# Approval and Promulgation of Air Quality Implementation Plans; District of Columbia, Maryland, Virginia; Post 1996 Rate-of-Progress Plans, One-Hour Ozone Attainment Demonstrations and Attainment Date Extension for the Metropolitan Washington D.C. Ozone Nonattainment Area

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URL: https://www.frixlaw.com/law-library/documents/fr%3A01-61

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** January 3, 2001
- **Citation:** 66 FR 586

## Text

ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[DC-2025, MD-3064, VA-5052; FRL-6922-9]
Approval and Promulgation of Air Quality Implementation Plans; District of Columbia, Maryland, Virginia; Post 1996 Rate-of-Progress Plans, One-Hour Ozone Attainment Demonstrations and Attainment Date Extension for the Metropolitan Washington D.C. Ozone Nonattainment Area

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The EPA is approving the State Implementation Plans (SIPs) consisting of the Post-1996 rate-of-progress (ROP) plans with transportation control measures and the one-hour ozone attainment demonstrations for the Metropolitan Washington D.C. serious nonattainment area (the Washington area) submitted by the District of Columbia's Department of Health (DoH), Maryland's Department of the Environment (MDE) and by the Virginia Department of Environmental Quality (VADEQ). EPA is also approving the request to extend the attainment date to November 15, 2005. The Clean Air Act (CAA or the Act) requires EPA to establish national air quality standards (NAAQS) for certain widespread pollutants that cause or contribute to air pollution for the purposes of the one-hour ozone NAAQS. The Post-1996 ROP plans and the one-hour ozone attainment demonstrations will result in significant emission reductions of volatile organic compounds (VOCs) and oxides of nitrogen (NO
X
) in the Washington area. The intended effect of this action is to approve these SIP revisions as meeting the requirements of the Act.

DATES:

This final rule is effective on February 2, 2001.

ADDRESSES:

Copies of the documents relevant to this action are available for public inspection during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103; District of Columbia Department of Public Health, Air Quality Division, 51 N Street, N.E., Washington, DC 20002; Maryland Department of the Environment, 2500 Broening Highway, Baltimore, Maryland, 21224; and the Virginia Department of Environmental Quality, 629 East Main Street, Richmond, Virginia, 23219.

FOR FURTHER INFORMATION CONTACT:

Christopher Cripps, (215) 814-2179 or Janice Lewis, (215) 814-2185 at the EPA Region III office above or e-mail
Cripps.Christopher@epa.gov
or
Lewis.Janice@epa.gov
.

SUPPLEMENTARY INFORMATION:

This
SUPPLEMENTARY INFORMATION
section is organized to address the following questions:

A. What actions is EPA taking today?

B. What Previous Action Has Been Taken on These SIP Revisions?

C. What were the conditions for approval provided in the Notice of Proposed Rulemakings for the Post-1996 ROP plans and the attainment demonstrations?

D. What amendments to the attainment demonstration SIP did the Washington, DC area States' make since the December 16, 1999?

E. What State enforceable commitments were needed for approval?

F. What was the scope of the July 28, 2000 Supplemental Notice of Proposed Rulemaking?

G. What was the scope of the October 16, 2000 Supplemental Notice of Availability?

H. When did EPA make a determination regarding the adequacy of the Motor Vehicle Emissions Budgets for the Metropolitan Washington, DC area?

I. What SIP elements did EPA need to take final action on before full approval of the attainment demonstration could be granted?

J. What are the Clean Air Act measures relied on for the post-1996 and attainment demonstration SIP submission?

K. What are the conformity budgets in the post-1996 ROP plans and the attainment demonstrations?

L. What happens to the 2005 budgets when States change their budgets using the MOBILE6 Model?

M. What comments were received on the proposed approvals and how has EPA responded to those?

I. Background

A. What Action Is EPA Taking Today?

EPA is approving the Post-1996 ROP plans, the one-hour attainment demonstrations and attainment date extension submitted by DoH, MDE and VADEQ for the Washington area. The following tables identify submittal dates and amendment dates for the post-1996 ROP plans and the attainment demonstrations:

Table 1.—Post-1996 ROP Plans

DC
MD
VA

Initial submittal dates
November 10, 1997
December 24, 1997
December 19, 1997.

Amendment dates
May 25, 1999
May 20, 1999
May 25, 1999.

Table 2.—Attainment Demonstrations

DC
MD
VA

Initial submittal dates
April 24, 1998
April 29, 1998
April 29, 1998.

Amendment dates
October 27, 1998
August 17, 1998
August 18, 1998.

Supplemental dates
February 16, 2000

February 14, 2000
(MD SIP No. 00-01)

February 9, 2000.

Supplemental dates
March 22, 2000

March 31, 2000
(MD SIP No. 00-02)

March 31, 2000.

Table 3.—Attainment Date Extension Request

Initial submittal dates
September 20, 1999
July 16, 1999
September 3, 1999.

Supplemental dates
February 16, 2000
February 14, 2000
February 9, 2000.

B. What Previous Action Has Been Taken on These SIP Revisions?

On September 28, 2000, and October 19, 2000, EPA published Notices of Proposed Rulemaking on the Post-1996 plans for the Washington area (65 FR 58243 and 65 FR 62658). On December 16, 1999 (64 FR 70460), we proposed approval of the attainment demonstration and request for an attainment date extension for the Metropolitan Washington, DC area.

On February 22, 2000 (65 FR 8703), EPA published a notice of availability on guidance memoranda relating to the ten one-hour ozone attainment demonstrations (including the Washington area) proposed for approval or conditional approval on December 16, 1999. The guidance memoranda are entitled: “Guidance on Motor Vehicle Emissions Budgets in One-Hour Ozone Attainment Demonstrations” dated November 3, 1999, and “Guidance on the Reasonably Available Control Measures (RACM) Requirement and Attainment Demonstration Submissions for Ozone Nonattainment Areas” dated November 30, 1999.

On July 28, 2000, EPA published a supplemental notice of proposed rulemaking (SNPR) on the attainment demonstration (65 FR 46383). In that supplemental notice, we clarified and expanded on two issues relating to the motor vehicle emissions budgets in these SIPs. This supplemental notice is discussed in the section entitled “What was the scope of the July 28, 2000 Supplemental Notice of Proposed Rulemaking?” below.

On October 16, 2000 (65 FR 61134), another notice of supplemental proposed rulemaking was published to specifically support the proposed attainment demonstration published on December 16, 1999 for the four serious ozone nonattainment areas (including the Washington area). Originally, EPA established a comment period for this supplemental proposal ending on October 31, 2000. A notice extending the comment period on the October 16, 2000 notice was published on November 2, 2000 (65 FR 65818). An additional notice correcting a typographical error was published on November 9, 2000 (65 FR 67319). This supplemental notice is discussed in the section entitled “What was the scope of the October 16, 2000 Supplemental Notice of Availability?” below.

Comments received on all of the proposed notices listed in this section relevant to the Metropolitan Washington, DC area attainment demonstration, Post-1996 ROP plan and attainment date extension are discussed in section I. M. below.

C. What Were the Conditions for Approval Provided in the Notice of Proposed Rulemakings for the Post-1996 ROP Plans and the Attainment Demonstrations?

On December 16, 1999 (64 FR 70460), we proposed approval of the attainment demonstration and request for an attainment date extension for the Metropolitan Washington, DC area. Our approval was contingent upon certain actions by Maryland, Virginia and the District of Columbia (“the District”).

These actions were:

1. The District, Maryland and Virginia each had to adopt and submit an adequate motor vehicle emissions budget and concurrently submit a list of potential control measures that, when implemented, would be expected to provide sufficient additional emission reductions to ensure nonattainment area emissions in 2005 are equal to or less than the 1999 control strategy levels contained in the attainment demonstrations considering growth. These measures could not involve additional limits on highway construction beyond those that could be imposed under the submitted motor vehicle emissions budget. The states and the District needed to submit the revised budget and list of potential measures in time to allow EPA to determine the budgets adequate by May 31, 2000.

2. The District, Maryland and Virginia each had to adopt and submit an enforceable commitment, or reaffirm an existing enforceable commitment to do the following:

(a) Submit measures by July 1, 2000 for additional emission reductions, if any, as required to ensure nonattainment area emissions in 2005 are equal to or less than the 1999 control strategy levels.

(b) Submit a revised SIP and motor vehicle emissions budget by July 1, 2000 if additional measures affect the motor vehicle emissions inventory.

(c) Submit a revised SIP and motor vehicle emissions budget 1 year after the mobile sources MOBILE6 model is issued (required only if the attainment SIPs include the benefits of EPA's Tier 2/sulfur rule).

(d) Perform a mid-course review.

3. The District, Maryland and Virginia each had to adopt and submit a rule or rules for additional emission reductions needed, if any, to ensure nonattainment area emissions in 2005 are equal to or less than the 1999 control strategy levels. If any of these adopted measures affected the motor vehicle emissions budgets, then the District, Maryland and Virginia each needed to adopt and submit a revised SIP that incorporated revised motor vehicle emissions budgets reflecting such measures. These rules and revised motor vehicle emissions budgets, if any, needed to be submitted by July 1, 2000.

D. What Amendments to the Attainment Demonstration SIP did the Washington, D.C., Area States' Make Since December 16, 1999?

The following is a summary of such submittals which include submittal dates of revisions, the content of these submissions and other pertinent facts regarding these submissions:

On February 9, 14 and 16, 2000, Virginia, Maryland and the District, respectively, submitted the “State Implementation Plan (SIP) Revision, Phase II Attainment Plan for the Washington DC-MD-VA Nonattainment Area”—dated February 3, 2000. Hereafter in this notice the phrase “the February 3 plan document” means the document entitled “State Implementation Plan (SIP) Revision, Phase II Attainment Plan for the Washington DC-MD-VA Nonattainment Area” that was dated February 3, 2000. These submittals contain the 2005 motor vehicle emissions budgets that include Tier 2/sulfur benefits, commitments to a mid-course review and a list of potential control measures (from which a set of measures could be selected) that when implemented, would be expected to provide sufficient additional emission reductions to ensure nonattainment area emissions in 2005 are equal to or less than the control strategy levels contained in the modeled demonstration of attainment. Also, they contain a demonstration that sufficient additional emission reductions are included to ensure nonattainment area emissions in 2005 are equal to or less than the 1999 control strategy levels contained in the attainment demonstrations considering growth.

On March 22 and 31, 2000, the District, Maryland and Virginia submitted the “Proposed Revision to State Implementation Plan (SIP) Revision, Phase II Attainment Plan for the Washington DC-MD-VA Nonattainment Area, establishing the out year Mobile Emissions Budgets for Transportation Conformity”—dated March 22, 2000. (Hereafter in this notice the phase “the March 22 plan document” means the document entitled “Proposed Revision to State Implementation Plan (SIP) Revision, Phase II Attainment Plan for the Washington DC-MD-VA Nonattainment Area, establishing out year Mobile

Emissions Budgets for Transportation Conformity” that was dated March 22, 2000.) These submittals amended chapters 1 and 9 of the February 3 plan document. These submittals established outyear budgets and submitted an enforceable commitment to revise the SIP and motor vehicle emissions budget 1 year after the MOBILE6 model is issued. In today's action EPA is acting only on the commitment found in section 9.1.1.2 entitled “Commitment to Revise Mobile Emissions Budgets” to revise the motor vehicle emissions budget one-year after the MOBILE6 model is issued. The portions of the March 22 plan document that establish outyear budgets will be the subject of a separate rulemaking action.

E. What State Enforceable Commitments Were Needed for Approval?

Of the four enforceable commitments described in the December 16, 1999, NPR two are now moot: Numbers 2.a and 2.b described in the section entitled “What were the conditions for approval in our December 16,1999 Notice of Proposed Rulemaking” above. The first is moot because EPA has approved the relevant rules. The Regional Administrator has signed the final action final approving the rules for additional reductions, and these final actions have been or shortly will be published in the
Federal Register
. The second is moot because none of these new measures affect the motor vehicle emissions budgets. Thus the relevant criterion for approving the attainment demonstration SIP is whether or not the States and the District have submitted SIP revisions to fulfill the other relevant conditions for approval set forth in the December 16, 1999 NPR.

