Approval and Promulgation of Implementation Plans; Texas; Ozone; Beaumont/Port Arthur Ozone Nonattainment Area

Related Material

Other Related Documents

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: May 15, 2001 (Volume 66, Number 94)]
[Rules and Regulations]
[Page 26913-26939]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15my01-18]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 52
[FRL-6976-1]

Approval and Promulgation of Implementation Plans; Texas; Ozone;
Beaumont/Port Arthur Ozone Nonattainment Area

AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.

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SUMMARY: The EPA is approving the Texas 1-hour ozone attainment
demonstration State Implementation Plan (SIP) for the Beaumont/Port
Arthur (BPA) moderate ozone nonattainment area. The attainment
demonstration SIP is addressed in the State of Texas submittals dated
November 12, 1999 and April 25, 2000. In approving the attainment
demonstration, EPA is: Extending the ozone attainment date for the BPA
ozone nonattainment area to November 15, 2007 while retaining the
area's current classification as a moderate ozone nonattainment area;
approving the State's enforceable commitment to perform a mid-course
review and submit a SIP revision to the EPA by May 1, 2004; finding
that the BPA area meets the Reasonably Available Control Technology
(RACT) requirements for major sources of volatile organic compounds
(VOC) emissions; and approving the motor vehicle emissions budgets
(MVEB). A notice of proposed rule making was published on this action
on December 27, 2000 (65 FR 81786). EPA received comments on that
proposal. EPA has also received comments on two related proposed
actions: the ``Extension of Attainment Dates for Downwind Transport
Areas,'' 64 FR 12221 (March 25, 1999); and, the proposed rulemaking
published on April 16, 1999 (64 FR 18864), which addressed the Clean
Air Act reclassification or eligibility for extension of attainment
date for the BPA area. In this action, EPA responds to the comments to
all three of these documents. For details on the SIP submittals and the
EPA analysis of the submittals, refer to the December 27, 2000 proposed
rule.

DATES: This final rule is effective on June 14, 2001.

ADDRESSES: Copies of documents relevant to this action are available
for public inspection during normal business hours at the Environmental
Protection Agency, Region 6, Air Planning Section (6PD-L), 1445 Ross
Avenue, Dallas, Texas 75202-2733; and, the Texas Natural Resource
Conservation Commission, Office of Air Quality, 12124 Park 35 Circle,
Austin, Texas 78753.

FOR FURTHER INFORMATION CONTACT: Steven Pratt, Air Planning Section
(6PD-L), 1445 Ross Avenue, Dallas, Texas 75202-2733. Telephone Number
(214) 665-2140, e-Mail Address: pratt.steven@epa.gov.

SUPPLEMENTARY INFORMATION: Throughout this document ``we,'' ``us,'' and
``our'' means EPA. This supplementary information section is organized
as follows:

I What Texas SIP revisions are the topic of this action?
II What previous actions have been taken regarding BPA attainment
demonstrations and attainment dates?
III What Motor Vehicle Emissions Budgets are we approving?
IV What are the requirements for full approval of the attainment
demonstration?
V How did Texas fulfill these requirements for full approval?
VI What SIP elements did EPA need to take final action on before
approval of the attainment demonstration could be granted?
VII Implementation of Reasonably Available Control Measures.
VIII What comments were received on this proposed approval, and the
two related actions, and how has the EPA responded to those?
IX EPA Action
X Administrative Requirements

I. What Texas SIP Revisions Are the Topic of This Action?

The Texas Natural Resource Conservation Commission (TNRCC) made two
submittals to us, which concern the ozone attainment demonstration, and
an extension of the attainment date for the BPA ozone nonattainment
area:
(a) A November 12, 1999, submission from the Governor of Texas,
which included the following:
A. Regulations and associated documentation for the control of VOC
emissions from batch process operations and industrial wastewater
treatment processes, intended to fulfill the remaining VOC RACT
requirements of section 182(b)(2) of the Act for the BPA moderate
nonattainment area;
B. A regulation and associated documentation for the control of
NO_X emissions from lean burn engines, intended to meet the
remaining NO_X RACT requirements of section 182(b)(2) of the
Act for the BPA moderate nonattainment area;
C. Photochemical Modeling demonstration and its accompanying
control strategy to bring the BPA area into attainment of the one-hour
ozone standard as expeditiously as practicable, but no later than 2007;
D. 2007 motor vehicle emissions budgets for transportation
conformity;
E. Emissions growth estimates and an emissions inventory; and,
F. An enforceable commitment to submit additional rules to us in
accordance with its modeled control strategy. (This was accomplished
with the April 25, 2000, submittal--see below)
(b) An April 25, 2000, submission from the Governor of Texas, which
included the following:
A. Beyond RACT NO_X emissions specifications in the BPA
area for electric utility boilers, industrial, commercial or
institutional boilers, and certain process heaters, relied upon for
attainment in the BPA area;
B. Additional regional rules and orders relied upon for
demonstrating attainment in the BPA area;
C. A Revised Photochemical Modeling demonstration and emissions
growth estimates; and,
D. An enforceable commitment to perform a mid-course review with
submittal to the EPA by May 1, 2004.
The TNRCC held a public hearing on the November submittal on August
9, 1999. This submittal was formally adopted by the TNRCC on October
27, 1999. The TNRCC held ten public hearings on the April submittal; a
public hearing was held in the BPA area on January 31, 2000. The TNRCC
formally adopted the April 25, 2000, submittal on April 19, 2000.

II. What Previous Actions Have Been Taken Regarding BPA Attainment
Demonstrations and Attainment Dates?

On April 16, 1999, EPA proposed in the Federal Register to
reclassify the BPA area to a serious ozone nonattainment area, and
alternatively, proposed to extend the BPA area's attainment date if the
State submitted a timely SIP meeting the criteria of the 1998 Transport
Policy (64 Federal Register 18864).
The BPA Attainment Demonstration SIP revision was adopted by the
State on October 27, 1999 and submitted to EPA under a cover letter
from the Governor dated November 12, 1999. This submittal was termed by
the State as ``Phase I'' of their NO_X rulemaking activities.
The State submitted a revision to their SIP dated April 25, 2000, as
``Phase II'' NO_X rules and controls needed for attainment.
We proposed approval of these SIP revisions in a notice of proposed
rulemaking (NPR) published on December 27, 2000 (65 FR 81786). EPA

[[Page 26915]]

received comments on that proposal. EPA has also received comments on
two related proposed actions: The ``Extension of Attainment Dates for
Downwind Transport Areas'' 64 FR 12221 (March 25, 1999); and, the
proposed rulemaking published on April 16, 1999 (64 FR 18864) which
addressed the Clean Air Act potential reclassification or eligibility
for extension of attainment date for the BPA area. In this action, EPA
responds to the comments to all three of these documents.

III. What Motor Vehicle Emissions Budgets Are We Approving?

Texas has submitted motor vehicle emissions budgets for the 2007
attainment year for the BPA ozone nonattainment area. The emission
budgets are shown in Table 1.

Table 1.--BPA 2007 Attainment Motor Vehicle Emissions Budgets
------------------------------------------------------------------------
2007 tons/
Pollutant day
------------------------------------------------------------------------
VOC........................................................ 17.22
NO_X........................................................ 29.94
------------------------------------------------------------------------

We are approving these MVEBs in this action. These MVEBs are
approvable as they are consistent with the control measures in the SIP,
and the SIP as a whole demonstrates attainment.

