Extension of Attainment Dates for Downwind Transport Areas

ENVIRONMENTAL PROTECTION AGENCY

[FRL-6315-1]

Extension of Attainment Dates for Downwind Transport Areas

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice; proposed interpretation; request for comments.

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SUMMARY: Today's document announces EPA's interpretation of the Clean

Air Act (Act) regarding the possibility of extending attainment dates

for ozone nonattainment areas that have been classified as moderate or

serious for the 1-hour standard and which are downwind of areas that

have interfered with their ability to demonstrate attainment by dates

prescribed in the Act. The guidance memorandum that is being printed in

today's notice is entitled ``Extension of Attainment Dates for Downwind

Transport Areas'' and was signed by Richard D. Wilson, Acting Assistant

Administrator for Air and Radiation, on July 16, 1998. This notice

follows up on the statement made in the guidance memorandum that EPA

would request comments on its interpretation.

A number of areas may find themselves facing the prospect of being

reclassified or ``bumped up'' to a higher classification in spite of

the fact that pollution beyond their control contributes to the levels

of ozone they experience. The notice addresses the problem by providing

an avenue to extend the attainment dates for areas affected by

transported pollution. The EPA intends to finalize the interpretation

in this guidance only when it applies in the appropriate context of

individual rulemakings addressing specific attainment demonstrations

and requests for attainment date extensions. If EPA approves an area's

attainment demonstration and attainment date extension request, the

area would no longer be subject to bump up for failure to attain by its

original attainment date.

DATES: The EPA is establishing an informal 30-day comment period for

today's notice, ending on April 26, 1999.

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ADDRESSES: Documents relevant to this action are available for

inspection at the Air and Radiation Docket and Information Center

(6101), Attention: Docket No. A-98-47, U.S. Environmental Protection

Agency, 401 M Street, SW, Room M-1500, Washington, DC 20460, telephone

(202) 260-7548, between 8:00 a.m. and 4:00 p.m., Monday through Friday,

excluding legal holidays. A reasonable fee may be charged for copying.

Written comments should be submitted to this address.

FOR FURTHER INFORMATION CONTACT: Denise Gerth, Air Quality Strategies

and Standards Division, Office of Air Quality Planning and Standards,

U.S. Environmental Protection Agency, MD-15, Research Triangle Park, NC

27711, telephone (919) 541-5550.

SUPPLEMENTARY INFORMATION: On July 16, 1998, the following guidance was

issued by Richard Wilson, Acting Assistant Administrator for Air and

Radiation. It should be noted that the July 16, 1998 memorandum

reprinted in this notice refers to EPA's proposed NOX SIP

call. After the memorandum was signed, EPA took final action on the SIP

call and promulgated a final rule. See 63 FR 57356 (October 27, 1998).

Guidance on Extension of Attainment Dates for Downwind Transport

Areas

Preface

The purpose of this guidance is to set forth EPA's current views on

the issues discussed herein. EPA intends soon to set out its

interpretation in an advance notice of proposed rulemaking on which the

Agency will take comment.

While EPA intends to proceed under the guidance that it is setting

out today, the Agency will finalize this interpretation only when it

applies in the appropriate context of individual rulemakings addressing

specific attainment demonstrations. At that time and in that context,

judicial review of EPA's interpretation would be available.

Introductory Summary

A number of areas in the country that have been classified as

moderate or serious nonattainment areas for the 1-hour ozone standard

are affected by pollution transported from upwind areas. For these

downwind areas, transport from upwind areas has interfered with their

ability to demonstrate attainment by the dates prescribed in the Clean

Air Act (Act). As a result, many of these areas find themselves facing

the prospect of being reclassified, or ``bumped up,'' to a higher

nonattainment classification in spite of the fact that pollution that

is beyond their control contributes to the levels of ozone they

experience. In the policy being issued today, EPA is addressing this

problem by planning to extend the attainment date for an area that is

affected by transport from either an upwind area with a later

attainment date or an upwind area in another State that significantly

contributes to downwind nonattainment, as long as the downwind area has

adopted all necessary local measures, and has submitted an approvable

attainment plan to EPA which includes those local measures. (By

``affected by transport,'' EPA means an area whose air quality is

affected by transport from an upwind area to a degree that affects the

area's ability to attain.) EPA intends to initiate rulemaking for each

area seeking such relief and contemplates providing such relief to

those who qualify. If after consideration of public comments EPA acts

to approve an area's attainment demonstration and extend its attainment

date, the area will no longer be subject to reclassification or ``bump-

up'' for failure to attain by its otherwise applicable attainment date.