Of the two remaining commitments regarding the mid-course review and revision of the motor vehicle emissions budgets using the MOBILE6 model, the States and the District submitted specific enforceable commitments in the February 3 and March 22 plan documents to meet these conditions.

F. What Was the Scope of the July 28, 2000 Supplemental Notice of Proposed Rulemaking?

On July 28, 2000, EPA published a supplemental notice of proposed rulemaking (SNPR) on the attainment demonstration (65 FR 46383). In that supplemental notice, we clarified and expanded on two issues relating to the motor vehicle emissions budgets in these SIPs:

First, we proposed a clarification of what occurs if we finalize conditional or full approval of any of these SIPs based on a State commitment to revise the SIP's motor vehicle emissions budgets in the future. Under the proposal, the motor vehicle emissions budgets in the approved SIP will apply for transportation conformity purposes only until the budgets are revised consistent with the commitment and we have found the new budgets adequate. Once we have found the newly revised budgets adequate, then they would apply instead of the previous conditionally or fully approved budgets. Normally, revisions to approved budgets cannot be used for conformity purposes until we approve the revised budgets into the SIP. Therefore, we proposed to clarify that when our approval of these 1-hour ozone attainment demonstrations is based on a commitment to future revisions to the budget, our approval of the budget lasts only until revisions to satisfy those conditions are submitted and we find them adequate.

Second, we proposed that States may opt to commit to revise their emissions budgets 1 year after the release of the MOBILE6 model, as originally proposed on December 16, 1999. Or, States may commit to a new option, i.e., to revise their budgets 2 years following the release of the MOBILE6 model, provided that conformity is not determined without adequate MOBILE6-derived SIP budgets during the second year. This proposal did not affect the Metropolitan Washington, DC area because the District, Maryland and Virginia have submittted an enforceable commitment to revise the motor vehicle emissions budgets within one year after the official release of the MOBILE6 model.

In addition, we reopened the comment period to take comment on these two issues and to allow comment on any additional materials that were placed in the dockets for the proposed actions close to or after the initial comment period closed on February 14, 2000 (65 FR at 46383, July 28, 2000). For many of the areas, additional information had been placed in the docket close to or since the initial comment period concluded. In general, these materials were identified as consisting of motor vehicle emissions budgets, and revised or additional commitments or reaffirmations submitted by the States (65 FR at 46387, July 28, 2000).

G. What Was the Scope of the October 16, 2000 Supplemental Notice of Availability?

On October 16, 2000 EPA published a Notice of Availability and reopening of the comment period (65 FR 61134).

This notice was in regards to an analysis to evaluate emission levels of oxides of nitrogen ( NO
X
) and volatile organic compounds (VOC) and their relationships to the application of current and anticipated control measures expected to be implemented in four serious one-hour ozone nonattainment areas. This analysis was done to determine if additional reasonably available control measures (RACM) are available after adoption of Act required measures for the following serious ozone nonattainment areas: Greater Connecticut; Springfield, Massachusetts; Washington, D.C.-Virginia-Maryland; and Atlanta, Georgia. The EPA performed this analysis in response to comments that were submitted on the proposals on these areas' one-hour ozone attainment demonstrations. The EPA took action to propose approval (and disapproval in the alternative) of these areas' State implementation plans (SIPs) on December 16, 1999 (Greater Connecticut (64 FR 70332); Springfield (64 FR 70319); Metropolitan Washington (64 FR 70460); and Atlanta (64 FR 70478)). This information supplemented the December 16, 1999 proposals.

H. When Did EPA Make a Determination Regarding the Adequacy of the Motor Vehicle Emissions Budgets for the Metropolitan Washington, DC Area?

The District, Maryland and Virginia submitted revisions to the attainment plan SIP for the Metropolitan Washington, D.C. area on February 16, 14 and 9, 2000, respectively. These revisions contained revised motor vehicle emissions budgets for the attainment year of 2005 with a list of control measures that, when implemented, would be expected to provide sufficient additional emission reductions to ensure nonattainment area emissions in 2005 are equal to or less than the 1999 control strategy levels contained in the attainment demonstrations considering growth. On January 6, 2000, December 22, 1999, and December 28, 1999, the District, Virginia and Maryland, respectively, reaffirmed their existing enforceable commitments. The lists of measures were identified in Tables 6-1 and 6-2 of the February 3, 2000 plan document.

On March 2, 2000, a notice was posted on EPA's website commencing the comment period on the adequacy of the motor vehicle emissions budgets in these February 2000 SIP revisions for the Washington DC area. That notice also informed the public that the entire revised attainment plan submitted by the District, Maryland and Virginia had been posted by them electronically. EPA's March 2, 1999 website notice also provided a link to and the address for

the website where interested members of the public could access the attainment plan. EPA's adequacy public comment period closed on April 3, 2000. No public comments were received pursuant to EPA's March 2, 2000 posting. We did receive comments on the adequacy of the budgets pursuant to our December 16, 1999 NPR. The comments relevant to the adequacy determination of these budgets were addressed in a response to comments document portion of the technical support document prepared for the adequacy determination. The finding that the budgets of the revised attainment plan are adequate were made in letters, dated May 31, 2000, from EPA Region III to the Maryland Department of the Environment, Virginia Department of Environmental Quality and the District of Columbia Environmental Regulation Administration. In a June 8, 2000,
Federal Register
notice we announced that we had determined the budgets contained in the February 2000 submissions were adequate (65 FR 36439). These findings were effective on June 23, 2000.

These budgets included the benefits of EPA's Tier 2/sulfur rule. The District, Maryland and Virginia have an acceptable commitment to revise the attainment year motor vehicle emissions budgets using the MOBILE6 model one year after the release of the MOBILE6 model.

I. What SIP Elements Did EPA Need To Take Final Action on Before Full Approval of the Attainment Demonstration Could Be Granted?

In the NPR for the Metropolitan Washington, DC attainment demonstration SIP published on December 16, 1999, EPA noted in Tables 3 through 6 the status of many of the control measures or part D requirements of the Act for serious areas. Not all of these were approved on the date of the NPR. The following provides the status of these SIP elements:

On October 29, 1999, EPA approved Maryland's enhanced vehicle inspection and maintenance SIP (64 FR 58340).

On October 27, 1999, EPA approved the District's Non-CTG VOC RACT rule and rules for Stage II, surface cleaning and degreasing and graphic arts rule (64 FR 57777).

On December 28, 1999, EPA approved Maryland's and Virginia's national low emission vehicle (NLEV) SIPs (64 FR 72564).

On July 20, 2000, EPA approved the District's national low emission vehicle (NLEV) SIP (65 FR 44981).

On July 19, 2000, and October 6, 2000, EPA approved Maryland's and Virginia's, respectively, 15% VOC Reduction Plans (65 FR 44686 and 65 FR 59727, respectively).

On November 3, 1999, EPA approved Virginia's surface cleaning and degreasing rules (64 FR 59635).

Elsewhere in today's
Federal Register
EPA is approving Maryland's new source review regulation for the Metropolitan Washington, D.C. area.

EPA is not crediting the Virginia attainment demonstration or Post-1996 ROP plan for measures from VOC sources subject to the Non-CTG RACT or the expanded point source regulations to 25 TPY measure requirements unless source specific limits are approved into the SIP. One of the source specific rules was approved on January 22, 1999 (64 FR 3425) as well as a category specific rule covering lithographic printing operations on March 12, 1997 (62 FR 11334). The Regional Administrator of EPA Region III has signed a final action approving the remaining source specific RACT rules. That action has been or will be published shortly in the
Federal Register
.

Maryland has a state-wide Non-CTG RACT rule which statutorily had to cover 50 TPY sources in the Washington area and which Maryland lowered the applicability of the Non-CTG rule to 25 TPY. Because EPA has not finished action on all the source specific RACT determinations for other parts of the state, EPA has not fully approved the state-wide Non-CTG RACT rule. However, Maryland has submitted RACT regulations for all relevant sources located in the Washington area, and EPA has determined that Maryland is not taking credit for any RACT reductions from sources or categories of sources in the attainment demonstration or Post-1996 ROP plan for which there is not a SIP-approved RACT rule. These rules had been approved into the SIP prior to December 16, 1999. These rules covered categories such as structural steel coating, explosives and propellant manufacturing, bakeries, and other categories. Further details are documented in the technical support for this final action.

On December 14, 2000, the Regional Administrator signed a final action approving the District's NO
X
RACT rule. That action has been or will be published shortly in the
Federal Register
.

On December 15, 2000, the Regional Administrator signed final actions approving Maryland's and Virginia's NO
X
RACT rules. The Virginia final approval also included RACT determinations for Non-CTG major VOC sources. These actions have been or will be published shortly in the
Federal Register
.

On December 15, 2000, EPA approved into the SIP the Maryland's NO
X
budget rule consistent with the OTC MOU Phase II (65 FR 78416).

On December 14, 2000, the Regional Administrator signed a final action approving the District's beyond RACT rule for large NO
X
sources. That action has been or will be published shortly in the
Federal Register
.

On December 14, 2000, EPA approved into the SIP two Virginia permits that impose a 0.15 pounds of NO
X
per million BTU heat input on emissions units at two electric generating facilities in the Washington area (65 FR 78100).

On December 14, 2000, the Regional Administrator signed a final action approving the Maryland's NO
X
SIP Call state-wide rule. That action has been or will be published shortly in the
Federal Register
.

J. What Are the Clean Air Act Measures Relied on for the Post-1996 and Attainment Demonstration SIP Submission?

Table 3.—Control Measures in the 1-Hour Ozone Post-1996 ROP and Attainment Plans for the Metropolitan Washington Nonattainment Area

Control measure
Type of measure
Credited in post-1996 plan
Credited in attainment plan

Enhanced Inspection & Maintenance
Approved SIP
Yes
Yes.

Federal Motor Vehicle Control program
Federal
Tier 1
Tier 1 and 2.

NLEV
Approved SIP opt-in
Yes

Yes
1
.

Reformulated Gasoline (Phase 1 & 2)
State opt-in
Phase 1
Phase 2.

Transportation Control Measures (TCM)
Approved SIP
Yes
Yes.

Federal Non-road Gasoline Engine standards
Federal
Yes
Yes.

Federal Non-road Heavy Duty diesel engine standards
Federal
Yes
Yes.

Railroad Locomotive Controls
Federal
No
Yes.

NO
X
RACT

Approved SIP
Yes
Yes.

Non-CTG RACT to 50 tpy
Approved SIP
Yes
Yes.

VOC Point Source Regulations to 25 tons/year
2

Approved SIP
Yes
Yes.

Stage II Vapor Recovery
3
& On-board Refueling Vapor Recovery (ORVR)

Approved SIP; Federal
Yes
Yes.

AIM Surface Coatings
Federal
Yes
Yes.

Consumer & commercial products
Federal
Yes
Yes.

Autobody refinishing
Federal
Yes
Yes.

Surface Cleaning/Degreasing
Approved SIP
Yes
Yes.

Open Burning Ban
2

Approved SIP
Yes
Yes.

Stage I Vapor Recovery
4

Approved SIP
Yes
Yes.

Graphic Arts
Approved SIP
Yes
Yes.

Heavy Duty Diesel Engines (On-road)
Federal
No
Yes.

Beyond RACT NO
X
Requirements on Utilities

Approved SIP
No
Yes.

Notes:

1
To the extent NLEV not superceded by Tier 2.

2
Maryland and Virginia only.

3
Reduction credits calculated for Maryland and Virginia only. The District required implementation of Stage II in 1985 for most sources, and claimed no reductions since 1990. (The District's Stage II regulation was amended after 1990 to comply with the requirements for Stage II controls set forth in the 1990 amendments to the Clean Air Act. EPA has approved the District's rule into the SIP.