IV. What Are the Requirements for Full Approval of the Attainment
Demonstration?

In the April 16, 1999, notice we proposed to find pursuant to
section 181(b)(2) of the Clean Air Act that the BPA area had failed to
attain the ozone one-hour NAAQS by the date prescribed under the Act
for moderate ozone nonattainment areas (i.e., November 15, 1996).
Finalizing that finding, would result in the BPA area being
reclassified from moderate nonattainment to serious nonattainment.
Alternatively, we proposed to extend the attainment date, providing
that Texas met the criteria of our July 16, 1998 transport policy,
``Guidance on Extension of Attainment Dates for Downwind Transport
Areas.'' If Texas submitted a SIP by November 15, 1999, that met the
July 1998 transport policy, we stated we would issue a supplemental
proposal in a Federal Register notice to extend the BPA area's
attainment date as appropriate.
The demonstration SIP must meet applicable criteria as detailed in
the Act. The specific requirements of the Act for moderate ozone
nonattainment areas are found in part D, section 182(b). Section 172 in
part D provides the general requirements for nonattainment plans. Refer
to the December 27, 2000, supplemental proposed rule for further
details of the SIP requirements.

V. How Did Texas Fulfill These Requirements for Full Approval?

Texas fulfilled the requirements for full approval as follows.
Texas adopted the BPA Attainment Demonstration SIP revision on
October 27, 1999 and submitted it to the EPA under a cover letter from
the Governor dated November 12, 1999. This submittal was termed by the
State as ``Phase I'' of their NO_X rulemaking activities
needed for attainment. The State submitted a revision to their SIP
dated April 25, 2000, as ``Phase II'' NO_X rules and controls
needed for attainment.
The State addressed the aspect of transport in accordance with our
July 16, 1998 transport policy, ``Guidance on Extension of Attainment
Dates for Downwind Transport Areas.'' Texas has demonstrated that
during some BPA exceedances, ozone levels are affected by emissions
from the Houston/Galveston (HG) area, and that the HG area emissions
affect BPA's ability to meet attainment of the 1-hour ozone standard.
Because of the uncertainty in long term projections, EPA believes a
viable attainment demonstration that relies on weight of evidence (as
Texas does) should contain provisions for periodic review of
monitoring, emissions, and modeling data to assess the extent to which
refinements to emission control measures are needed. The Texas Natural
Resource Conservation Commission (TNRCC) submitted an enforceable
commitment in the April 2000 SIP submittal to perform a mid-course
review (including evaluation of all modeling, inventory data, and other
tools and assumptions used to develop this attainment demonstration).
The TNRCC committed that it will submit a mid-course review SIP
revision, with recommended mid-course corrective actions, to the EPA by
May 1, 2004.
On March 7, 1995, as part of our action approving VOC requirements,
we found that TNRCC had implemented RACT on all major sources in the
BPA area except those that were to be covered by post-enactment Control
Technique Guidelines (CTG's). 44 FR 12438 (March 7, 1995). Since that
time, many expected CTGs were issued as Alternative Control Technique
documents (ACTs). Of the expected CTGs and ACT's, BPA has major sources
in the following categories: Batch processing; reactors and
distillation; industrial wastewater; and Volatile Organic Liquid
Storage. EPA has approved measures as meeting RACT for the reactors and
distillation and the Volatile Organic Liquid Storage categories for the
BPA area. 64 FR 3841 (January 26, 1999), and 61 FR 55894 (October 30,
1996), respectively. EPA has found that the State is imposing RACT on
the batch processing and industrial wastewater categories in the BPA
area (65 FR 79745, December 20, 2000). While CTGs and ACTs were issued
for other categories such as wood furniture coating or aerospace
coating, there are no major sources in those categories in the BPA
area. TNRCC submitted, and EPA approved, negative declarations on these
categories (61 FR 55894, October 30, 1996). There are also no other
non-CTG/ACT major VOC sources in the BPA area that are not already
covered by a state rule approved by the EPA as meeting RACT. Therefore,
it is EPA's position that RACT is being implemented on all major VOC
sources in BPA.
Finally, Texas has submitted motor vehicle emissions budgets for
the 2007 attainment year for the BPA ozone nonattainment area.

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

In the NPR for the Texas attainment demonstration SIP published on
December 27, 2000, we stated that we could not finalize the proposed
actions unless and until we approved eight Texas rules covering
NO_X and VOC emissions control measures relied upon by the
modeled attainment demonstration for the BPA nonattainment area. These
actions have been approved as detailed below.
1. The NO_X rules for Electric Generating Facilities in
East and Central Texas (30 TAC sections 117.131, 117.133, 117.134,
117.135, 117.138, 117.141, 117.143, 117.145, 117.147, 117.149,
117.512), were approved by the EPA on March 16, 2001 (66 FR 15195);
2. The State-wide NO_X rules for Water Heaters, Small
Boilers, and Process Heaters (30 TAC sections 117.460, 117.461,
117.463, 117.465, 117.467, 117.469), were approved by the EPA on
October 26, 2000 (65 FR 64148);
3. The revised emission specifications in the BPA area for Electric
Utility Boilers, Industrial, Commercial or Institutional Boilers and
certain Process Heaters (30 TAC sections 117.104, 117.106, 117.108,
117.116, 117.206 as they relate to the BPA area, and the repeal of
sections 117.109 and 117.601 as they relate to the BPA area), were

[[Page 26916]]

approved by the EPA on October 26, 2000 (65 FR 64148);
4. The administrative revisions to the existing Texas
NO_X SIP (30 TAC sections 117.101-117.121, 117.201-117.223,
117.510, 117.520, and 117.570), were approved by the EPA on October 26,
2000 (65 FR 64148);
5. The two Agreed Orders entered into by TNRCC and Alcoa, Inc. and
TNRCC and Texas Eastman, were approved by the EPA on October 26, 2000
(65 FR 64148);
6. Lower RVP Program in East and Central Texas (30 TAC sections
114.1, 114.301, 114.302, and 114.304-114.309), was approved by the EPA
on April 26, 2001 (66 FR 20927);
7. Stage I vapor recovery Program in East and Central Texas (30 TAC
sections 115.222-114.229), was approved by the EPA on December 20, 2000
(65 FR 79745); and,
8. VOC rules as RACT for batch processing (30 TAC sections 115.160-
115.169) and wastewater (30 TAC sections 115.140-115.149), were
approved by the EPA on December 20, 2000 (65 FR 79745).

VII. Implementation of Reasonably Available Control Measures

Section 172(c)(1) of the Act requires SIPs to provide for the
implementation of all reasonably available control measures (RACM) as
expeditiously as practicable and for attainment of the standard.
Details of these requirements and applicable guidelines are provided in
the December 2000, NPR. As discussed in the NPR, EPA reviewed the SIP
submittal for the BPA area and found that it did not include sufficient
discussion concerning the rejection of certain available measures as
RACM for the specific BPA area. EPA reviewed potential available
measures, as documented in the RACM analysis section of the technical
support document (TSD) for the December 2000, NPR. EPA concludes that
this additional set of evaluated measures is not reasonably available
for the specific BPA area, because (a) some would require an intensive
and costly effort for numerous small area sources, (b) due to the small
percentage of mobile source emissions in the over-all inventory, some
are not cost-beneficial, and (c) since the BPA area relies in part on
reductions from the upwind HG area which are substantial, and the
reductions projected to be achieved by the evaluated additional set of
measures are relatively small, they would not produce emission
reductions sufficient to advance the attainment date in the BPA area
and, therefore, should not be considered RACM.
Although EPA encourages areas to implement available measures as
potentially cost-effective methods to achieve emissions reductions in
the short term, EPA does not believe that section 172(c)(1) requires
implementation of potential measures that either require costly
implementation efforts or produce relatively small emissions reductions
that will not be sufficient to allow the BPA area to achieve attainment
in advance of full implementation of all other required measures.

