP Requirement Be Limited to VOC Emissions? Currently, for many areas of the country, particularly in the Eastern U. S. outside major metropolitan areas, there is a greater need for NOX reductions rather than VOC reductions. However, under the prescribed requirements of the CAA, NOX substitution is only allowed for the post 1996 ROP requirement ( three percent per year averaged over 3 years), not for the initial 15 percent ROP requirement. We are proposing 2 options to address this issue. a. Option 1. Continue to require 15 percent VOC reductions within 6 years after the baseline year for all areas designated moderate and above for the 8 hour ozone NAAQS. After 6 years, all serious and above areas would be required to achieve a nine percent reduction in VOC and/ or NOX emissions every 3 years, i. e., an average of three percent per year. b. Option 2. For those areas that have approved 15 percent plans for their 1 hour ozone SIPs, an additional 15 percent VOC reduction is not necessary. Areas that are classified as moderate under the 8 hour standard that have already implemented their 15 percent plans under their 1 hour ozone SIPs would be considered to have met the statutory 15 percent requirement and would be covered under the more generic RFP requirements of subpart 1. Subpart 1 RFP requirements are discussed below. Areas that are classified as serious and above under the 8 hour standard that have already implemented their 15 percent plans under the 1 hour ozone standard would have to include in their SIPs an additional RFP plan that would achieve an average of three percent per year of VOC and/ or NOX over each 3 year period until their attainment year. We recognize that it would be difficult to submit a plan that provides for the first nine percent emission reduction within 3 years after nonattainment designation. Therefore, consistent with what Congress did under section 182( b)( 1), we propose to allow the first ROP increment to be averaged over 6 years. We propose that an area classified serious or above submit its ROP plan within 2 years after designation that provides for 18 percent emissions reductions ( VOC and/ or NOX) over the first 6 years from the baseline year and then submit within 3 years after designation a ROP plan that provides nine percent emissions reductions ( VOC and/ or NOX) over each of the next 3 year periods until the area's attainment date. This option recognizes previous efforts by areas that submitted 15 percent plans as required under the 1 hour ozone NAAQS and provides flexibility to States to use a mix of NOX and VOC reductions to meet the additional ROP/ RFP requirements. We believe that the statute can be interpreted to require the mandatory 15 percent VOC reduction only once for a given area. Once 15 percent VOC reduction requirements have been met, an area would actually have to achieve greater emissions reductions, i. e., an average of three percent per year, but could choose either VOC or NOX reductions as appropriate. We prefer this second option because it provides more flexibility for the ROP plan to be consistent with the area's needs in attaining the standard. c. Other options that EPA considered. We considered other options for addressing this issue that are not being proposed here; discussion of them appears in a separate document, available in the docket. 44 However, we solicit comments on other options and what possible rationales   legal and scientific   might be used to justify those options.

4. What Baseline Year Should Be Required for the Emission Inventory for the RFP Requirement?

The baseline inventory for RFP ( under subpart 2) is used as the starting point for the determination of a target level of emissions for the future year RFP and as the baseline from which creditable reductions are determined. We currently anticipate designating nonattainment areas in 2004. Under the `` Consolidated Emissions Reporting Rule'' ( 67 FR 39602, June 10, 2002) revised emissions inventories are required for the years 2002 and 2005; therefore, we propose to require use of the 2002 inventory as the baseline inventory for the RFP requirement. This would be the most recently available inventory at the time of designation. We recently issued a memorandum identifying 2002 as the anticipated emission inventory base year for the SIP planning process to VerDate Jan< 31> 2003 20: 45 May 30, 2003 Jkt 200001 PO 00000 Frm 00033 Fmt 4701 Sfmt 4702 E:\ FR\ FM\ 02JNP2. SGM 02JNP2 32834 Federal Register / Vol. 68, No. 105 / Monday, June 2, 2003 / Proposed Rules 45 Memorandum on November 18, 2002, from Lydia Wegman and Peter Tsirigotis, `` 2002 Base Year Emission Inventory SIP Planning: 8 hr Ozone, PM2.5 and Regional Haze Programs.'' This document is available at the following Web site: http:// www. epa. gov/ ttn/ oarpg/ meta. 442.1.2002baseinv. pdf. 46 Additional Options Considered for `` Proposed Rule to Implement the 8 Hour Ozone National Ambient Air Quality Standard.'' U. S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Research Triangle Park, NC. March 2003. address the 8 hour ozone and the PM2.5 standards. 45 We considered other options for addressing this issue that are not being proposed here; discussion of them appears in a separate document, available in the docket. 46 5. Should Moderate Areas Be Subject to Prescribed Additional RFP Requirements Prior to Their Attainment Date? For areas initially classified moderate and higher under the 1 hour ozone standard, the baseline inventory was defined as 1990 in the CAA Amendments of 1990. Therefore, the 6 year period for the initial 15 percent ROP requirement ended in the same year as the attainment date for moderate areas, viz., 1996. For areas classified moderate and higher under the 8 hour ozone standard, however, we are proposing that the 15 percent ROP target level of emissions would be calculated for the 6 year period after the 2002 baseline year, i. e., 2003   2008. Moderate areas would be required to meet an attainment date no later than 6 years after the area is designated nonattainment for the 8 hour standard. If the effective date of designation of nonattainment areas is, for instance, May 15, 2004, the attainment date would be May 15, 2010. This leaves approximately a 11  2 year gap between the end of the 6 year period for the 15 percent ROP requirement ( i. e., December 31, 2008) and the attainment date. If we were to also require moderate areas to obtain an additional three percent per year reduction beyond 2008 for the 11  2 additional years until 2010, the ROP requirement would be more than what we believe Congress intended for moderate areas under subpart 2. Additional three percent per year reductions were only required for serious and higher classified 1 hour ozone nonattainment areas. We are proposing that the only specific ROP requirement applicable for moderate areas is the 15 percent VOC requirement between the end of 2002 and the end of 2008. However, section 172( c)( 2) also applies, requiring areas to meet RFP generally. Therefore, a moderate area would also have to provide any additional emissions reductions   VOC and/ or NOX   needed to provide for attainment by the area's attainment date. In proposing this approach, we are interpreting the subpart 1 RFP requirement to mean that the area must achieve whatever further reduction is needed for attainment in the remaining period prior to the attainment date ( 2009 and 2010). We are proposing that serious and higher classified areas would need to provide in their SIPs an additional average of three percent per year emissions reductions over each subsequent 3 year period beyond the initial 6 year period through the attainment year, consistent with what Congress specified in section 182( c)( 2)( B) of the CAA.