4
Reductions only in those additional areas in Maryland and Virginia that were added to the Metropolitan Washington D.C. area after 1990.

K. What Are the Conformity Budgets in the Post-1996 ROP Plans and the Attainment Demonstrations?

Table 4.—Transportation Conformity Budgets for the Washington Area

VOC (tons/day)

NO
X
(tons/day)

Post-1996 ROP Plan
128.5
196.4

One-hour Ozone Attainment Demonstration
101.8
161.8

EPA has concluded that the SIP demonstrates attainment with these budgets and contains the measures necessary to support these budgets.

L. What Happens to the 2005 Budgets When States Change Their Budgets Using the MOBILE6 Model?

All States whose attainment demonstration includes the effects of the Tier 2/sulfur program were required to revise and resubmit their motor vehicle emissions budgets after EPA releases the MOBILE6 model. On March 22, 2000, March 31, 2000, and March 31, 2000, the District, Maryland and Virginia, respectively, submitted a commitment to revise the 2005 motor vehicle budgets in the attainment demonstrations within one year of EPA's release of the MOBILE6 model. If the State fails to meet its commitment to submit revised budgets using the MOBILE6 model, EPA could make a finding of failure to implement the SIP, which would start a sanctions clock under Clean Air Act section 179.

As we proposed on July 28, 2000, the final approval action we are taking today on the 2005 attainment budgets will be effective for conformity purposes only until revised motor vehicle emissions budgets are submitted and we have found them adequate. In other words, the budgets we are approving today as part of the attainment demonstration will apply for conformity purposes only until there are new, adequate budgets consistent with the States' commitments to revise the budgets. The revised budgets will apply for conformity purposes as soon as we find them adequate.

We are limiting the duration of our approval in this manner because we are only approving the attainment demonstrations and their budgets because the States have committed to revise them. Therefore, once we have confirmed that the revised budgets are adequate, they will be more appropriate than the budgets we are approving for conformity purposes now.

If the revised budgets raise issues about the sufficiency of the attainment demonstration, EPA will work with States on a case-by-case basis. If the revised budgets show that motor vehicle emissions are lower than the budgets we are approving today, a reassessment of the attainment demonstration's analysis will be necessary before reallocating the emission reductions or assigning them to the motor vehicle emissions budget as a safety margin. In other words, the area must assess how its original attainment demonstration is impacted by using the MOBILE6 model vs. the MOBILE5 model before it reallocates any apparent motor vehicle emission reductions resulting from the use of the MOBILE6 model.

M. What Comments Were Received on the Proposed Approvals and How Has EPA Responded to Those?

EPA received comments from the public on the Notice of Proposed Rulemaking (NPR) published on December 16, 1999 (64 FR 70319) for the Washington area's ozone attainment demonstration and Post-1996 ROP plan. Comments were received from the Robert E. Yuhnke on behalf of Environmental Defense and Natural Resources Defense Council; the Midwest Ozone Group; and from the EarthJustice Legal Defense Fund (EarthJustice), on behalf of the following organizations: Virginia Chapter of the Sierra Club, Audubon Naturalist Society, Chesapeake Bay Foundation, Environmental Defense, Coalition for Smarter Growth, Washington Regional Network for Livable Communities, Piedmont Environmental Council, and Southern Environmental Law Center.

EPA also received comments from the public on the supplemental proposed rulemaking published on July 28, 2000 (65 FR 46383), in which EPA clarified and expanded on two issues relating to the motor vehicle emissions budgets in the attainment demonstration SIPs.

Comments were received from Environmental Defense.

EPA received comments from the public on the supplemental proposed rulemaking published on October 16, 2000 (65 FR 61134) to support the proposed attainment demonstration published on December 16, 1999. In that notice, EPA made available an analysis it had performed to evaluate emission levels of oxides of nitrogen ( NO
X
) and volatile organic compounds (VOC) and their relationships to the application of current and anticipated control measures expected to be implemented in four serious one-hour ozone nonattainment areas. Comments applicable to the Metropolitan Washington, DC area nonattainment area were received from the EarthJustice.

EPA received additional comments on the District's Post-1996 ROP plans for the Metropolitan Washington, D.C. area from the EarthJustice in response to the September 28, 2000 proposal (65 FR 58243) on the Post-1996 ROP plan submitted by the District, and from the EarthJustice, on behalf of the Maryland and Virginia Chapters of the Sierra Club in response to the October 19, 2000 proposal (65 FR 62658) on the Post-1996 ROP plans submitted by Maryland and Virginia.

A summary of the comments received on this action are provided in section II “Response to Comments”.

II. Response to Comments

The following discussion summarizes and responds to the comments received on all of the proposed actions summarized in section I.B. above.

A. Attainment Date Extension Policy

In these responses, EPA addresses both the comments received on this rulemaking and those received in Docket A-98-47 on its notice regarding “Extension of Attainment Dates for Downwind Transport Areas” 64 FR 12221 (March 25, 1999), insofar as here relevant. This includes responses to comments filed by EarthJustice and incorporated by reference in later comments filed on proposed EPA actions on the individual areas. General comments on the policy are considered first. Then specific comments as applied to the area are addressed.

1. Comments Received in Response to March 1999 Notice

Comment 1:
EPA does not have the legal authority to extend the attainment deadline for serious areas until hoped-for NO
X
reductions occur from upwind states in response to the NO
X
SIP Call and/or section 126 actions . Such an extension is not authorized by any provision of the statute. It is not within EPA's discretion to extend the attainment dates for downwind areas classified as moderate or serious. The Act does not authorize EPA to extend attainment deadlines. Congress provided express attainment deadlines in the Clean Air Act, and EPA is without authority to create exemptions from them. Section 181 provides the only exception to the general rule that areas must meet their attainment dates, and is the exclusive remedy. Section 181(a)(5) allows a one-year extension if the state has complied with all requirements and commitments in the applicable SIP and had no more than one exceedance in the attainment year. In section 181(a)(5), Congress provided other authority for extending attainment dates, but not to address effects of transport. See sections 181(a)(5). Section 181(b)(2)(A) requires reclassification for failure to attain by the attainment date. Section 182 requires submissions of attainment plans by the applicable attainment date. EPA's policy violates these express provisions. The statutory deadlines for attainment, the requirement that SIPs adopt measures adequate to provide for attainment by the statutory deadlines, the statutory limitation on EPA's authority to extend attainment dates under section 181(b), and the procedures to be followed in the event an area fails to attain by the deadline are unequivocal and unambiguous, and compliance is required under step one of Chevron. The extension policy is inconsistent with sections 182(b)(1)(A), 182(c)(2)(A) and 172(c)(1), which require each nonattainment area to provide for attainment and submit SIPs providing for attainment by the applicable deadline. There is no exemption from these mandates for downwind areas that can attain through local reductions, but find it difficult to do so. The EPA policy is also inconsistent with the Phoenix reclassification action, which stated that EPA had no flexibility to provide for attainment date extensions in that circumstance. In section 181(i) Congress refused to give EPA authority to extend attainment dates in light of reclassification.

Response 1:
The absence of an express provision in the Clean Air Act for an attainment date extension based on transport does not deprive EPA of the authority to interpret the Act to permit such an extension. Nor do the specific attainment date extension provisions in the statute preclude EPA's interpreting the statute to allow for an extension to account for upwind transport that has interfered with downwind attainment. This interpretation is necessary to prevent the thwarting of Congressional intent not to unfairly burden downwind areas. In various parts of the statute, Congress expressed an intent to accomplish this through provisions prohibiting transport, but these provisions failed to achieve the Congressional goal in time to allow the downwind areas to meet their originally prescribed attainment dates.

The provisions of section 182 governing reclassification also do not prohibit EPA from interpreting the Act to provide for an attainment date extension based on transport. EPA's policy of extending attainment dates for ozone nonattainment areas affected by transport of ozone and ozone precursors represents a reasonable effort to avoid the frustration of Congressional intent to which a literal application off the reclassification provisions would lead. Where a “literal reading of the statute would actually frustrate the congressional intent supporting it, [a court may uphold] an interpretation of the statute more true to Congress's purpose.”
EDF
v.
EPA,
82 F.3d 451, 468 (D.C. Cir. 1996).

In 1990, Congress established a classification scheme for ozone nonattainment areas that provided for those areas to be classified on the basis of the severity of their ozone problems and for areas with more serious problems to be given more time to attain, but also required to implement more control measures. As part of these provisions, Congress enacted the reclassification provisions under which ozone nonattainment areas that failed to attain the ozone standard as of their attainment dates were to be reclassified to a higher classification, thereby receiving an extension of their attainment date, but also being subjected to additional control requirements.
See
section 181(b)(2).

On their face, the reclassification provisions do not provide for any exemption from the reclassification process for areas affected by ozone transport from other States. However, EPA believes that, in light of developments since the enactment of the 1990 Clean Air Act Amendments, a literal application of those provisions to such areas would frustrate broader congressional intent. In this context it is important to recognize that, apart from the ozone reclassification provisions, the Act contains a provision—section 110(a)(2)(D)—that obligates upwind states to prohibit pollution—including ozone and its precursors—from sources within the state that contribute significantly to nonattainment and

maintenance problems in downwind states. Congress was cognizant of the need to control such emissions, and of the inequities between upwind and downwind sources that could result if upwind states did not impose emission controls on their sources that contribute to downwind air quality problems. Congress thus sought to establish a regime that would eliminate such inequities.

The legislative history of the 1977 Clean Air Act Amendments regarding the enactment of section 110(a)(2)(E), the predecessor of section 110(a)(2)(D), and section 126 (a provision that allows EPA to directly regulate sources that significantly contribute to nonattainment in another state) clearly demonstrates this. The Senate Committee Report criticized the lack of effective “interstate abatement procedures” and “interstate enforcement actions” under existing law, which the Committee viewed as “resulting in serious inequities among several States, where one State may have more stringent implementation plan requirements than in another State.” S.Rep. No. 95-127 at 41,
reprinted in
3 1977 Legis. Hist. 1416. It is reasonable to assume that Congress, when it enacted the ozone reclassification regime in 1990, would have expected that upwind states would have in place implemented SIP provisions that would eliminate significant contributions, as required by section 110(a)(2)(D), by the time downwind areas were obligated to attain the ozone standard. If that had happened, downwind areas that failed to attain by their attainment dates would have failed to attain as a consequence of their own failures to adopt necessary controls, not as a consequence of the failure of other states to adopt and implement controls necessary to eliminate the contribution of their own sources to the downwind area's nonattainment problem.

Such controls were not in place, however, since, as explained in EPA's transport policy, it in fact took many years for EPA and the States to gain a sufficient understanding of the interstate ozone transport problem to determine the appropriate division of control responsibilities between the upwind and downwind States under the Clean Air Act. It was only through the work of the Ozone Transport Assessment Group (OTAG), which consisted of members from states, industry and environmental groups, and EPA's subsequent NO
X
SIP Call, promulgated in October, 1998, that the division of responsibilities among the states was established. Consequently, the fruits of those efforts—the implementation of the control measures in upwind states that were needed to eliminate the significant contribution of sources in those states—would not ripen until 2003 or 2004, years after the statutory attainment dates for areas such as Springfield, MA. Moreover, because the allocation of responsibility for transport was not made until late 1998, the prohibitions on upwind contributions under section 110(a)(2)(D) and section 126 could not be enforced prior to the attainment dates of areas such as Washington, DC, Greater Connecticut and Springfield, MA. Nor could Congress intend that the upwind areas with later attainment dates accelerate the timetables provided for their own attainment as an indirect means of controlling transported pollution in the absence of data on transport impacts.