VIII. What Comments Were Received on This Proposed Approval, and
the Two Related Actions, and How Has the EPA Responded to Those?

EPA received comments from the public on the Notice of Proposed
Rulemaking (NPR) published on December 27, 2000 (65 FR 81786) for the
proposed approval of BPA area's ozone attainment demonstration and
attainment date extension. Comments were received from: Jefferson-
Orange-Hardin Regional Transportation Study Transportation Planning
Committee; City of Nederland; PDGlycol; Chevron Phillips Chemical
Company; City of Orange; Jefferson County Drainage District No. 6;
TNRCC; Beaumont Chamber of Commerce; City of Vidor; City of Port
Neches; City of Port Arthur; Hardin County Commissioners Court; Port
Arthur International Public Port; City of Beaumont; South East Texas
Regional Planning Commission; City of Lumberton; Commissioners Court of
Jefferson County; Orange County Commissioners Court; Southeast Texas
Environmental Managers; Entergy; South Hampton Refining Co.; City of
West Orange; Firestone Polymers; City of Pinehurst; Port of Beaumont
Navigation District; Lone Star Chapter Sierra Club; and, three
individuals.
EPA also received comments from the public on the proposed
rulemaking published on April 16, 1999 (64 FR 18864) which addressed
the Clean Air Act potential reclassification or eligibility for
extension of attainment date for the BPA area. In that notice, we
proposed two alternative options. One option was to find that the BPA
area had failed to attain the ozone one-hour NAAQS by the date
prescribed under the Act for moderate ozone nonattainment areas, or
November 15, 1996. Finalizing that finding would have resulted in the
BPA area being reclassified from moderate nonattainment to serious
nonattainment. Alternatively, we proposed to extend the attainment
date, providing that Texas met the criteria of our July 16, 1998
transport policy, ``Guidance on Extension of Attainment Dates for
Downwind Transport Areas.''
Finally, a number of the comments received in Docket A-98-47 on
EPA's notice regarding ``Extension of Attainment Dates for Downwind
Transport Areas'' 64 FR 12221 (March 25, 1999), are relevant to this
rulemaking. EPA incorporates its responses to those comments, set forth
in 66 FR 586 (January 3, 2001), insofar as herein relevant. EPA sets
forth responses to some of the general comments in Section A. Adverse
comments as they apply specifically to the BPA area are addressed in
Section C.
The following discussion summarizes and responds to all three sets
of comments.

A. 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 except in certain instances. 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 section 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

[[Page 26917]]

of Chevron. (The Supreme Court in Chevron detailed the process that a
reviewing court must go through in determining whether an agency's
construction of a statute is proper. The first step is the question
whether Congress' intent is clear. If Congress has directly spoken to
the precise question at issue, the agency must give effect to the
unambiguously expressed intent of Congress. Chevron U.S.A. v. Natural
Resources Defense Council, 467 U.S. 837 (1984).) 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. Although this comment specifically refers to
attainment date extensions for serious areas, the EPA addresses it here
in the context of granting extensions to moderate areas, such as the
BPA area.
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 of
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). (Phoenix was reclassified with no
demonstration of transport.)
On their face, the reclassification provisions do not provide for
any exemption from the reclassification process for areas affected by
ozone transport from other upwind areas. 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 provisions--section 110(a)(2)(D) and
110(a)(2)(A)--that obligates states to prohibit pollution--including
ozone and its precursors--from sources within the state that contribute
significantly to nonattainment and maintenance problems in downwind
areas (whether within that state or outside it). (Section 110(a)(2)(A)
does not expressly deal with transport but imposes a general obligation
on a state to do what is needed to meet its CAA obligations, which
include bringing nonattainment areas within the state into attainment
and, if upwind areas within the state contribute significantly to
nonattainment, dealing with emissions from those areas.) Congress was
cognizant of the need to control such emissions, and of the inequities
between upwind and downwind sources that could result if upwind areas
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.
Such controls were not imposed in the timeframes anticipated by
Congress. 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 and intrastate ozone transport problem to determine the
appropriate division of control responsibilities between the upwind and
downwind areas under the Clean Air Act. It was only through the work of
the Ozone Transport Assessment Group (OTAG), which consisted of members
from states (including the State of Texas), industry and environmental
groups, and EPA's subsequent NO_X SIP call, promulgated in
October, 1998, that a better scientific understanding of ozone
transport resulted and how to divide the responsibilities among and
within the states was established. These developments occurred after
the attainment date of November 1996 for the BPA area. Nor did Congress
intend that an upwind area within a state, but with a later attainment
date, such as HG, should accelerate the timetable provided for its own
attainment as an indirect means of controlling transported pollution in
a downwind area like BPA.
As EPA stated in its explanation of the legal basis for its
attainment date extension policy, the graduated control scheme in
sections 181 and 182 of the Act expressed Congressional intent that
areas have varying attainment dates, based on the severity of their air
quality problem. While all areas must attain ``as expeditiously as
practicable'', the more polluted areas are given later deadlines
because they must accomplish greater reductions. Thus many upwind areas
have later attainment dates than the downwind areas that they are
affecting. With respect to the BPA area, the upwind area affecting it,
the HG area, has an attainment date eleven years later than the BPA
area's original attainment date. EPA has interpreted section
110(a)(2)(A) of the Act as incorporating for areas within the same
state the requirement, analogous to section 110(a)(2)(D)(i)(I) for
areas in different states, that an upwind area, consistent with the
provisions of the Act, be prohibited from contributing significantly to
nonattainment in a downwind area.
EPA explained in its policy that these provisions ``demonstrate
Congressional intent that upwind areas be responsible for preventing
interference with timely downwind attainment.'' They must be
reconciled, however, with express Congressional intent that more
polluted

[[Page 26918]]

areas be allotted additional time to attain. Since Congress failed to
specify how to fill this gap, EPA's policy interprets the Act 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. Not to do so would result either in
penalizing downwind areas for upwind areas' pollution or shortening the
time for emissions reductions and attainment in the upwind areas--
timeframes that Congress had expressly determined should be lengthier.
To apply the reclassification provisions 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 upwind areas to the downwind areas would result in the
downwind areas' sources being required to implement potentially costly
control measures to offset the effects of upwind area pollution--
pollution that will be eliminated by emissions reductions in the upwind
areas 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,
thereby frustrating Congressional intent.
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. v. EPA, 22 F.3d 1125, 1135-36 (D.C.
Cir. 1994), 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 D.C. 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 recently,
to adequately 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 v.
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.
And lastly, Texas has benefitted from the OTAG/NO_X SIP
call experience. From this modeling we (EPA and Texas) gained a better
understanding of the role NO_X emissions play in the
formation and transport of ozone. Earlier we had thought local VOC was
the major contributing factor, but through the OTAG regional modeling
and other analyses being conducted during that time period we learned
that NO_X emissions play a major role in ozone formation and
that ozone transport distances are much longer than envisioned. As a
result TNRCC improved, through its regional modeling to develop
boundary conditions, the manner in which transported NO_X is
treated. Also, during this time period they benefitted from
improvements in our emissions inventories and updates to the carbon
bond IV chemistry in the model (e.g., improvement in the isoprene
chemistry). These improvements were necessary for us to understand the
ozone problem in BPA.
Though not a product of the OTAG or NO_X SIP call
modeling, TNRCC did use this time to better understand the land/sea
breeze phenomenon which has added a level of complexity to the HG and
BPA analysis not seen any where else in the country (with the exception
of some lake breeze effects in the Lake Michigan area). Emissions in
the HG and BPA areas are emitted into the local atmosphere where ozone
formation begins, later emissions and ozone formed are transported out
over the warm air over the Gulf of Mexico where the warmer temperatures
further activate the chemistry to form more ozone which is then
transported back inland over both areas. So far, current meteorological
models have not been able to accurately simulate this process. However,
our understanding of what is happening has improved to the degree that
we at least know better how to