Background

The Act may be interpreted to allow a later attainment date than

generally applicable to a particular ozone nonattainment area if

transport of ozone or its precursors (nitrogen oxides (NOX)

and volatile organic compounds (VOCs)) prevents timely attainment. This

principle has already been advanced in EPA's Overwhelming Transport

Policy, which allowed a downwind area to assume the later attainment

date if it could meet certain criteria, including a demonstration that

it would have attained ``but for'' transport from an upwind

nonattainment area with a later attainment date. See Memorandum from

Mary D. Nichols, Assistant Administrator for Air and Radiation,

entitled, ``Ozone Attainment Dates for Areas Affected by Overwhelming

Transport,'' September 1, 1994. In the four years since the issuance of

that memorandum, the history of the efforts to analyze and control

ozone transport has led EPA to believe that it should expand the

policy's reach to ensure that downwind areas are not unjustly penalized

as a result of transport.

In March 1995, EPA called for a collaborative, Federal-State

process for assessing the regional ozone transport problem and

developing solutions, and the Ozone Transport Assessment Group (OTAG)

was subsequently formed. See Memorandum from Mary D. Nichols, Assistant

Administrator for Air and Radiation, entitled ``Ozone Attainment

Demonstrations,'' March 2, 1995. The OTAG was an informal advisory

committee with representatives from EPA, thirty-seven states in the

Midwestern and eastern portions of the country, and industry and

environmental groups. OTAG's major functions included developing

computerized modeling analyses of the impact of various control

measures on air quality levels throughout the region and making

recommendations as to the appropriate ozone control strategy. Based on

OTAG's modeling analyses, it developed recommendations concerning

control strategies. These recommendations, issued in mid-1997, called

upon EPA to calculate the specific reductions needed from upwind areas.

In November 1997, using OTAG's technical work, EPA issued a

proposed NOX State implementation plan (SIP) call, directing

certain States to revise their SIPs in order to satisfy section

110(a)(2)(D) by reducing emissions of NOX to specified

levels, which in turn will reduce the amounts of ozone being

transported into nonattainment areas from upwind areas. 62 FR 60318

(November 7, 1997). In July 1997, the EPA promulgated a revised 8-hour

ozone NAAQS. 62 FR 38856 (July 18, 1997). That promulgation included

regulations providing that the 1-hour NAAQS would be phased out, and

would no longer apply to an area once EPA determined that the area had

air quality meeting the 1-hour standard. 40 CFR 50.9(b). Until the 1-

hour standard is revoked for a particular area, the area must continue

to implement the requirements aimed at attaining that standard.

The Current Problem

The Act called on areas classified as moderate ozone nonattainment

areas to submit SIPs that demonstrate attainment by 1996 (unless they

receive an extension), and called on serious nonattainment areas to

demonstrate attainment by November 1999 (unless they receive an

extension). Section 181 and 182(b) and (c). For many of these areas,

EPA has preliminarily determined in the proposed SIP call that

transport from upwind areas is contributing to their nonattainment

problems. Such transport also appears to be interfering with their

ability to demonstrate attainment by the statutory attainment dates.

The graduated control scheme in sections 181 and 182 of the Act

expressed Congress's intent that areas be assigned varying attainment

dates, depending upon the severity of the air quality problem they

confront. Sections 181 and 182 provide for attainment ``as

expeditiously as practicable,'' but

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establish later deadlines for attainment in more polluted areas, and

additional control measures that the more polluted areas must

accomplish over the longer time frame. Thus, many of the upwind areas

have later attainment dates than the downwind areas which are affected

by emissions from the upwind States. On the other hand, section

110(a)(2)(D)(i)(I) of the Act requires SIPs to prohibit ``consistent

with the other provisions of [title I],'' emissions which will

``contribute significantly to nonattainment in * * * any other State.''