To apply the reclassification provision of section 181(b) without taking into account the timing of the identification and implementation of the emission reductions needed to eliminate the significant contribution of the upwind states to the downwind states would lead to the result that the downwind states' sources are required to implement potentially costly control measures to offset the effects of upwind state pollution—pollution that EPA has now determined must be prohibited under the Act and pollution that will soon be eliminated as a result of the NO
X
SIP Call and by emissions reductions in upwind states with later attainment dates. Imposing on downwind areas the burden of controlling for pollution attributable to upwind sources would compound the inequities that Congress was seeking to avoid with the enactment of sections 110(a)(2)(D) and 126, thereby frustrating Congressional intent. Moreover, such a result would be at odds with the kind of concerns that led Congress to adopt section 179B for international border areas—concerns that areas not be held accountable for pollution over which they exercise no control.

Section 181(b)(2) provides that EPA should determine whether an area attained the standard “within six months following the applicable attainment date (including any extension thereof).” This reference to extensions in section 181(b)(2) is not limited to extensions granted under section 181(a)(5). Nor does section 181(a)(5) state that Congress intended it to be the only source for an extension.

Moreover, section 181(a)(5) addresses only one specific type of an extension. The fact that Congress provided an extension based on air quality that is near attainment at the time of its deadline does not imply that Congress precluded the Administrator from conferring extensions based on other considerations—such as the case when air quality is affected by downwind transport. The principle underlying section 181(a)(5)—that areas should not be reclassified if they have done enough to control local air pollution but are still not able to attain—also applies in the case of downwind transport. Section 181(a)(5) shows that Congress was not unalterably opposed to extensions of attainment dates without requiring an area to be subjected to reclassification and the increased control burdens that go with reclassifications. Indeed, section 181(a)(5) indicates that Congress wanted to extend attainment dates without adding control obligations when an area had done what was apparently sufficient to bring it into attainment.

The United States Court of Appeals for the District of Columbia Circuit has previously held that EPA may extend SIP submission deadlines even without explicit statutory authorization. In
Natural Resources Defense Council, Inc.
versus
EPA,
22 F.3d 1125, 1135-36, the Court upheld EPA's extension of a statutory deadline for submission of NO
X
rules and a NO
X
exemption request under section 182(f). Although the Court did not use the theory advanced by EPA, the court did find that the Agency had authority under the CAA to extend the deadline. EPA had found that additional time would be needed for States to conduct photochemical grid modeling in order to document the effects of NO
X
reductions on an area. EPA had found that “the time needed to establish and implement a modeling protocol and to interpret the model results will, in a variety of cases, extend beyond the November 15, 1992 deadline for submission of NO
X
rules.” EPA thus extended the submission deadline, provided the states could show that modeling was not available or did not consider effects of NO
X
reductions and that the states submit progress reports on the modeling. The DC Circuit upheld EPA's extension of the deadline and of EPA's time to review the submissions and make an exemption determination. The Court found that “because only a single NO
X
RACT submission is required under the statute, it is logical to infer that Congress intended data supporting exemptions to be included in that submittal and that the EPA have the full 14-18 months to review them and to make an exemption determination.” Even in the absence of explicit statutory authority, the Court held that “had Congress foreseen the

exemption timing problem, a matter outside the EPA's control, it would have elected to accord the EPA the full statutory review time.” 22 F.3d at 1136. The court ruled that “under the circumstances here the NO
X
RACT deadlines were properly extended to further the Clean Air Act's purposes.”
Id.
At 1137.”

Here, similarly, EPA's and the states' inability, until the OTAG and NO
X
SIP Call process was completed, to document the impacts of upwind areas on the attainment status of downwind areas, and to assess and allocate responsibilities among the areas, caused a delay in meeting the attainment deadlines. EPA believes that, had Congress foreseen this timing problem, it would have elected to accord the states and EPA more time to meet the attainment deadlines without imposing reclassification requirements on downwind areas. As in the case of the delayed photochemical grid modeling needed for the NO
X
submissions at issue in
NRDC
versus
EPA,
EPA has shown that the ability to document and analyze ozone transport was delayed. And as with the criteria imposed on areas seeking NO
X
submission extensions in
NRDC,
EPA has required analogous showings by the states, limiting the extensions to those areas that document a transport problem and that submit attainment demonstrations and adopt local measures to address the pollution that is within local control.

As for Section 182(i), it has no bearing on the authority of the Administrator with respect to the attainment date extensions at issue here. Section 182(i) applies to the authority of the Administrator
after
an area has been reclassified, and relates to the setting of an attainment date for the reclassified area. It does not apply to an area that is not being reclassified, but rather is being granted an extension of its attainment date that effectively defers the applicability of the reclassification provisions. Here, EPA is authorizing an attainment date extension to relieve an area from reclassification requirements, and thus 182(i) does not apply. The section explicitly applies to an area that has already been reclassified, and indicates nothing about the authority of the Administrator to extend an area's attainment date prior to a determination that the area must be reclassified. Nor does section 182(i) indicate Congressional intent to deny EPA authority to interpret the Act consistently with provisions designed to prevent downwind areas from being forced to compensate for upwind pollution.

Comment 2:
The Act does not authorize EPA to extend the time for implementation of adopted local control measures. EPA's approach allows downwind areas to defer implementation of local measures until the extended attainment deadline, thereby precluding any determination that the local measures have achieved the degree of emission reduction necessary to provide for attainment when the upwind sources are controlled. EPA unlawfully proposes to allow attainment date extensions for downwind areas to implement local control measures. Under sections 182(b)(l), 182(c)(2)(A), and 172(c)(1), downwind areas must provide for attainment of the NAAQS, and EPA unlawfully seeks to lessen these statutory obligations.

Response 2:
As explained in Response 1, above, EPA's attainment date extension policy aims to effectuate, not frustrate the intent of Congress, by providing for an equitable allocation of responsibilities between upwind and downwind areas. Under EPA's interpretation, when an upwind area interferes with a downwind area's ability timely to attain the standard, the downwind area retains the obligation to adopt all applicable local measures, and to implement them as expeditiously as practicable, but no later than the date by which the upwind reductions needed for attainment will be achieved. Moreover, EPA requires that the area submit an approvable attainment demonstration containing any necessary, adopted local measures and showing that, assuming the appropriate upwind emission reductions, the area will attain the 1-hour standard no later than the final NO
X
SIP Call and/or the upwind area's attainment date. Thus both the upwind and downwind areas are held accountable for their respective shares of the emissions reductions required to achieve attainment in the area. EPA views this coordination of the responsibilities of the upwind and downwind areas not as a lessening of the statutory obligations, but as a reconciliation of them with the reality of air transport as we have come to understand it, and with the intent of Congress that areas make expeditious progress towards attainment without sacrificing basic principles of fairness. The attainment date extension policy thus will still lead to attainment as expeditiously as practicable, taking into account the upwind contribution. Indeed, given the impact of upwind areas' contributions and the need for upwind area emissions reductions, requiring local contributions earlier would not accelerate attainment, considering that EPA is requiring downwind areas to implement local controls as expeditiously as practicable. Moreover, the difficulty of assessing relative contributions and responsibilities of upwind and downwind areas until the completion of the OTAG effort and the NO
X
SIP Call lends support to extending attainment deadlines in these circumstances, even without express statutory permission. See
NRDC
versus
EPA,
discussed supra, in Response to Comment 1.

Comment 3:
Reclassification alone has no immediate or mandated regulatory consequence. A SIP revision can consist of a showing that attainment will result from implementation of emission reductions already required pursuant to the SIP Call. EPA's Extension Policy is inconsistent with Clean Air Act sections 179 (c) and (d). This provision does not require additional local control measures beyond those previously approved implemented by the State if adequate control measures have been adopted for upwind areas and are in the process of being implemented.

Response 3:
Reclassification does impose regulatory consequences. Section 182(i) requires that “each state containing an ozone nonattainment area reclassified under section 181(b)(2) shall meet the requirements of subsections (b) through (d) of this section as may be applicable to the area as reclassified.” Thus the area must meet the more stringent requirements of a higher classification, including new source review offsets and changes in cutoffs for permitting. The provisions of section 181(b) apply to reclassification of ozone areas. Sections 179 (c) and (d) do not apply to ozone areas that are classified as marginal, moderate, or serious, which are subject to the requirements of section 181, if EPA determines that they failed to attain the ozone standard as of the applicable attainment date pursuant to that section.

Comment 4:
Sections 176 and 184 of the Act do not support EPA's extension policy. Congress left no room in the statute for attainment date extensions for downwind areas, considering instead the additional recommended OTC control measures for upwind areas to be sufficient. Sections 110(a)(2)(D)(i)(1) and 110(a)(2)(A) do not authorize the EPA policy. Section 110(a)(2)(D) imposes a burden only on upwind states and does not relieve downwind states of their obligation to attain by the pre-set attainment dates. EPA lacks the authority to rewrite the extension authority Congress wrote into sections 181 (a)(4) and (b)(3). Congress was well aware of the transport problem

and addressed it in explicit provisions, including section 110(a)(2)(D), section 110(a)(2)(A), section 184, section 176A, section 126, section 182(h), and section 181(a)(4). Thus Congress knew how to address pollutant transport and how to draft an attainment date extension addressed to it when it wished to do so. It also provided for voluntary reclassification under section 181(b)(3) to be available for downwind areas that are affected by transport. Congress dealt with transport explicitly in sections 181(a)(4), 182(h) and 182(j)(2). Congress knew how to exempt transport-affected areas from control requirements if it wanted to, as it did for rural transport areas under section 182(h). Congress limited relief for areas subject to transport to exemption from sanctions, but did not extend this to section 110(c) FIPs. H.R. 101-490, at 248. This shows Congress' intent to apply all of the Act's enforcement tools except for sanctions under section 179. Congress considered the effects of transport, but not in the reclassification context. Congress did provide for attainment date extensions, but not in this context.

Response 4:
Having crafted provisions in the 1990 Amendments that it believed would be adequate to address the problem of downwind nonattainment, Congress did not expressly provide for an attainment date extension based on transport. But the absence of such a provision does not prevent EPA from inferring that Congress would have intended to provide such relief should the express provisions fail to function as envisioned. In fact, the manner in which Congress did address the issue of transport shows that EPA's interpretation is consistent with Congress' approach in other sections of the Act. EPA's interpretation resolves the problem that arose when the express statutory tools failed to function as Congress had envisioned. It also, as EPA pointed out in its guidance, 61 FR 14441 (March 25, 1999), provide a means to reconcile the attainment demonstrations and attainment date requirements for downwind areas with the graduated attainment date scheme and schedule for achieving reductions in the upwind areas. Although Congress intended that upwind areas be responsible for preventing interference with downwind areas' attainment dates, it also expressly allotted more time for certain upwind areas to reduce their emissions so as to attain the standard.

Sections 110(a)(2)(D), 126, 184 and 176, provide principles for dealing with transport, most importantly the principle that upwind areas be held accountable for reducing emissions that interfere with the ability of downwind areas to attain the ozone standard. EPA disagrees with commenters that Congress intended section 110(a)(2)(D) and the other transport provisions to exclude the possibility of relief for downwind areas even if no timely and adequate recourse against transport was in fact available to them. These sections express Congressional intent that downwind states not be saddled with responsibility for pollution beyond their control. Their premise was that there would be a means of redress against upwind states prior to the downwind area's attainment date—a means that also would not be at odds with Congress' decision to provide longer attainment periods for upwind areas confronting onerous pollution problems. But, as EPA pointed out in its guidance, there was in fact no practicable way to carry out the Congressional scheme until a much more comprehensive understanding of the complex facts of ozone transport could be achieved.