[[Page 26919]]

interpret the photochemical model results.
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)(1), 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 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 the upwind area's contributions and the need for the
upwind area emissions reductions, requiring local contributions earlier
would not accelerate attainment, considering that EPA is requiring the
downwind areas to implement local controls as expeditiously as
practicable. Moreover, the difficulty until recently of assessing
relative contributions and responsibilities of upwind and downwind
areas lends support to extending attainment deadlines in these
circumstances, even without express statutory permission. See NRDC v.
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 and 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 176A and 184 of the CAA 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 if 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 CAA
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

[[Page 26920]]

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's 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), provides 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.
EPA disagrees with commenters that Congress intended section
110(a)(2)(D) and the other transport provisions to exclude the
possibility of further relief for downwind areas. These sections
express Congressional intent that downwind areas not be saddled with
responsibility for pollution beyond their control. Their premise was
that there would be a means of redress against upwind areas prior to
the downwind area's attainment date--a means that also would not be at
odds with Congress's 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),
and in the January 3, 2001, rulemaking granting extensions to serious
areas (66 FR 586), it took many years for EPA and the states to study,
analyze, and attempt to resolve the allocation of responsibility for
transported ozone pollution. A detailed description of the history of
efforts to address ozone transport through the 1990's may be found in
the preambles to these NO_X SIP Call and Section 126
rulemakings. 63 FR 57360-63, 64 FR 28253-54.
The BPA and HG areas are not subject to the NO_X SIP
call. But the analysis of transport developed for the NO_X
SIP Call aided EPA and Texas in understanding the transport problem in
the BPA area. See Section C, Response 2. The BPA SIP was submitted in
November 1999 and supplemented in April 2000. The HG SIP was submitted
in December 2000, the date for submission for all severe areas.
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, including
moderate areas such as the BPA area.
As set forth in Response l 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 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.
For example, 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.
Further, the imposition of the more stringent local controls would
still not bring the downwind area into attainment. It could not reach
attainment unless and until the upwind area reachs attainment and stops
affecting the downwind area's ability to attain.
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

[[Page 26921]]

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 1998. Thus, downwind states and areas 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 (including Texas), 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.
But even with the allocation of responsibilities now available, EPA
believes that Congress did not intend to accelerate the obligations of
upwind areas so that downwind areas 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 set
boundary conditions for modeling attainment demonstrations, did not
keep pace with Congress' 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 or to downwind areas within a state, 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 D.C. 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 l, 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 versus 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, how downwind areas should model their attainment
demonstrations to show the upwind areas' impact, 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

[[Page 26922]]

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 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 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 RACM measures, including motor vehicle measures, necessary to
provide for attainment and RFP by the applicable attainment date. Thus,
whatever attainment date is applicable, an attainment date extension,
etc., defines the outside date by which RACM measures, including motor
vehicle 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 such as the HG area, and accordingly longer
attainment dates, be forced to accelerate reductions on a timetable
that otherwise would not be required to meet their obligation to attain
``as expeditiously as practicable.'' Commenters want EPA to read the
requirement for upwind areas, not as mandating attainment ``as
expeditiously as practicable''--but as requiring

[[Page 26923]]

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 well be shown to continue to transport pollution to
an affected downwind area.
Congress provided statutory tools to address the issue of
transport, 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 drastic measures in order to allow the downwind areas
to meet their shorter attainment periods.
Although the attainment deadlines can be viewed 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,
in disregard 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 57403. ``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, 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 and part D. Upwind areas will be held to
section 110, part D and RACM requirements. EPA has determined the out-
of-state 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\ This is coupled with the upwind area's obligation to attain
as expeditiously as practicable. The upwind area in this instance, the
HG area, must reduce emissions as soon as practicable to eliminate its
significant contribution to the BPA area. The HG area must also 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 the upwind area needs to come into
attainment for the downwind BPA area to attain the standard.
---------------------------------------------------------------------------

\1\ 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.
---------------------------------------------------------------------------

The BPA area is implementing local measures by 2005. The schedule
is based on time necessary for the engineering and installation of
control equipment on point sources during their regular maintenance and
down times. This period must be as soon as possible, but such that BPA
does not incur an economic hardship. This timing is appropriate and
expeditious. Further, EPA recalculated the estimate of the future
design values based solely on modeled days when winds are not coming
from the HG area. The results indicate that the local measures in BPA
are adequate to show attainment on days when transport is not an issue.
This confirms that BPA has done all that they can to address the local
portion of their nonattainment problem.
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.
The Texas modeling for the BPA and HG modeling domain showed that
there were significant impacts from the upwind area on the downwind
area, no matter whether one used as a standard the ``but for,''
``significant contribution'' or ``affected by transport'' formulation.
EPA's review of the number of days when there is an exceedance in BPA
for the 1990-94 data shows 41 exceedances in the BPA area, of which 16
days are when winds are from the HG area. This is more than 3
exceedances per year (three being the maximum number of exceedances
allowed to still be in attainment) for BPA which are influenced by
transport from HG. Given the two areas are less than 24 hours transport
from each other, and the life time of ozone and its precursors, it is
reasonable to believe ozone observations and emissions emitted in HG
will arrive in BPA within 24 hours. This argument alone closely links
the two areas. Modeling which eliminated the HG emissions and resulted
in 10-30 ppb change in ozone levels in BPA, as documented in the TSD,
shows HG is

[[Page 26924]]

having a major impact on BPA's ability to attain the 1-hour ozone
standard.
Congress intended that an upwind area that significantly
contributes to a downwind area's nonattainment problem should bear
responsibility for that pollution. The Texas modeling shows that
significant contribution is made by the upwind area to the downwind
area seeking the attainment date extension. 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: Section 181(a)(4) is for a discrete and limited
purpose. The fact that this provision governing the initial
classification process expressly takes transport into account in a
specific way 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 FR 60001, 60003 (Nov. 6, 1997). 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 Texas 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 attainment date extension policy is an illegal
expansion of its 1994 overwhelming transport policy.
Response 15: The policy is not an illegal expansion of the
overwhelming transport policy, but an appropriate interpretation of the
provisions of the 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

[[Page 26925]]