The EPA interprets section 110(a)(2)(A) to incorporate the same

requirement in the case of intrastate transport. Sections 176A and 184

provide for regional ozone transport commissions that may recommend

that EPA mandate additional regional control measures to allow areas to

reach timely attainment in accordance with section 110(a)(2)(D)(i)(I).

These provisions demonstrate Congressional intent that upwind areas

be responsible for preventing interference with timely downwind

attainment. They must be reconciled with express Congressional intent

that more polluted areas be allotted additional time to attain. As EPA

pointed out in its overwhelming transport policy, Congress does not

explicitly address how these provisions are to be read together to

resolve the circumstance where more polluted upwind areas interfere

with timely attainment downwind, during the time provided for those

upwind areas to reduce their own emissions.

In the 1994 overwhelming transport policy, EPA stated that it would

harmonize these provisions to avoid arguably absurd or odd results and

to give effect to as much of Congress' manifest intent as possible. The

EPA struck a balance in the overwhelming transport policy by requiring

that the upwind and downwind areas reduce their contribution to the

nonattainment problem while avoiding penalizing the downwind areas for

failure to do the impossible.

In the 1994 policy, EPA reasoned that Congress did not intend the

section 110(a)(2)(D)(i)(I) obligation to supersede the practicable

attainment deadlines and graduated control scheme in sections 181 and

182, especially since section 110(a)(2)(D)(i)(I) specifically applies

only ``to the extent consistent with the provisions of [title I].'' The

same rationale applies in the intrastate context under section

110(a)(2)(A).

Developments since the issuance of the overwhelming transport

policy in 1994 have prompted EPA once again to interpret these

provisions so that they can be reconciled in light of existing

circumstances. Since the issuance of that policy, EPA and the States,

through OTAG, have made significant progress in addressing interstate

transport in the eastern United States, and have worked to analyze the

flow of transport and to allocate among the States their respective

responsibilities for control. During the period required for this

effort, which took longer than was anticipated, the resolution of the

regional transport issue was held in abeyance. The effort to address

regional transport recently resulted in EPA's proposed NOx

SIP call, expected to be finalized in the next few months. For areas in

the OTAG region affected by transport, the conclusion of the OTAG and

SIP call processes in September 1998 will result in assignments of

responsibility that will assist in the design of SIPs and the formation

and implementation of attainment demonstrations.

Because EPA had not previously determined how much to require

upwind States in the OTAG region to reduce transport, downwind areas

were handicapped in their ability to determine the amounts of emissions

reductions needed to bring about attainment. While operating in this

environment of uncertainty, many of these downwind areas confronted

near-term attainment dates. Moreover, as described in the

NOX SIP call proposal, the reductions from the proposed

NOX SIP call will not likely be achieved until at least

2002, well after the attainment dates for many of the downwind

nonattainment areas that depend on those reductions to help reach

attainment.

The Solution

The EPA believes that a fair reading of the Act would allow it to

take these circumstances into account to harmonize the attainment

demonstration and attainment date requirements for downwind areas

affected by transport both with the graduated attainment date scheme

and the schedule for achieving reductions in emissions from upwind

areas. Thus, EPA will consider extending the attainment date for an

area that:

(1) Has been identified as a downwind area affected by transport

from either an upwind area in the same State with a later attainment

date or an upwind area in another State that significantly contributes

to downwind nonattainment. (By ``affected by transport,'' EPA means an

area whose air quality is affected by transport from an upwind area to

a degree that affects the area's ability to attain);

(2) Has submitted an approvable attainment demonstration with any

necessary, adopted local measures and with an attainment date that

shows that it will attain the 1-hour standard no later than the date

that the reductions are expected from upwind areas under the final

NOX SIP call and/or the statutory attainment date for upwind

nonattainment areas, i.e., assuming the boundary conditions reflecting

those upwind reductions;

(3) Has adopted all applicable local measures required under the

area's current classification and any additional measures necessary to

demonstrate attainment, assuming the reductions occur as required in

the upwind areas. (To meet section 182(c)(2)(B), serious areas would

only need to achieve progress requirements until their original

attainment date of November 15, 1999);

(4) Has 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.