Although Congress in the 1990 Amendments and in prior versions of the Clean Air Act attempted to deal with the issue of transport, the reality of the problem proved far more complicated and intractable than expected. As explained in EPA's guidance, 64 FR 14441 (March 25, 1999), it took many years for EPA and the states to study, analyze, and attempt to resolve the allocation of responsibility for transported ozone pollution. EPA's initial efforts included a policy memorandum addressing the issue of overwhelming transport in 1994. The Ozone Transport Assessment Group was launched in 1995. Through this collaborative process, EPA, 37 states and industry and environmental groups tackled the problem of allocating responsibility for transport in its Overwhelming Transport Policy. During the period required for this effort, the resolution of regional transport issues was held in abeyance. It was not until late in 1998 that the conclusion of the OTAG and SIP Call processes resulted in assignments of responsibility that could assist in the design of SIPs and the formation and implementation of attainment demonstrations. 63 FR 57356 (Oct 27, 1998) (NO
X
SIP Call Rule). In May 1999, these efforts were reinforced when EPA approved petition submitted under Clean Air Act section 126 by northeast states to mandate federal controls on utilities and other large NO
X
emitters in upwind States. 64 FR 28250 (May 27, 1999) (Section 126 Rule). A more detailed description of the history of efforts to address ozone transport through the 1990's may be found in the preambles to these rulemakings. 63 FR 57360-63, 64 FR 28253-54.

Even after the NO
X
SIP Call rulemaking was complete, it was temporarily placed in doubt when the Court stayed the SIP Call rule pending judicial review. The court has ordered NO
X
SIP Call SIPS to be submitted by October 30, 2000, and to require sources to implement controls by May 31, 2004.

Thus, although Congress in the Clean Air Act had formulated a prohibition on transport interfering with downwind attainment, it remained largely theoretical until EPA and the states could understand how to identify, quantify, and analyze the transport of emissions, and develop regulatory means to coordinate the respective responsibilities of a multitude of upwind and downwind areas. Although Congress endowed EPA and the states with legal tools to protect downwind areas from interference with attainment, it did not give them the ability to use the tools in the time frame anticipated by Congress. By the time EPA and the states gained an understanding of regional transport sufficient to allow enforcement of the provisions of the Act, it was too late to help some downwind areas meet their attainment dates. Thus it is spurious to argue that EPA and the States could have sought and obtained meaningful relief earlier under section 126 and section 110.

The fact that upwind states are subject to the requirements of section 110(a)(2)(D) but other countries are not provides a possible explanation as to why Congress explicitly provided that ozone nonattainment areas not be reclassified upwards if they would have attained by their attainment dates “but for emissions emanating from outside” the United States (section 179B(b)) but provided no such express exemption from the reclassification provisions in the case of domestic transport. See IV 1990 Legis. Hist. 5741-42 (remarks of Sen. Gramm introducing the international provision and Sen. Baucus supporting it; Senator Gramm stated: “It is unfair to hold El Paso accountable for pollution that is generated in a foreign country that they have no control over. So what this amendment does it says that in assessing whether or not the State implementation plan has been met, and when assessing the levels of ozone * * * pollution that is being generated across the border has to be taken into account so that our cities and regions will be judged based on what they do. * * * [The State, region and city] will have the opportunity to come to EPA and say that they are in compliance in terms of their emissions, that their failure to meet the overall

standards is due to something that is happening in a sovereign foreign country over which they exercise no control.” Senator Baucus stated that, “It is clear that cities like El Paso in the State of Texas do not have control of their own destiny themselves. Much of the air that affects them is from outside, from another country, over which the Senator said the State of Texas and EPA in this country has virtually no control.”). Congress assumed that EPA would have control over domestic transport under section 110(a)(2)(D), so it saw no need to enact a domestic counterpart to section 179B. As set forth in EPA's responses and the history of EPA and the states' efforts to understand and control transport, Congress' assumptions were not realized.

As set forth in Response 1 above, Congress intended, through enactment of the provisions addressing transport cited by commenters, to prevent downwind areas from being held accountable for pollution over which they exercise no control. Because of the complexity of the transport problem, EPA and the states could not deploy these statutory provisions in time to achieve attainment by their original attainment dates. But this does not mean that Congress would have intended EPA to construe the very provisions designed to protect downwind areas as precluding EPA from interpreting the statute to provide the relief that those provisions failed to furnish. Notwithstanding the absence of an express provision for an attainment date extension based on transport, EPA believes that, taking into account the Act read as a whole, Congressional intent supports EPA's interpretation of an attainment date extension in the circumstances presented here.

Commenters argue that the fact that Congress formulated various provisions addressing certain specific types of issues concerning transported pollution, but did not provide for an explicit attainment date extension based on transport, should be taken as proof that Congress meant to preclude such relief. But each of the provisions cited by commenters—to sections 181(a)(4), 182(h) and 182(j)(2)—was designed to address a different problem from the one EPA addresses here, and none undermines EPA's interpretation that Congress intended to provide relief in the situations currently confronted by downwind areas. As shown in EPA's previous responses, Congress expressed its intent in the transport sections to protect downwind areas from the burdens of transported pollution, but the mechanisms it provided could not be invoked in time.

As for the sections referenced by commenters, Section 181(a)(4) concerns the potential for adjustment of the original classification of an area if its design value is within a certain margin. It allows the Administrator to consider a number of factors, including among them transport. This provision in no way casts doubt on the Congressional intent not to penalize downwind areas through mandatory reclassification should they later fail to attain the standard due to transport. Section 182(h) provides a mechanism for original classifications of rural transport areas as marginal areas, the lowest level of ozone nonattainment areas. Far from indicating that Congress did not intend relief for areas that are victims of transport, this provision reflects Congressional concern with not burdening areas with responsibility for transport not of their making. It sheds no light on whether Congress would have intended EPA to reclassify areas suffering from transported pollution if they were subsequently unable to meet their attainment dates.

Nor, as commenters suggest, would so-called “voluntary” reclassification under section 181(b)(3) furnish an adequate remedy for the situation confronting areas that fail to attain due to interference from transport. An area that felt constrained to seek “voluntary” reclassification would still be forced to subject itself to more stringent requirements to control local pollution in lieu of imposing on upwind areas the responsibility for the transport they caused.

Comment 5:
The states had power to timely submit SIPs controlling local pollution to the full extent that it was in the state's power to require, and combine it with a request to EPA to invoke EPA's authority to control upwind pollution, and in this way the state could have attained by the applicable deadline. EPA's 1994 overwhelming transport policy required transport modeling to be documented the same time as the attainment demonstration due in 1994. There is no justification for allowing states to request attainment date extensions based on transport of which they were aware many years ago. An opening is created for upwind states to argue that the NO
X
SIP Call effectively accelerates their attainment dates. The OTC was to recommend measures to bring about attainment by the deadlines “in this subpart.”

Response 5:
As pointed out in EPA's Response 4, above, an awareness that transport was occurring is not equivalent to an ability to identify, analyze, and control the emissions that cause it. This ability, which grew out of years of study and joint effort, did not coalesce until late in 1998. Thus, downwind states were faced with the prospect of having to shoulder responsibility for pollution not of their making—a responsibility that Congress did not intend to impose on them, even as they were aware of an ongoing effort, involving EPA and thirty-seven states, to allocate responsibilities for transport through the OTAG process. As EPA stated in its guidance on the attainment date extension, the state of knowledge about and the ability to document and model transport has advanced considerably since the issuance of EPA's overwhelming transport guidance. The commenters seek to ignore the climate of uncertainty in which states and EPA were operating with respect to controlling transported pollution. Section 110(a)(2)(D) and 126 are not self-executing, and until the culmination of the OTAG process, downwind areas in the OTAG region could not determine what boundary conditions they should assume in preparing attainment demonstrations and determining the sufficiency of local controls to bring about attainment. Meaningful relief under these provisions simply was not available earlier.

But even with the allocation of responsibilities now available, EPA believes that Congress did not intend to accelerate the obligations of upwind states so that downwind states can meet earlier attainment dates. This would undermine the objective, firmly embodied in the graduated attainment framework of the Clean Air Act, to allow upwind areas with more severe pollution longer attainment deadlines . Upwind areas with later attainment dates still find it difficult to reduce emissions solely to control for transport without accelerating the time frames intended by Congress. It is unrealistic to expect upwind areas to be able to segregate out the reduction of emissions for purposes of transport from the reduction of emissions for purposes of achieving attainment in the upwind area.

The fact, as a commenter points out, that Congress envisioned that the OTC-recommended measures would bring about attainment by the dates “in this subpart” reflects Congress” over optimistic view that transport would be understood and controlled in time to allow upwind areas to be held accountable for their contributions to downwind nonattainment. The comment underscores that Congress expected upwind reductions to take place by the time the downwind area

was supposed to attain—this confirms that Congress expected that upwind pollution would be controlled prior to downwind attainment deadlines, and that only local pollution would remain as the downwind area's responsibility. But, as we previously stated, the time line for analyzing and assessing transport, and the resulting ability to implement appropriate measures to control upwind pollution, did not keep pace with Congress's expectations. EPA is extending attainment deadlines in order to allow upwind areas to assume responsibility for the pollution they generate and that is transported across State boundaries, and to fulfill the Congressional intent that downwind areas not be saddled with this burden.

Comment 6:
EPA's decision directly conflicts with
NRDC
v.
EPA,
22 F.3d 1125 (D.C. Cir. 1994), where the Court held that EPA could not extend a clear statutory submission deadline.

Response 6:
To the contrary, EPA believes that
NRDC
v.
EPA
supports EPA's authority to issue the attainment date extensions at issue here. In that case the U.S. Court of Appeals for the DC Circuit upheld EPA's extension of SIP submittal deadlines even though such extensions were not expressly permitted by the Clean Air Act.
See
the discussion in Response to Comment 1, above. The Court relied in part on the need for additional time to undertake photochemical modeling to document the impact of NO
X
reductions on individual areas, an effort that took more time than Congress anticipated. Here, the effort to document, model, and analyze regional ozone transport issues and assess responsibility for relative contributions is, if anything, more complex than the NO
X
exemption showings for which the Court upheld deadline extensions in
NRDC
v.
EPA.
The Court's reasoning in
NRDC
v.
EPA
should be fully applicable to the policy at stake here.

Comment 7:
A commenter concedes that “EPA's delay in establishing the mandatory emission reduction targets for upwind States might justify the delay in adoption of adequate section 110(a)(2)(D) measures by the upwind states,” but concludes that the delay “cannot justify delaying the obligation of downwind States to implement all the local measures necessary for attainment by the statutory deadline.” One commenter, while acknowledging that it “does not take issue with EPA's objective of accommodating the delayed control contributions from upwind areas,” contests EPA's claim of authority to extend attainment dates. This commenter suggests that the appropriate remedy is for EPA to authorize states to take credit for mandated emission reductions when preparing attainment demonstrations and determining the degree of local controls needed to attain.

Response 7:
While the commenter recognizes that there was a delay in understanding and regulating transported pollution that “might justify the delay” in upwind states adopting section 110(a)(2)(D) measures, and agrees with EPA's objective in taking this delay into account, the commenter's proposed solution fails to address the problem it acknowledges. The commenter suggests allowing areas to take credit when they prepare their attainment demonstrations—but this solution addresses only the planning requirement, and does not assist the areas in solving the problem of failing to meet their attainment deadline. It is to address this issue, and to effectuate Congressional intent to avoid penalizing downwind areas in these circumstances, that EPA has formulated the attainment date extension. The delay in ascertaining the amount and achieving the reality of upwind reductions—a delay conceded by commenters—resulted in uncertainty in a downwind area's ability not only to plan for attainment, but to realize it.

This comment also highlights the difficulties that EPA's attainment date extension policy was designed to address: namely that the states and EPA were (1) not able to assess relative contributions until it was too late to implement the controls to bring about attainment; and (2) upwind areas with longer attainment dates should not be required to accelerate their reductions in time to help bring about attainment as scheduled in affected downwind areas with earlier attainment dates. As the policy explains, the determination of relative upwind and downwind contributions and the allocation of responsibility for determining controls did not occur in time for a number of areas to meet their attainment deadlines.