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.
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). In this case, BPA has adopted
and will be implementing local regulations controlling pollution from
local sources, but which will not be able to bring about attainment due
to pollution caused by transport due to the transport from the HG area
preventing the BPA area attaining.
Comment 17: EPA's allegation that additional local measures ``will
become superfluous once upwind areas reduce their contribution to the
pollution problem,'' 64 FR 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 area's being granted a later attainment
deadline. The BPA area has not delayed or postponed the effectiveness
of measures because its attainment date is being extended. Texas is
enforcing its attainment measures as expeditiously as practicable. The
BPA area is implementing local measures by 2005. The schedule is based
on time necessary for the engineering and installation of control
equipment on point sources during their regular maintenance and down
times. This period must be as soon as possible, but such that BPA
incurs disproportionate economic hardship. This timing is appropriate
and expeditious. Further, EPA recalculated the estimate of the future
design values based solely on modeled days when winds are not coming
from HG. The results indicate that the local measures in BPA are
adequate to show attainment on days when transport is not an issue.
This confirms that BPA has done all that it can to address the local
portion of its nonattainment problem. Thus EPA's interpretation is not
unexplained, arbitrary, nor capricious. As EPA has explained, it seeks
to reconcile and coordinate the responsibilities of the HG and BPA
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 reasonably
available measure is required as RACM if it is needed for attainment or
will advance the attainment date. EPA is enforcing this requirement,
but allowing the downwind areas 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 areas 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) an upwind area's SIP would ensure that
the upwind area's pollution contributing to NAAQS violations in the
downwind area would be controlled, no later than the downwind area's
attainment date, (2) the upwind area 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) the downwind area 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, the upwind area's SIP would ensure that the
upwind area's pollution contributing to violations in the downwind area
would be controlled, prior to the downwind area's attainment date. But
in the circumstances actually confronting EPA and Texas, as EPA has
explained in prior responses, it was not possible without accelerating
the HG area attainment date, to control upwind transport prior to BPA's
original attainment date. Thus, in order to allow the upwind area its
alloted time to attain, and to avoid imposing on the downwind area a
burden Congress did not intend, EPA proposed interpreting the Act to
adjust BPA's attainment deadlines. 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.

[[Page 26926]]

Response 20: The boundary for the BPA nonattainment area was
established and codified in 40 CFR part 81 (see 56 FR 56694, November
6, 1991; and, 61 FR 14496, April 2, 1996). The modeling done by OTAG
and by EPA in the SIP call and the local modeling done in connection
with the BPA attainment demonstration represent the best available
modeling.
Comment 21: EPA purports to apply its policy to moderate and
serious areas, but moderate areas should already have been bumped up to
serious, because their attainment date was November 15, 1996, and the
Act requires EPA to reclassify an area within six months of its
attainment date under section 181(b)(2)(A). Thus, moderate areas should
not be at issue, because such areas should be in serious status, and
therefore the relevant bump-up should be from serious to severe.
Response 21: As EPA has noted, its attainment date extension policy
and an adequate understanding of ozone transport were not developed
until after the attainment date for moderate areas had passed. See
Response to Comment 1. Nevertheless, EPA believes that to deny
eligibility for the attainment date extension to moderate areas
affected by transport because the policy and science were not available
earlier, would work an injustice. Moreover, EPA believes that applying
the policy to these areas is consistent with Congressional intent and
with the Congressional approach of applying other types of attainment
date extensions after an area has been unable to reach attainment. See,
for example, section 181(a)(5).
Under section 181(a)(5), EPA may determine that an area has
qualified for an extension after it has failed to attain in its
attainment year. Section 181(a)(5) provides that EPA may grant an
extension of one year (``the Extension Year'') if, in relevant part,
``no more than 1 exceedance of the [ozone standard]
has occurred in the
area in the year preceding the Extension Year.'' This procedure
presumes that the area did not attain in its attainment year, and
requires a review of data to determine the number of exceedances in the
original attainment year prior to the granting of the extension. Thus,
Congress knew and approved of a system for granting extensions after an
area had already failed to attain according to its original schedule.
EPA's granting of an extension to the BPA area after its original date
for attainment has lapsed is therefore consistent with Congressional
intent and the statutory scheme that Congress established in the Act.
In the case of the BPA area, EPA did not act to reclassify this
area to serious after its attainment date had passed, nor does EPA
believe that it would be appropriate to do so retroactively. Nor does
EPA believe that it is consistent with the statutory scheme or
Congressional intent to deem the BPA area, in the absence of a notice-
and-comment rulemaking on reclassification, to have somehow
constructively been bumped up to serious. Moreover, if EPA were to deny
the BPA area the attainment date extension and reclassify the area,
reclassifying the area to severe would create an injustice. The area
would then be required to impose severe area requirements without ever
having been afforded an opportunity to attain the standard by employing
serious area requirements. Such an approach would in effect impose a
retroactive reclassification to serious, coupled with a second
reclassification to severe. The U.S. District Court for Washington, DC,
in Sierra Club v. Whitman 98-2733 (CCK) (January 29, 2001 Order),
declined to impose a retroactive reclassification in part because it
would create this kind of injustice.
Comment 22: EPA's reliance on section 110(a)(2)(D)(i)(l) and
section 110(a)(2)(A) for the proposition that EPA is statutorily
authorized to extend attainment dates expressly set under sections 181
and 182 of the Act is erroneous. Section 110(a)(2)(A) states that each
SIP shall ``include enforceable emission limitations and other control
measures * * * for compliance, as may be necessary to meet the
applicable requirements of this chapter.'' The provision in no way
gives EPA the ability to extend the attainment dates expressly provided
for under sections 181 and 182. In fact, EPA's statement that the EPA
interprets section 110(a)(2)(A) to incorporate the same requirement as
section 110(a)(2)(D)(i)(l) that upwind States are prohibited from
interfering with the air quality of downwind states that somehow
downwind states can magically ignore their attainment dates under
section 110(a)(2)(A), a provision that does not even expressly deal
with transport.
Response 22: The commenter mistakes the role of EPA's
interpretation of section 110(a)(2)(A) in supporting EPA's attainment
date extension policy. EPA simply reads section 110(a)(2)(A) as
creating, in the intrastate context, a responsibility on the part of a
state to control upwind pollution originating in its borders that
affects another in-state nonattainment area. This responsibility is
analogous to the responsibility the state has under section
110(a)(2)(D) to a nonattainment area located in another state that is
affected by pollution from within the upwind state's borders. But, as
EPA pointed out in its attainment date extension policy, EPA believes
that this responsibility must be harmonized and read consistently with
the graduated attainment date scheme that allows upwind areas with
later attainment dates additional time to obtain emissions reductions.
In the circumstance of an upwind area with a later attainment date, EPA
believes that the upwind area should not be forced to accelerate
attainment solely for the purpose of discharging its obligations to the
downwind area under either section 110(a)(2)(A) or 110(a)(2)(D). EPA
believes that Congress intended to authorize attainment date extensions
in the downwind area when necessary to reconcile the need for upwind
reductions with the timetable for attainment in the upwind area,
whether that attainment area be within or outside the State.