6. What Is the Timing of the Submission of the ROP Plan? Section 182( b)( 1) requires that moderate and higher classified areas submit their 15 percent ROP plans within 3 years after 1990. For the attainment dates under the 8 hour ozone standard, we propose interpreting the CAA's language referring to the date of enactment of the 1990 CAA Amendments to mean the date of designations for the 8 hour standard. If we were to require the ROP plans to be submitted within 3 years after their nonattainment designation date ( i. e., in 2007 if we designate in 2004), the plans would have to be implemented within 1 year after submission to ensure the 15 percent emissions reductions are achieved by the end of the relevant 6 year period ( i. e., December 2008). We believe this would likely not be sufficient time to ensure that the reductions would occur by the required deadline. Therefore, we propose that the ROP SIP be submitted within 2 years after nonattainment designation   by 2006. This would provide 2 years for the State to develop and submit its ROP plan, and another 2 years for the control measures to be implemented.

7. How Should CAA Restrictions on Creditable Measures Be Interpreted? Which National Measures Should Count as Generating Emissions Reductions Credit Toward RFP Requirements? Section 182( b)( 1) contains provisions that limit creditability toward meeting RFP for certain limited emission reduction measures required prior to the enactment of the CAA Amendments of 1990. We believe these specific restrictions should continue to apply for purposes of the 8 hour NAAQS as written in the CAA. We believe that Congress intended to prevent areas from taking credit for RFP only for those specific measures that were already adopted and in place ( or required to be in place) prior to the date of enactment of the CAA Amendments of 1990 ( November 15, 1990). We believe that this same logic holds true for the RFP requirement as it applies to the 8 hour ozone standard, namely preventing credit toward the mandatory RFP percent reductions for continuing reductions from those specific measures cited in the CAA that were already adopted and in place prior to the date of enactment of the CAA Amendments of 1990. There is no indication in the CAA that this exclusion should be changed. Congress mandated many emissions reductions in the 1990 CAA Amendments with no indication that they should not be credited to meeting RFP or attainment of any existing or revised NAAQS. Therefore, we are proposing that all emissions reductions that occur after the baseline emission inventory year from all Federal and any other measures ( not otherwise identified in section 182( b)( 1)( D)) would be creditable to the RFP requirement. For example, emissions reductions that occur after the 2002 baseline emission inventory year that result from the Tier 2 and sulfur in gasoline rules that were issued by EPA after the CAA Amendments of 1990 are creditable toward the RFP requirement for the 8 hour ozone standard. Another example of emissions reductions that would be creditable toward the RFP requirement for the 8 hour ozone standard would be VOC emissions reductions from certain MACT standards that will not produce emissions reductions until after the 2002 baseline; these would include several recently promulgated MACT standards ( such as those covering several surface coating operations) and also MACT standards that are expected to be promulgated in the summer of 2003. Reductions that occur prior to the baseline year would be incorporated into the baseline and could not be credited.