Comment 8:
EPA's approach allows emission reductions from motor vehicles to be deferred beyond the deadlines currently required by the Act. The policy allows deferral of conformity budgets beyond the statutory attainment year. It is also inconsistent with statutory requirements for reasonable further progress in section 182(c)(2)((B), for implementation of all reasonably available control measures as expeditiously as practicable in section 172(c)(1), and for requiring that transportation plans and TIPs “will not delay timely attainment of any standard or ... other milestones in any area in section 176(c)(1).”

Response 8:
EPA disagrees with the commenter that the policy allows deferral of motor vehicle emission reductions and reasonably available control measures beyond dates contemplated in the Act. The statute requires SIPs to provide for attainment as expeditiously as practicable and for reasonable further progress as necessary to provide for attainment. The motor vehicle and RACM measures the commenter is apparently referring to are not specific measures that the statute requires to be implemented by a fixed date. Rather, they are whatever motor vehicle and RACM measures are necessary to provide for attainment and RFP by the applicable attainment date. Thus, whatever attainment date is applicable, either by virtue of the statute or an attainment date extension, defines the outside date by which motor vehicle and RACM measures necessary to provide for timely attainment must be implemented. A determination must then be made whether any additional measures could advance that date, but the analysis is keyed to the established attainment date. The commenter also complains about delays in establishing budgets for conformity purposes, and requirements that transportation activities not delay timely attainment. Again, these issues are not relevant to establishing an appropriate attainment date. Motor vehicle emission budgets for conformity purposes are those budgets that are established for the attainment year. The Act does not require that these budgets be set for any specific year, but rather contemplates that they will be established for the attainment year. Where EPA has properly determined that an attainment date extension should be granted, conformity budgets are required for the extended attainment year; they are no longer required for the superseded attainment year. The requirement that transportation activities not delay timely attainment is a duty imposed on transportation planning agencies to insure that their activities will not interfere with attainment of the standard by the applicable attainment date. This duty is irrelevant to establishing the appropriate attainment date in the first instance. Once an applicable attainment date is established, transportation planners must insure that their activities will not delay attainment by that date.

Comment 9:
A commenter argues that under the terms of section 188(e), an extension of the PM attainment date may not be granted unless the State demonstrates that the area's SIP contains “the most stringent measures that are included in the implementation

plan of any State or are achieved in practice in any Sate, and can feasibly be implemented in the area.” Moreover, section 188(e) provides for consideration of transboundary emissions from “foreign countries,” not from U.S. sources. EPA's proposed ozone nonattainment extension policy includes neither of these limitations.

Response 9:
The provision cited by commenters applies the PM-10 standard, and is not applicable to attainment dates for ozone. Moreover, the regulatory regimes applicable to ozone and PM-10 are quite different, as are the types of transport issues that arise with respect to these two different pollutants. The issues EPA and the states confront with respect to long-range regional transport of ozone do not apply to PM-10. Beyond that, section 188(e) embodies a standard of “ impracticability” as a basis for seeking an extension for a PM-10 attainment deadline. With respect to the ozone attainment deadlines at issue here, EPA is not granting extensions solely on the grounds of impracticability of attaining the standard, but rather, that Congress intended both upwind and downwind areas to have an opportunity to bear the responsibility for their respective contributions to an area's attainment problems.

Comment 10:
EPA's effort to “manufacture a conflict” between the statutory deadlines and transport provisions fails, since these provisions must be read together so that the upwind area's “obligation to control pollution affecting the downwind area—be it interstate or intrastate—falls due no later than the downwind area's attainment date.” EPA's argument that areas with longer attainment dates be given additional time ignores the statutory requirement that areas attain as expeditiously as practicable, even if that results in attainment before section 181(a)(1)'s outer deadlines. The section 181 attainment deadlines are “outside limits.” A commenter argues that Section 181(a) does not prevent upwind areas from abating pollution in downwind areas in time to meet the downwind area's attainment date. EPA's policy cannot be defended as necessary to reconcile 181(a) with the Act's anti-transport provisions. Upwind areas should be able to control pollution contributing to downwind area's nonattainment even before reaching their own later-prescribed attainment dates.

A commenter disputes EPA's interpretation of the language in section 110(a)(2)(D)(1) that SIP provisions prohibiting emissions which cause transport be “consistent with the provisions of this subchapter.” EPA should interpret the provisions to respect the attainment schedules of sections 181 and 182, and address transport separately. No reference is made to any legislative history that would legitimize EPA's reading. An upwind area's obligation to control transported pollution does not depend on its own timetable for attainment. EPA's policy excuses upwind area's responsibility from their obligations under sections 110, 176A and 184, exempting them via granting extensions to downwind areas. The policy defers downwind action until the upwind area attains.

EPA improperly assumes that it would not be practicable for upwind sources to reduce emissions contributing to downwind nonattainment prior to the time such reductions would be required to attain in the upwind area. The presumption should be precisely the opposite: unless the upwind state can show that such reductions are impracticable, EPA should assume such reductions can be made at times to eliminate the upwind state's contribution to nonattainment downwind by the downwind area's attainment date. EPA's rule eliminates the Act's requirement that attainment be accomplished as expeditiously as possible. Section 184 indicates Congressional intent that upwind areas make reductions if necessary to permit downwind areas to attain by their statutory deadlines.

Response 10:
EPA disagrees with the commenter's contention that it has “manufactured a conflict.” Rather, EPA believes that it recognizes and resolves the real tension between the statutory deadlines and the transport provisions. EPA explained this tension in its guidance on the attainment date extension policy. See also EPA's response to Comment 4. Congress did not intend that areas with more severe pollution problems, and accordingly longer attainment dates, be forced to accelerate reductions on a timetable that otherwise would not be deemed to be required in order to meet their obligation to attain “as expeditiously as practicable.” Commenters want EPA to read the requirement for upwind areas, not as containing the limitation that their attainment deadline be “as expeditiously as practicable”—but instead, to require deadlines that are not practicable solely for the purpose of obtaining downwind reductions.

In dealing with ozone, a regional pollutant, an upwind nonattainment area cannot make reductions for transport purposes without affecting its schedule for making reductions for attainment purposes. Compelling the upwind area to make drastically faster reductions is akin to asking it to go on a crash diet. But the interplay of the statutory provisions on attainment deadlines and transport reduction indicates that Congress intended upwind areas to reduce transport, but not to the extent of requiring shorter schedules for upwind attainment.

Separating out reductions for purposes of attainment and those for the purposes of transport is more difficult than commenters depict, and EPA believes that Congress did not intend a regimen of drastic reductions without regard to the upwind area's attainment schedule. In reality, an upwind area that remains in nonattainment may doubtless be shown to continue to transport pollution to an affected downwind area.

Congress provided statutory tools to address the issue of transport (including sections 184, 126, and 110(a)(2)(d)), and believed that they would be used to reach an accommodation among upwind and downwind areas—but as EPA and some commenters have recognized, this accommodation took longer than anticipated. Congress did not, however, intend that upwind areas be forced to apply draconian measures in order to allow the downwind areas to meet their shorter attainment periods.

And although the attainment deadlines can be looked at as “outside limits,” they in fact represent the dates at which statutory consequences must be considered. As long as no earlier date is deemed to be “as expeditiously as practicable,” there is no evidence that Congress considered an earlier date to be acceptable for these areas, regardless of “practicability.” Even if earlier deadlines would be beneficial to downwind areas, Congress did not indicate that this criterion should override the criterion of “practicability” for the upwind area.

In administering the Clean Air Act and the NO
X
SIP Call, EPA has interpreted section 110(a)(2)(d)'s significant contribution test as requiring reductions as expeditiously as practicable without requiring upwind areas to impose draconian measures. The United States Court of Appeals for the District of Columbia Circuit recently upheld EPA's use of a cost component in applying that section's significant contribution test.
Michigan
v.
EPA,
213 F.3d 663, 674-679 (D.C. Cir 2000). EPA decided that the states that were “significant contributors” under section 110(a)(2)(D) need only reduce their emissions by the amount achievable with “highly cost-effective controls.” 63 Fed. Reg. At 57,403. “Thus, once a state

had been nominally marked a “significant contributor,” it could satisfy the statute,
i.e.,
reduce its contribution to a point where it would not be ‘significant’ within the meaning of section 110(a)(2)(D)(i)(I) by cutting back the amount that could be eliminated with ‘highly cost-effective controls.’ ” 213 F.3d at 675.

In applying section 110(a)(2)(D), the D.C. Circuit concluded that EPA can consider not only air quality impacts, but also costs of control. Thus EPA has been upheld in interpreting the Act in a way that limits the upwind area's responsibility to control pollution so as to mitigate its responsibility under section 110(a)(2)(D). The upwind area should not have to impose draconian controls. As the Court in
Michigan
v.
EPA,
213 F.3d 663, 674-679 (D.C. Cir. 2000) concluded, “there is nothing in the text, structure, or history of section 110(a)(2)(D) that bars EPA from considering cost in its application.” 213 F.3d 679. The Court's discussion makes clear that EPA, in interpreting the responsibilities of upwind states under section 110(a)(2)(D), may consider differences in cutback costs in determining what constitutes a significant contribution, and that EPA's inquiry is based on balancing a number of considerations to balance health effects and cost-effectiveness.

EPA's policy does not excuse the upwind areas from fulfilling their obligations under section 110. Upwind areas will be held to section 110 and RACM requirements. EPA has determined the upwind areas' section 110 obligations through the SIP call. The SIP call requires reductions by the date EPA determined was as soon as practicable to eliminate significant contributions to downwind areas.
1,2

This is coupled with the upwind area's obligation to attain as expeditiously as practicable. It is appropriate to hold downwind areas to the upwind area's attainment date as an outside limit until EPA acts on the upwind area's attainment demonstration. The modeling evidence we have now shows that upwind areas need to come into attainment for the downwind areas of Metropolitan Washington, DC and Greater Connecticut to attain the standard.

1,2
Because the D.C. Circuit stayed the obligation of States to submit plans by 13 months, the court also extended by 13 months the date by which sources must implement the necessary controls.

Comment 11:
The section 182(j)(2) “but for” standard applies to intrastate transport. An area must demonstrate that it would have accomplished attainment but for the failure of other areas to implement sufficient controls. The policy is vague, and fails to establish clear standards for a showing of transport. The “affected by transport” standard is unclear.

Response 11:
EPA is not constrained by the section 182(j)(2) standard. This section is limited in application to single nonattainment areas that are located in more than one state, and does not address transport coming into an area from another, separate area. Our determinations in the SIP call were clear, and the modeling that resulted from the SIP call effort showed that there were significant impacts from upwind areas on the downwind areas, no matter whether one used as a standard the “but for,” “significant contribution” or “affected by transport” formulation. Congress intended that an upwind area that significantly contributes to a downwind area's nonattainment problem should bear responsibility for that pollution. The modeling shows that significant contributions are made by the upwind areas to the downwind areas seeking attainment date extensions. EPA still believes that Congress would not have intended to impose the burden on downwind areas for an upwind area's contribution.

Comment 12:
Transport is already incorporated into each area's section 181 design value and thus is assumed in setting the projected attainment date. Congress understood transport resulted in elevated design values, but did not authorize classifications to take into account transport, and provided for reclassification by operation of law based on air quality. In section 181(a)(1), Congress directed that ozone nonattainment areas be placed within certain classifications based solely on their design values, regardless of transport. Congress understood that many areas were classified as moderate or severe at least in part because of ozone transport, but did not grant EPA discretion to take such transport into account when establishing initial classifications under the Act. Why does EPA believe so strongly that its approach is consistent with congressional intent, given congress's refusal to consider transport in establishing the initial classifications and in light of sections 181(b)(2) and 182(i)?

Response 12:
The fact that the provisions governing the initial classification process expressly take transport into account in a specific way—see section 181(a)(4)—does not mean that EPA is precluded from taking transport into account when providing for an attainment date extension based on transport, prior to invoking the reclassification provisions. See EPA's Response to Comment 1. By providing for an extension of the attainment date, EPA is effectuating Congressional intent that the transport relief provisions have a chance to take effect before EPA has an obligation to determine whether the area has attained for purposes of triggering the reclassification provisions.