B. Comments Received in Response to April 16, 1999, Notice

Comment 1: Among the comments received, twenty comment letters were
received voicing strong statements of support for EPA not to reclassify
the BPA nonattainment area from moderate to severe. No adverse comments
were received. These commenters asserted that reclassification would
put the economic viability of the BPA area in jeopardy. The commenters
believed that the BPA area was affected by transport of ozone and ozone
precursor chemicals from the HG area.
Response 1: EPA has reviewed the TNRCC SIP submittals and it is our
technical opinion that Texas has demonstrated that during some BPA
exceedances, ozone levels are affected by emissions from the HG area,
and that the HG area emissions prevent BPA from attaining the 1-hour
ozone standard prior to the time HG implements all measures necessary
for HG to attain the 1-hour standard.
EPA recalculated the estimate of the future design values based
solely on modeled days when winds are not coming from HG. The results
indicate that the local measures in BPA are adequate to show attainment
on days when transport is not an issue. This confirms that BPA has done
all that they can to address the local portion of their nonattainment
problem.
EPA's review of the number of days when there is an exceedance in
BPA for the 1990-94 data shows 41 exceedances in the BPA area, of which
16 days are when winds are from the HG area. This is more than 3
exceedances per year

[[Page 26927]]

(three being the maximum number of exceedances allowed to still be in
attainment) for BPA which are influenced by transport from HG. Given
the two areas are less than 24 hours transport from each other, and the
life time of ozone and its precursors, it is reasonable to believe
ozone observations and emissions emitted in HG will arrive in BPA
within 24 hours. This argument alone closely links the two areas.
Modeling which eliminated the HG emissions and resulted in 10-30 ppb
change in ozone levels in BPA, as documented in the TSD, shows HG is
having a major impact on BPA's ability to attain the 1-hour ozone
standard. BPA has adopted and will be implementing local regulations
that modeling demonstrates would eliminate exceedances on those days
when transport is not involved, but which will not be able to bring
about attainment because transport would continue to cause a sufficient
number of exceedances such that violation of the standard would
continue. Transport from the HG area will prevent the BPA area from
attaining. See our responses in Section (A), comments 1, 5, 10, 11, 16
and 17, regarding EPA's standard for determining the contribution of
transport to the BPA area. Furthermore, EPA's Transport Policy
supercedes EPA's earlier Overwhelming Transport Policy. See the
response in Section (A), comments 15 and 16.

C. Comments Received in Response to December 27, 2000, Notice

Twenty-seven documents were received in response to the December
2000 notice. Twenty-six documents supported the proposed rule. These
are summarized and addressed as comment 1. One document contained
comments adverse to the proposed rule. The comments in that document
are listed and responded to individually as comments 2 through 21.
Comment 1: Twenty-six documents were received in support of various
aspects of the December 27, 2000, proposal to extend the ozone
attainment date for the BPA ozone nonattainment area to November 15,
2007, while retaining the area's current classification as a moderate
ozone nonattainment area. The commenters supported the EPA technical
opinion that Texas has demonstrated that during a significant portion
of BPA exceedances, ozone levels are affected by emissions from the HG
area, and that the HG area emissions affect BPA's ability to attain the
1-hour ozone standard. Many stated their belief that the technical
basis and legal rationale are sound.
Response 1: The EPA is in general agreement with the commenters who
support the proposed actions in our December 27, 2000, NPR. A number of
the commenters appropriately stated opinions such as: ``By proposing to
extend BPA's ozone attainment date, EPA has rightfully exercised its
July 16, 1998 policy regarding attainment date extensions for downwind
transport areas. The technical basis and legal rationale for extending
a downwind transport area's attainment date were clearly articulated in
EPA's July 1998 policy memorandum and in its response to comments
regarding similar proposals to extend the attainment dates of the
Western Massachusetts, Washington, DC, and Connecticut nonattainment
areas.'' The previous responses to comments detail our interpretation
of the transport policy, our rationale for granting attainment date
extensions for nonattainment areas located downwind of nonattainment
areas that have attainment dates later than the downwind areas, and the
relation of these interpretations to the CAA.
Comment 2: BPA has failed to attain. EPA has a statutory duty to
determine that BPA has failed to meet the November 15, 1996 attainment
deadline for moderate ozone areas. EPA has been in violation of the Act
since that date, and is subject to a lawsuit requesting a court to
order the agency to act on the finding of non-attainment. [T]he ambient
air quality data demonstrate clearly that the BPA area did not meet the
ozone standard and that air quality is continuously and steadily
deteriorating from 1996 to today. BPA has continued to experience ozone
exceedances each year since 1996 through 2000, which indicates the need
for the area to adopt a stringent SIP. BPA should have been notified of
their failure to attain no later than May 15, 1997. Contingency
measures should have been implemented immediately, and the area
reclassified from moderate to serious.
Response 2: EPA believes it is fulfilling its duties under the
Clean Air Act by applying the attainment date extension to the BPA
area, or in the alternative, proposing to reclassify the area.
In the proposed rulemaking published on April 16, 1999 (64 FR
18864), we proposed, as one alternative, to find, pursuant to section
181(b)(2) of the Clean Air Act, that the BPA area had failed to attain
the ozone one-hour NAAQS by the date prescribed under the Act for
moderate ozone nonattainment areas, or November 15, 1996. If we were to
finalize such a finding, we would then have published a notice that the
BPA area is reclassified from moderate nonattainment to serious
nonattainment.
Alternatively, we proposed to extend the area's attainment date,
providing that Texas meet the criteria of our July 16, 1998 transport
policy, ``Guidance on Extension of Attainment Dates for Downwind
Transport Areas.'' We stated that if Texas submitted a SIP that met the
July 1998 transport policy, we would issue in a Federal Register notice
a supplemental proposal to extend the BPA area's attainment date as
appropriate. Further, if Texas did not submit a SIP that met the July
1998 transport policy, or failed to submit a SIP, we would finalize the
proposed finding of failure to attain, and the BPA area would be
reclassified as a serious ozone nonattainment area.
The July 16, 1998, policy memorandum entitled ``Guidance on
Extension of Air Quality Attainment Dates for Downwind Transport
Areas,'' outlines the criteria by which the attainment date for an area
may be extended. Following this guidance, and in consideration of the
evolution of our understanding of ozone formation and transportation,
EPA proposed the actions in the April 19, 1999, and the December 27,
2000, Federal Registers. The issues of the legality of the transport
guidance and the guidance's relation to the CAA have been discussed in
the responses to the March 25, 1999, notice, and are incorporated
herein insofar as relevant. See Section VIII (A).
Overall, the BPA air quality has not steadily deteriorated over
time, as stated by the commenters. TNRCC analyzed the historic air
quality in the BPA ozone nonattainment area for the period of 1975 to
1999. While there is the expected sawtooth spread of data (due
primarily to meteorologic time specific fluctuations) the analyses
demonstrate that the area's ozone design value exhibits a general
decrease since 1975 (this can be seen on Figure 6.3-2 of the April 25,
2000 BPA SIP submission). This downward trend is almost as great for
the period 1991-1999 as for the earlier period. It is EPA's technical
opinion that this long-term downward trend is likely to continue. In
addition, the air quality will keep improving due to substantial
reductions in precursor emissions in both HG and BPA, due to both state
and federal emission control requirements. This includes the impacts of
the implementation of the NO_X RACT and beyond-RACT
NO_X rules for the BPA area.
The BPA area is implementing local measures by 2005. The schedule
is based on time necessary for the