EPA contemplates that when it acts to approve such an area's

attainment demonstration, it will, as necessary, extend that area's

attainment date to a date appropriate for that area in light of the

schedule for achieving the necessary upwind reductions. The area would

no longer be subject to reclassification or ``bump-up'' for failure to

attain by its original attainment date under section 181(b)(2).

Legal Rationale

The legal basis for EPA's interpretation of the attainment date

requirements employs and updates the rationale invoked in the Agency's

overwhelming transport policy. By filling a gap in the statutory

framework, EPA's interpretation harmonizes the requirements of sections

181 and 182 with the Act's requirements (sections 110(a)(2)(D)(i)(I),

110(a)(2)(A), 176A and 184) on inter-area transport. It reconciles the

principle that upwind areas are responsible for preventing interference

with downwind attainment with the Congressional intent to provide

longer attainment periods for areas with more intractable air pollution

problems. It also takes into account the amount of time it will take to

achieve emission reductions in upwind areas under the NOX

SIP call, which EPA expects to finalize in September 1998.

The EPA's resolution respects the intent of sections 181 and 182 to

provide longer attainment dates for areas burdened with more onerous

air pollution problems, while allowing

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reductions from upwind areas to benefit the downwind areas. Under EPA's

interpretation, upwind areas will be required to reduce emissions to

control transport, but should not find that the requirements imposed

upon them amount to an acceleration of the time frames Congress

envisioned for these areas in sections 181 and 182. Downwind areas will

be provided additional time to accommodate the delayed control

contributions from upwind areas, while at the same time being held

accountable for all measures required to control local sources of

pollution.

The EPA's interpretation of the Act allows it to extend attainment

dates only for those areas which are prevented from achieving timely

attainment due to a demonstrated transport problem from upwind areas,

and which submit attainment demonstrations and adopt local measures to

address the pollution that is within local control. The EPA believes

that Congress, had it addressed this issue, would not have intended

downwind areas to be penalized by being forced to compensate for

transported pollution by adopting measures that are more costly and

onerous and/or which will become superfluous once upwind areas reduce

their contribution to the pollution problem.

This interpretation also recognizes that downwind areas in the OTAG

region have been operating in a climate of uncertainty as to the

allocation of responsibility for controlling transported pollution.

Section 110(a)(2)(D) is not self-executing and, until the

NOX SIP call rulemaking, 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. By allowing these areas to

assume the boundary conditions reflecting reductions set forth in the

NOX SIP call and/or reductions from the requirements

prescribed for upwind nonattainment areas under the Act, EPA will hold

upwind areas responsible for reducing emissions of transported

pollution, and downwind areas will be obliged to adopt and implement

local controls that would bring about attainment but for the

transported pollution.

The EPA's interpretation harmonizes the disparate provisions of the

Act. It avoids accelerating the obligations of the upwind States so

that downwind States can meet earlier attainment dates, which would

subvert Congressional intent to allow upwind areas with more severe

pollution longer attainment time frames to attain the ozone standards.

In addition, EPA's interpretation of the Act takes into account the

fact that, under the SIP call, upwind area reductions will not be

achieved until after the attainment dates for moderate and serious

ozone nonattainment areas. To refuse to interpret the Act to accomplish

this would unduly penalize downwind areas by requiring them to

compensate for the transported pollution that will be dealt with by

controls adopted in response to the requirements of the NOX

SIP call or to achieve attainment in an upwind area. The EPA is thus

interpreting the requirements to allow the Agency to grant an

attainment date extension to areas that submit their attainment

demonstrations and all adopted measures necessary locally to show

attainment. This solution preserves the responsibility of these

downwind areas to prepare attainment demonstrations and adopt measures,

but does not penalize them for failing to achieve timely attainment by

reclassifying them upwards, since such attainment was foreclosed by

transport beyond their control.

Under this policy, once EPA has acted to approve the attainment

demonstration and extend the area's attainment date, the area would no

longer be subject to reclassification or ``bump-up'' for failure to

attain by its original attainment date under section 181(b)(2).

The EPA requests comment on the interpretation in the guidance

memorandum reprinted above.

Dated: March 18, 1999.

Robert D. Brenner,

Acting Assistant Administrator for Air and Radiation.

[FR Doc. 99-7332 Filed 3-24-99; 8:45 am]

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