Comment 13:
EPA has previously concluded that reclassification is not a means of penalizing an area, but a means of providing additional reductions that will benefit public health. EPA rejected the notion that bump-up is a penalty when it reclassified the Phoenix, Arizona area from moderate to serious. There, EPA said:

The classification structure of the Act is a clear statement of Congress's belief that the later attainment deadlines afforded higher-classified and reclassified areas require compensating increases in the stringency of controls. The reclassification provisions of the Clean Air Act are a reasonable mechanism to assure continued progress toward attainment of the health-based ambient air quality standards when areas miss their attainment deadlines and are not punitive.

Final Rule, 62 Fed. Reg. 60001, 60003 (Nov. 6, 1997). Phoenix NFR. Why has EPA changed its mind about the functions of reclassification?

Response 13:
EPA has not changed its mind about the function of the reclassification provision where the issue of transport is not presented. In the context of Phoenix, a reclassification not involving transport, EPA made the response cited by commenter, and noted that the reclassification provision was not intended to be punitive. This view is consistent with the position that EPA takes here, where the circumstances are quite different from the non-transport reclassification context. In the absence of transport, an area that fails to attain by its attainment date, may still fairly be held accountable for controlling local pollution, and be granted a longer attainment deadline in return for more stringent controls. Under these circumstances, applying the reclassification provisions is not punitive. But in the circumstances EPA and the states confront here, the local area is not responsible for pollution that interferes with its ability to meet the standard. In such a case, to trigger reclassification would impose on the area the responsibility and costs for pollution beyond its control, and would indeed be punitive. To avoid such a result, and to effectuate Congressional

intent, EPA has interpreted the Act to authorize an attainment date extension.

Comment 14:
Congress directly considered and rejected EPA's interpretation of its attainment date extension authority during the Clean Air Act Amendments of 1990. During debate, Senator Kasten expressed concern about the proposed legislation's provisions concerning the “issue of downwind ozone nonattainment.” He noted that pollution from Chicago affected southeastern Wisconsin, but described “the difficulty this poses is that the Nation's most polluted urban areas are given a much more generous timetable for meeting air-quality standards. Chicago will have 5 more years to meet air-quality standards than these Wisconsin counties will have.” Senator Kasten then noted that because of Chicago's longer attainment date, it was likely that the Wisconsin counties “will be found in violation of the Clean Air Act because of actions taking place outside of their jurisdiction in an upwind State.” The commenter claims that Senator Kasten introduced an amendment which provided, among other things, for an attainment date extension for the downwind area until the upwind nonattainment area achieved emission reductions. S. Comm. On Envt. And Pub. Works, A Legislative History of the Clean Air Act Amendments of 1990, pp. 4954-55 (1993). The commenter claims that “the amendment, was, of course, rejected.” Thus the commenter argues that Congress, although it addressed ozone transport in sections 176A and 184, declined to alter the requirements of section 181, even though it was aware of the problem that EPA seeks to solve with its attainment date extension policy.

Response 14:
There is no evidence that the amendment discussed by Senator Kasten was ever debated, considered, or voted upon. Commenter cites no support for the proposition that it was considered and rejected. Thus no inferences can be drawn from the fact that the amendment was not embodied in the statute. Moreover, even if the amendment had been considered and rejected, it differed from and went so far beyond the attainment date extension EPA is applying here as to not be probative of Congressional intent with respect to EPA's current interpretation of the Act. Among other things, it would have provided for a new and separate Ozone Transport Region, and would have provided for different obligations and consequences for downwind areas than what is contained in EPA's current interpretation of the attainment date extension policy. Legislative History at 4954-56.

Comment 15:
The EPA policy is an illegal expansion of the 1994 overwhelming transport policy. Now the upwind area need not be a nonattainment area with a later attainment date, as long as it is an upwind area in another state that significantly contributes to nonattainment in the downwind area. Also, the new policy would allow attainment even later than attainment for the upwind area if the date for the NO
X
SIP Call reductions is later. Where the upwind area is in attainment or where its attainment date is earlier than the NO
X
SIP Call reductions, then an extension cannot be justified as necessary to reconcile the transport provisions with section 181(a). There is no justification for applying the policy where the upwind area is in attainment, or is in nonattainment but has air quality meeting the NAAQS, or where it is in nonattainment but has an attainment date earlier than the extension proposed.

Response 15:
The policy is not an illegal expansion of the overwhelming transport policy, but an appropriate interpretation of the provisions of the Clean Air Act in order to fulfill Congressional intent. EPA's current articulation of the attainment date extension policy reflects the considerable advances in understanding and allocating responsibility for transport that have occurred since the formulation of the Overwhelming Transport Policy. These advances have resulted from the work on ozone transport included in, among other efforts, the OTAG, SIP call, and area modeling programs. EPA thus regards the attainment date extension policy as superseding the Overwhelming Transport Policy. See EPA's earlier responses. The policy is not being applied here so as solely to involve upwind attainment areas, or upwind areas with earlier attainment dates. Upwind attainment areas with deficient SIPs have still been found to contribute significantly to downwind nonattainment. The SIP call involves a statewide area that may include attainment and nonattainment areas that have been found to contribute significantly to downwind nonattainment.

Comment 16:
Downwind areas should be required to implement, not just adopt, all required measures before becoming eligible for an extension. Modeling is imprecise and an area might be able to attain if they implement all required measures, which should already have been implemented prior to the original attainment date. A state could have timely submitted all the provisions for control of local pollution as required by sections 182(b)(1)(A)(i), 182(c)(2), and 172(c)(1) providing for the full extent of local reductions that it was in the state's power to require.

Response 16:
In granting an attainment date extension for an area, EPA has determined that upwind reductions are necessary to help the area reach attainment. Thus, requiring all local reductions to be implemented prior to the time that upwind reductions are achieved would not accelerate attainment. Nonetheless, EPA has required that local reductions be implemented as expeditiously as practicable. See EPA's Guidance 61 FR 14441 (March 25, 1999).

Comment 17:
EPA's allegation that local measures “will become superfluous once upwind areas reduce their contribution to the pollution problem,” 64 Fed. Reg. 14444, is mistaken. First, the measures will produce public health benefits during the period prior to implementation of upwind reductions, and second the Act independently requires all areas to “implement all reasonably available control measures as expeditiously as practicable,” 172(c)(1), regardless of what reductions are expected from upwind areas. EPA should not allow downwind areas to postpone implementing local measures until upwind reductions are achieved. This extension is unlawful, and, because unexplained, arbitrary and capricious.

Response 17:
EPA disagrees with the commenter's characterization of EPA's actions. EPA is in fact requiring downwind areas to implement the local control measures required under the classification as expeditiously as practicable, but no later than the time the upwind reductions are achieved. See EPA's Guidance, supra. To obtain an extension the area must have provided that it will implement all adopted measures as expeditiously as practicable, but no later than the date by which the upwind reductions needed for attainment will be achieved. See also response to Comment 16, above. No measures are being postponed as a result of the areas being granted a later attainment deadlines. None of these areas have delayed or postponed the effectiveness of measures because their attainment date is being extended. The states are enforcing their attainment measures as expeditiously as practicable. Thus EPA's interpretation is not unexplained, arbitrary, nor capricious. As EPA has explained, it seeks to reconcile and coordinate the

responsibilities of upwind and downwind areas to work together to achieve attainment. However, as discussed elsewhere, EPA has applied the section 172(c)(1) RACM requirement to these areas.

Comment 18:
EPA is excusing downwind areas from the requirement that nonattainment SIPs must provide for attainment of the NAAQS as provided in sections 182(b)(1)(A)(i), 182(c)(2)(A), 172(c)(1), and is also excusing them from the requirement that they implement all reasonably available control measures as expeditiously as practicable, regardless of the reductions required for attainment. EPA's attempt to lessen these obligations is unlawful and, because unexplained, arbitrary and capricious.

Response 18:
EPA is not excusing downwind areas from the requirement that they submit SIPs providing for attainment. Nor is EPA excusing downwind areas from the RACM requirement. EPA's interpretation does not exclude what is necessary for attainment; rather, a measure is RACM if it is needed for attainment. EPA is enforcing this requirement, but allowing the downwind state to take into account the control contribution of upwind areas that Congress envisioned, and that the commenters themselves acknowledge is embodied in Clean Air Act provisions, in determining the applicable attainment date. EPA is also requiring that the states implement reasonable control measures as expeditiously as practicable. See EPA's Responses to other comments.

Comment 19:
EPA's policy cannot be defended as a reconciliation of section 181(a) with the Act's anti-transport provisions. Under a proper interpretation of the Act, (1) upwind states' SIPs would ensure that the upwind areas' pollution contributing to NAAQS violations in downwind areas would be controlled, no later than the downwind areas' attainment date, (2) upwind areas would attain locally as expeditiously as practicable but no later than the date prescribed by section 181(a)(1) for the upwind area, and (3) downwind areas would attain locally “as expeditiously as practicable but not later than the applicable date prescribed in section 181(a)(1). This reading gives effect to all of the relevant statutory provisions.

Response 19:
The commenter concedes that under a proper interpretation of the Act, upwind states' SIPs would ensure that upwind areas' pollution contributing to violations in downwind areas would be controlled, prior to the downwind area's attainment date. But in the circumstances actually confronting EPA and the states, as EPA has explained in prior responses, it was not possible, given the state of knowledge of regional ozone transport, to control upwind transport prior to the original downwind attainment dates set forth in section 181(a)(1). Thus, in order to allow the upwind areas to fulfill their responsibility under the Act and to avoid imposing on the downwind area a burden Congress did not intend, EPA proposed interpreting the Act to adjust the downwind attainment deadlines, the very interpretation that the commenter rejects as unnecessary. By adjusting the attainment date to allow the upwind and downwind areas to carry out the statutory allocation of responsibility that is acknowledged by the commenter, EPA indeed is reconciling the Act and rendering a proper interpretation.

Comment 20:
No extension should be granted unless the area is as small as possible. The basis for transport should not be OTAG modeling, since better data is available.

Response 20:
The boundaries for serious nonattainment areas were established by operation of law (CAA section 107(d)(4)). The modeling done by OTAG and by EPA in the SIP call and the local modeling done in connection with the attainment demonstrations represents the best available modeling.

2. Comments Received on 12/16/99 Proposals

Comment 1:
The SIP submittals for Springfield, Greater Connecticut and Metropolitan D.C. do not contain substantive additional measures to reduce the state's ground level ozone problem. EPA cannot approve the attainment submittal because, among other reasons, it does not provide for attainment “as expeditiously as practicable,” as required by Section 181(a) of the CAA. Both the attainment submittal and the proposed rule simply assert that the states, acting alone, cannot achieve attainment, either in 1999 or 2007. Neither the state nor EPA explores the question of what can the state can do, with the help of specified upwind emission reductions, to achieve attainment as expeditiously as practicable. There is no showing that the State could not achieve attainment in 2003 through a combination of local and state measures and the NO
X
SIP Call; we only know that the NO
X
SIP Call is not likely to produce attainment by 2003 without additional local reductions. The SIPs do not meet the requirements of the CAA to provide for attainment as expeditiously as practicable and/or no later than November 15, 1999. States have made no attempt to provide for attainment as soon as possible. Because they do not meet the CAAs requirements for timely attainment, EPA must disapprove them.

Response 1:
Congress did not intend for the states to be responsible for achieving attainment, acting alone, when upwind areas are transporting pollution that contributes to their nonattainment problem. EPA has determined that, under the attainment date extension, the states will attain the standard as expeditiously as practicable. The basis for this determination, and EPA's findings that the area is affected by transport from upwind areas, is discussed extensively in section II.A.1. EPA has determined that even with the attainment date extension, no reasonably available control measures would advance the attainment date. See other Responses to Comments in sections II. A and II. E.