[[Page 26928]]

engineering and installation of control equipment on point sources
during their regular maintenance and down times. This period must be as
soon as possible, but such that BPA does not incur an economic
hardship. This timing is appropriate and expeditious. Further, EPA
recalculated the estimate of the future design values based solely on
modeled days when winds are not coming from HG. The results indicate
that the local measures in BPA are adequate to show attainment on days
when transport is not an issue. This confirms that BPA has done all
that they can to address the local portion of their nonattainment
problem.
EPA's review of the number of days when there is an exceedance in
BPA for the 1990-94 data shows 41 exceedances in the BPA area, of which
16 days are when winds are from the HG area. This is more than 3
exceedances per year (three being the maximum number of exceedances
allowed to still be in attainment) for BPA which are influenced by
transport from HG. Given the two areas are less than 24 hours transport
from each other, and the life time of ozone and its precursors, it is
reasonable to believe ozone observations and emissions emitted in HG
will arrive in BPA within 24 hours. This argument alone closely links
the two areas. Modeling which eliminated the HG emissions and resulted
in 10-30 ppb change in ozone levels in BPA, as documented in the TSD,
shows HG is having a major impact on BPA's ability to attain the 1-hour
ozone standard.
Texas has benefitted from the OTAG/ NO_X SIP call
experience. From this modeling we gained a better understanding of the
role NO_X emissions play in the formation and transport of
ozone. Earlier we had thought local VOC was the major contributing
factor, but through the regional modeling and other analyses being
conducted during that time period we learned that NO_X is a
significant contributor and has much longer transport distance than
earlier envisioned. As a result TNRCC improved, through regional
modeling to develop boundary conditions, the manner in which
transported NO_X is treated. Also, during this time period
they benefitted from improvements in our emissions inventories and
updates to the carbon bond IV chemistry in the model (e.g., improvement
in the isoprene chemistry). These improvements were necessary for us to
understand the ozone problem in the BPA area.
Texas' conclusions regarding transport from the HG area were not a
product of the OTAG or NO_X SIP call modeling. However, TNRCC
did use the time during which OTAG met to better understand the land/
sea breeze phenomenon which has added a level of complexity to the HG
and BPA analysis not seen anywhere else in the country. Emissions and
ozone in the HG and BPA areas are emitted into the local atmosphere
where ozone formation begins, transported out over the warm air over
the Gulf of Mexico where the warmer temperatures further activate the
chemistry to form more ozone which is then transported back inland over
both areas. So far, our meteorological models have not been able to
accurately simulate this process. However, our understanding of what is
happening has improved to the degree that we at least know better how
to interpret the photochemical model results.
It is EPA's technical opinion that based on the weight-of-evidence
and the modeling, the State's control strategy should provide for
attainment by November 15, 2007.
Comment 3: EPA cannot invent rationales for the state. EPA concedes
that the state has failed to adequately justify rejection of identified
measures as RACM. Rather than disapproving the SIPs on that basis,
however, EPA proceeds to provide its own rationales for why the states
might have decided to reject these measures as RACM. EPA has no
authority to proceed in this manner. The Act and EPA guidance require
the states to perform the required RACM analysis, and to justify their
rejection of any available control measures. EPA's role is limited to
reviewing what the states have submitted, and approving or disapproving
it. 42 U.S.C. 7410(k)(3); Riverside Cement Co. v. Thomas, 843 F.2d 1246
(9th Cir. 1988). EPA ``may either accept or reject what the state
proposes; but EPA may not take a portion of what the state proposes and
amend the proposal ad libitum.'' Id. The approach EPA is proposing is
nowhere authorized by the Act. It also conflicts with the Act's
requirement that SIP revisions be subjected to public notice and
hearing at the state level before submission to EPA. 42 U.S.C.
7410(a)(1). If states are going to reject control measures, their
decision to do so and the rationale therefor must be subject to notice
and hearing at the state and local level. Indeed, EPA's own guidance
emphasizes the importance of local determinations of the feasibility of
specific measures as RACM. 57 FR at 13560.
Response 3: The State adopted all the measures, including the
additional more stringent point source rules, it believed necessary for
meeting the RACM requirement under section 172(c)(1). During the
State's public comment periods on the overall SIP and its supporting
rules, commenters raised the RACM requirement for the point source
rules only. Commenters believed that there was no need for the more
stringent point source rules. The State addressed the comment and
explained why the beyond-RACT point source rules were necessary for
attainment and were RACM for the BPA area. The EPA by reviewing a
particular small sub-set of non-adopted control measures is not
amending the SIP; EPA analyzed the non-adoption of this particular
small sub-set of control measures and is approving the SIP with a
conclusion that it was acceptable for the State to not adopt any
further additional measures to meet the RACM requirement of the Clean
Air Act.
The commenter cites Riverside Cement for the proposition that EPA
cannot perform an analysis of whether the State's plan complies with
the CAA's RACM requirement. The EPA believes that the holding of that
case is inapplicable to these facts. In Riverside Cement, EPA approved
a control requirement establishing an emission limit into the SIP and
disregarded a contemporaneously-submitted contingency that would allow
the State to modify the emission limit. Thus, the court concluded that
EPA ``amended'' the State proposal by approving into the SIP something
different than what the State had intended. 843 F.2d at 1248.
In the present circumstances, EPA did not attempt to modify a
substantive control requirement of the submitted plan. Rather, EPA
performed an additional analysis of a small sub-group of measures to
determine if the plan, as submitted, fulfilled the substantive RACM
requirement of the Act. The statute places primary responsibility on
the States to submit plans that meet the Act's requirements. However,
nothing in the Act precludes EPA from performing those analyses, and
the Act clearly provides that EPA must determine whether the State's
submission meets the Act's requirements. Under that authority, EPA
believes that it is appropriate, though not mandated, that EPA perform
independent analyses to determine whether a submission meets the
requirements of the Act. The EPA has not attempted to modify the
State's submission by either adding or deleting a substantive element
of the submitted plan. By virtue of the supplemental RACM analysis, EPA
has concluded that the State's submission contains control measures
sufficient to meet the RACM requirement. EPA also believes the State's
hearings sufficiently addressed

[[Page 26929]]