Comment 2:
The state's SIP does not contain adequate contingency measures as required by Section 172(c)(9) of the CAA. Such measures are especially important in a case such as this, where a substantial portion of the emission reductions relied on are assumed to occur well into the future, and well beyond the statutory attainment date.

Response 2:
Although no measures have been specifically designated as contingency measures, EPA has found that measures that could reasonably constitute appropriate contingency measures are already contained in the SIP or exist in promulgated Federal regulations. See discussion of contingency measures in section II. L below.

Comment 3:
Even assuming the Transport Guidance is consistent with the Act, the states' attainment submittals do not meet the requirements and/or preconditions necessary to secure adequate emissions reductions from in-state sources. For example, CT and MA could secure further NO
X
reductions from power plants and other stationary sources through implementation of RACT on additional stationary sources. The States could secure additional reductions through a diesel inspection and maintenance program.

Response 3:
EPA believes that a diesel I/M program may have some potential for emission reductions. At this time, however, there is insufficient information available about the program to determine whether I/M would be economically or technologically feasible. Also, the test protocols are not sufficiently developed to enable EPA to determine the magnitude of reductions possible, and thus whether the

program's emission reductions would advance the attainment date. In its other Responses to Comments, EPA has explained and supported its conclusions that the states have adopted and will implement as expeditiously as practicable the measures necessary to secure adequate emissions reductions from in-state sources. No additional RACM is required for these areas.

Comment 4:
The States have failed to timely pursue administrative avenues for states to seek redress for transport problems: through a section 126 petition and a section 110 SIP call. CT and MA did not file section 126 petitions until the summer of 1997. Even if EPA's transport Guidance were lawful, it should not be applied except as a matter of last resort—the downwind area must have identified and committed to all necessary local measures and exhausted its administrative remedies in a timely fashion to secure all necessary upwind reductions. The States have failed to do that and have waited too long. They want to wait until upwind reductions bring them into attainment without making any additional emission reductions of their own. This is not in keeping with the attainment provisions and schedules in the CAA.

Response 4:
EPA disagrees with the commenter that the States have waited too long to seek relief. As set forth in detail in section II. A.1, the States and EPA have worked for years to solve the transport problem, and were unable to obtain adequate redress for transported pollution until the culmination of the OTAG effort. EPA finds that the States were not dilatory in their efforts to pursue relief from transported pollution; relief was not available until regional transport could be analyzed and responsibility for remediation appropriately apportioned. These effort took years, and was more prolonged than Congress, EPA, or the states had anticipated. See EPA's discussion of the history of the efforts to address transport in section II. A.1. The States have not failed to pursue any remedies as they became meaningful and available. Nor does EPA agree that its attainment date extension allows the States to wait for upwind reductions without making local emission reductions. EPA's policy is predicated upon an equitable allocation of responsibility between upwind and downwind areas, and explicitly requires the downwind areas to adopt and implement local controls as expeditiously as practicable.

Comment 5:
The states have failed to implement all available control measures and have not demonstrated that attainment is impracticable due to pollutant transport. The states have failed to meet the requirement of EPA's transport policy that the states adopt all local measures required under the area's current classification. Among other things, the Washington, DC area states have failed to adopt NO
X
RACT programs that meet all applicable requirements of the Act and EPA guidance.

Response 5:
EPA disagrees with the commenter's contention that the states being granted attainment date extensions have not satisfied the criterion of adopting required local measures. EPA finds that the states have fulfilled their responsibility with respect to having adopted required local measures. With respect to contingency measures, EPA has determined that measures that can be reasonably construed to function as contingency measures are already contained in the areas' SIPs. See further discussion of the contingency measure requirement in other Responses to Comments. With respect to Washington, DC and Massachusetts, the areas have adopted and EPA has found approvable all other local measures that are required under their current classification, including NO
X
RACT. EPA has further found that the states have or will implement required local measures as expeditiously as practicable. With respect to Connecticut, the state has adopted and EPA has approved all measures required under its current classification except with respect to certain aspects of its new source review (NSR) program. Connecticut's nonattainment area NSR program is the one Clean Air Act measure required under the state's classification that EPA has not yet approved as meeting all the requirements of the Act. Nevertheless, EPA has determined that Connecticut's NSR program substantially addresses the Act's requirements and provides a sufficient basis for EPA to apply its attainment date extension policy. The Connecticut NSR program imposes all the Act's requirements on new and modified sources of air pollution for those sources covered by the state's program, including the lowest achievable emissions rate technology standard and emissions offsets consistent with the classification under the Act of the state's two ozone nonattainment areas. In addition, the state's NSR program captures the correct universe of new sources covered by the Act's requirements. The reason Connecticut's program does fully meet all the Act's requirements is that the state's formula for capturing modified sources of air pollution in the program differs from the federal requirements in one respect. EPA's federal NSR regulations generally require that modifications be measured by comparing the actual emissions of the existing facility with the potential emissions of the modified facility. Connecticut's regulations compare the potential emissions of the existing facility with the potential emissions of the modified facility. On the other hand, Connecticut's program is more rigorous than EPA's regulations in measuring a modification in so far as the state's program does not allow for “netting” at a source to avoid being treated as a modification. Federal regulations would allow an increase in emissions at an existing source to be balanced against contemporaneous emissions decreases elsewhere at the source to avoid NSR, while Connecticut's NSR program does not. On balance, EPA has concluded that the state's NSR program substantially addresses this Clean Air Act requirement for the purposes of granting an attainment date extension under EPA's policy.

EPA thus concludes that substantial compliance with the NSR program and approval of all remaining required measures constitutes substantial compliance with the criterion that the state adopt all measures required under Connecticut's current classification. EPA has further found that it will implement these measures as expeditiously as practicable. Thus, EPA believes that the states have fulfilled their responsibility to satisfy the requirements of their current classification, and that, under these circumstances, Congress would not have intended them to be reclassified for failure to attain.

The sufficiency of the Washington, DC area States' NO
X
RACT rules is discussed extensively in responses to other comments elsewhere in this notice.

Comment 6:
The states have not shown that they have committed to implement all local measures necessary to secure adequate emissions reductions from in-state sources. They have not shown that a combination of local reductions and upwind reductions will achieve attainment by their extended dates.

Response 6:
EPA has found that the states have demonstrated attainment through a combination of upwind and local measures. See other EPA responses and discussion of the attainment demonstration. Secondly, although the states theoretically could always secure more reductions through additional local measures, Congress did not intend that the downwind states compensate for the upwind states failure to control

transported pollution. Having met the RACM requirements and controlled for local pollutants, the downwind area should not be required to secure additional emissions reductions in order to offset emissions from upwind sources. As EPA has discussed elsewhere in its responses, the States have committed to implement all measures necessary to secure adequate emissions from in-state sources.

Comment 7:
The DC Circuit stated in
American Trucking Ass'n
v
EPA
, 175 F.3d 1027 (D.C. Cir. 1999) that EPA “is precluded from enforcing a revised primary ozone NAAQS other than in accordance with the classifications, attainment dates, and control measures set out in Subpart 2.” This means that EPA cannot ignore the attainment dates in Subpart 2.

Response 7:
The opinion cited concerns EPA's authority to implement a revised 0.08 ppm 8-hour standard not the standard at issue here—the one-hour 0.12 ppm NAAQS. Regarding EPA's belief that the provisions in Subpart 2 of the Act govern implementation of the one-hour standard, EPA is not ignoring the attainment dates in Subpart 2. EPA is interpreting the provisions of Subpart 2 to allow EPA to extend the attainment deadlines in accordance with Congressional intent and using means set forth in the provisions of Subpart 2. Thus EPA is properly implementing the one-hour standard.

Comment 8:
Each serious area plan on its face shows that the control measures described therein will not by themselves produce attainment at any point, and clearly not by l999. EPA's reliance on SIP call reductions is particularly unjustified in the DC Area, given that Virginia is challenging EPA's authority to require those very reductions. EPA cannot grant credit for SIP call reductions when the SIP call has been judicially stayed.

Response 8:
As EPA has explained elsewhere in its responses, Congress did not intend for a downwind area that is affected by transport to be responsible for pollution generated outside its borders. The stay of the SIP call has been vacated and the SIP call has been upheld. The court lifted its stay and states are required to submit SIPs fully addressing the SIP call and if they fail, EPA must promulgate a Federal plan. EPA is fully justified in its reliance on SIP call reductions and in granting credit for them in the areas' attainment demonstrations.

Comment 9:
The SIPs fail to provide for attainment as expeditiously as practicable even though this is a serious area where a specific attainment deadline has passed. Furthermore, the States have not even evaluated the possibility of attaining sooner than their extended attainment dates. The SIPs must be disapproved by EPA since they do not meet the CAA's basic requirements for timely attainment nor do they consider the possibility of providing for earlier attainment even if the attainment date extension were permissible.

Response 9:
EPA shows in its other Responses, the SIPs provide for attainment as expeditiously as practicable, and the States have shown that they qualify for an attainment date extension due to transport. EPA evaluated the reductions required for attainment from both the upwind and downwind areas, and determined that the attainment dates were as expeditious as practicable. See also Responses 11 and 12 below.

Comment 10:
This not a situation where the states have adopted all available measures and still show nonattainment due solely to transport. The states have refused to even identify the levels of VOC and NO
X
emissions that would be consistent with attainment in the absence of NO
X
reductions that would be required by the NO
X
SIP Call. Nor do the plans state the level of emission reductions that would be needed to produce attainment in the absence of upwind reductions. EPA cannot rationally find that transported NO
X
renders attainment impracticable in the serious areas, when the states have neither quantified the reductions needed locally to attain in the absence of transport reductions, nor shown that such reductions are unachievable through adoption of additional state and local control measures.

Response 10:
EPA in its Responses has provided an extensive analysis of the role of transport in downwind nonattainment for the serious areas. In the NO
X
SIP Call, EPA concluded that “EPA believes that available modeling analyses demonstrate that upwind reductions are necessary to help downwind areas come into attainment.” 63 FR 57404 (October 27, 1998). These downwind areas included the areas being granted attainment date extensions here. The DC Circuit upheld EPA's conclusion in
Michigan
versus
EPA,
213 F.3d 663 (D.C. Cir. 2000). The SIP call and the modeling done by the states support the conclusion that the affected areas cannot attain without upwind reductions. Congress intended that upwind areas be responsible for pollution that interferes with downwind nonattainment, while at the same time requiring that downwind areas be accountable for locally generated emissions. The Clean Air Act reflects Congressional intent that downwind areas not be compelled to compensate for lack of upwind controls through the adoption of additional state and local control measures, as commenter suggests. EPA disagrees with commenter's suggestion that the downwind areas must show that no further local reductions are achievable before relying on upwind areas to shoulder responsibility for the pollution they generate. EPA finds that a reading of the Clean Air Act shows that Congress did not intend for downwind areas to be forced to impose additional local controls to offset significant pollution contributions from upwind areas, before seeking relief.

Comment 11:
EPA has not demonstrated that Metropolitan Washington, DC would attain but for transport. To the contrary, episode-specific data shows that the second highest ozone exceedance recorded last summer occurred on a day on which air parcels originated in Northern Virginia. The EPA has offered no rational basis for granting a longer transport-related extension to the Metropolitan Washington, DC area than to Massachusetts.

Response 11:
Strong evidence indicates that the Washington, DC nonattainment area is impacted by transport from outside the area and cannot attain without upwind reductions. Sensitivity modeling which applies additional local controls to the Baltimore nonattainment area indicates reducing levels of ozone and its precursors in the Baltimore nonattainment area reduces ozone levels in the Washington, DC nonattainment area. A more focused analysis of days when exceedances occur in the Washington, DC nonattainment area shows that under stagnant meteorological conditions the Washington, DC and Baltimore areas ultimately share the same air mass and mixing occurs throughout the CMSA as is evidenced by the strong correlation between high ozone concentrations in each of these areas

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A01-61. Public record. Not legal advice.