the fact that the State had not included additional control measures as
RACM. This is further supported by the fact that no adverse comments
were received raising the need for additional RACM.
Comment 4: Inappropriate grounds for rejecting RACM.
Comment 4(a): EPA's grounds for rejecting measures as RACM are
inappropriate. EPA employed the following three grounds for rejecting
measures as RACM: (a) The measures are likely to ``require an intensive
and costly effort for numerous small area sources''; (b) ``due to the
small percentage of mobile source emissions in the over-all inventory,
some are not cost-beneficial,'' and (c) ``since the BPA [Beaumont/Port
Arthur]
area relies in part on reductions from the upwind HG [Houston/
Galveston]
area which are substantial, and the reductions projected to
be achieved by the evaluated additional set of measures are relatively
small, they would not produce emission reductions sufficient to advance
the attainment date in the BPA [Beaumont/Port Arthur]
area and,
therefore, should not be considered RACM.'' None of these grounds are
legally or rationally sufficient bases for rejecting control measures.
Response 4(a): The EPA's approach toward the RACM requirement is
grounded in the language of the Clean Air Act. Section 172(c)(1) states
that a SIP for a nonattainment area must meet the following
requirement, ``In general. Such plan provisions shall provide for the
implementation of all reasonably available control measures as
expeditiously as practicable (including such reductions in emissions
from existing sources in the area as may be obtained through the
adoption, at a minimum, of reasonably available control technology) and
shall provide for attainment of the national primary ambient air
quality standards.'' [Emphasis added.]
The EPA interprets this language
as tying the RACM requirement to the requirement for attainment of the
national primary ambient air quality standard. The Act provides that
the attainment date shall be ``as expeditiously as practicable but no
later than * * *'' the deadlines specified in the Act. EPA believes
that the use of the same terminology in conjunction with the RACM
requirement serves the purpose of specifying RACM as the way of
expediting attainment of the NAAQS in advance of the deadline specified
in the Act. As stated in the ``General Preamble'' (57 FR 13498 at
13560, April 16, 1992), ``The EPA interprets this requirement to impose
a duty on all nonattainment areas to consider all available control
measures and to adopt and implement such measures as are reasonably
available for implementation in the area as components of the area's
attainment demonstration.'' [Emphasis added.]
In other words, because
of the construction of the RACM language in the CAA, EPA does not view
the RACM requirement as separate from the attainment demonstration
requirement. Therefore, EPA believes that the Act supports its
interpretation that measures may be determined to not be RACM if they
do not advance the attainment date. In addition, EPA believes that it
would not be reasonable to require implementation of measures that
would not in fact advance attainment. See 57 FR 13560.
The term ``reasonably available control measure'' is not actually
defined in the definitions in the Act. Therefore, the EPA
interpretation that potential measures may be determined not to be RACM
if they require an intensive and costly effort for numerous small area
sources is based on the common sense meaning of the phrase,
``reasonably available.'' A measure that is reasonably available is one
that is technologically and economically feasible and that can be
readily implemented. Ready implementation also includes consideration
of whether emissions from small sources are relatively small and
whether the administrative burden, to the States and regulated
entities, of controlling such sources was likely to be considerable. As
stated in the General Preamble, EPA believes that States can reject
potential measures based on local conditions including cost. 57 FR
13561.
Also, the development of rules for a large number of very different
source categories of small sources for which little control information
may exist will likely take much longer than development of rules for
source categories for which control information exists or that comprise
a smaller number of larger sources. The longer the time frame for
development of rules by the State would decrease the possibility that
the emission reductions from the rules in the nonattainment area would
advance the attainment date earlier than would be achieved from the
larger amount of reductions expected from the upwind controls of the HG
area with a later statutory attainment date.
Similar to the above analysis, the EPA interpretation that
potential mobile source measures may not be RACM if they represent a
small percentage of mobile source emissions in the over-all inventory,
is again based on the fact that these measures could not advance the
attainment date. For instance, as detailed in the Technical Support
Document (TSD) for this proposed action, when compared to emission
reductions necessary for attainment, the emission reductions from
transportation control measures (TCMs) that could potentially be
implemented are only a small percentage (3.3% for NO_X) of
emission reductions needed. From this analysis, EPA concludes that
implementation of these TCMs would not produce emission reductions
sufficient to advance the attainment date.
Comment 4(b): EPA's approach also illegally assumes that the
attainment dates for these areas can be extended beyond November 15,
1999 via the Agency's downwind transport policy. Once an attainment
deadline has passed, EPA must require SIPs to include all available
control measures to provide for attainment as soon as possible. Delaney
v. EPA, 898 F.2d 687 (9th Cir. 1990).
Response 4(b): As noted above, EPA concluded that RACM is linked in
the language of the Clean Air Act to the attainment date. We elsewhere
respond to comments that object to EPA's approval of attainment date
extensions and do not restate those responses here. See Section
VIII(A). Once an attainment date is set for an area, an analysis can
then be made to determine whether any additional measures that may
potentially be RACM would advance that attainment date. EPA is setting
November 15, 2007 as the attainment date for the BPA area. We do not
consider measures as RACM for the BPA area if they do not advance that
attainment date. We are requiring the State to demonstrate that all
local measures that are RACM are implemented as expeditiously as
practicable, however.
Comment 5: Failure to quantify reductions needed to attain sooner.
Even if advancement of the attainment date were a relevant test for
RACMs, EPA has failed to rationally justify its claim that additional
RACMs would not meet that test. To begin with, neither the Agency nor
the state have quantified in a manner consistent with EPA rules and
guidance the emission reductions that would be needed to attain the
standard prior to achievement of emission reductions required under the
NO_X SIP call.
Response 5: Elsewhere in this response to comments on the proposed
approval of the 1-hour ozone SIP, EPA addresses the issue of the
attainment date extension. See Section VIII(A). In that section, EPA
justified the position that areas affected by transport may need
additional time to attain, and in some cases may need an extension out

[[Page 26930]]

to either the date the NO_X SIP call will be implemented
(where applicable) or the attainment date of an upwind area if it
cannot attain without the reductions from the upwind area. Please note
that while the commenter makes reference to the NO_X SIP
call, Texas is actually not included in the NO_X SIP call.
However, it should also be noted that even though they were not
included, Texas still showed that transport from areas outside of the
BPA area, but within the State including attainment areas, contribute
to exceedances in the BPA area. Therefore, Texas included control
measures for regional emissions reductions (including in attainment
areas) as part of the BPA attainment demonstration SIP, in a manner
similar to those undertaken by the states included in the
NO_X SIP call.
For the case where the upwind area, e.g., the HG area, precludes
the downwind area (e.g., BPA) from reaching attainment, it would be
futile to perform analyses of whether additional emission reductions in
the BPA nonattainment area itself (whether RACM or beyond RACM) would
advance the attainment date when it is already demonstrated through the
BPA/HG specific modeling that the BPA area cannot attain sooner than
the upwind HG nonattainment area, with any combination of local
measures. In addition, with regard to the local attainment modeling for
the BPA area's self-generated exceedances, all local measures needed
for expeditious attainment, are already or will soon be implemented.
EPA considers the implementation of the local control measures (i.e.,
the measures within the BPA area itself) to be as expeditious as
practicable. Issues concerned with timing of implementation of
additional measures are also discussed above. As noted previously, EPA
cannot technically distinguish which particular emissions reductions in
the HG area would contribute to attainment in the BPA area.
Comment 6: Inadequate RACM analysis. EPA's RACM analysis is grossly
inadequate in several key respects.
Comment 6(a): The Agency fails to provide the technical basis and
calculations by which it developed its emission reduction estimates for
various RACMs.
Response 6(a): EPA's RACM analysis (Appendix C to the TSD for the
December 27, 2000 notice) did provide the technical basis and
calculations for its emission reduction estimates for controls possible
for the source categories in the emission inventory. The technical
basis for the analyses and the assumptions used in the calculation of
estimated emission reductions for TCMs were derived from a review of
the literature on the implementation and effectiveness of
TCM's.2 3 The TCMs evaluated depend on the level of
implementation. Implementation variables, representing levels of
implementation effort, are implicit in the range of effectiveness for
each category of TCM. EPA does not believe it is necessary, or even
possible, to evaluate every explicit variation of TCM's in order to
adequately determine if it is reasonably available. EPA believes that
using the midpoint level of effectiveness represents a level of
implementation effort that is not so high as to be economically
infeasible, nor so low as to be ineffective.
---------------------------------------------------------------------------

\2 3\ Transportation Control Measures: State Implementation Plan
Guidance, US EPA 1992; Transportation Control Measure Information
Documents, US EPA 1992; Costs and Effectiveness of Transportation
Control Measures: A Review and Analysis of the Literature, National
Association of Regional Councils 1994.
---------------------------------------------------------------------------

Comment 6(b): EPA's analysis looks at only a small universe of
potential measures as RACM, and does not evaluate all of the measures
identified in public comment and other sources. Among the controls
ignored by the EPA analysis are: (a) Expansion and increased stringency
of I/M; (b) diesel I/M; (c) expanded remote sensing programs; (d) CARB
diesel fuel standards; (e) clean fuel vehicle programs; (f) lawn
equipment replacement programs, adoption of SCAQMD controls for VOC and
NO_X sources; (g) adoption of the SCAQMD rule requiring
conversion of many diesel fleets to alternative fuel or clean diesel/
hybrid technologies; (h) elimination of solvent decreasing; (i) limits
on pesticide application during the ozone season; (j) source reduction
for discharges to sewage plants; improved rule-effectiveness measures;
(k) enhanced Stage II vapor recovery enforcement; (l) NO_X
RACT to 25 tons per year; and (m) statewide NO_X limits. See,
e.g., letter of July 6, 1999 to Gregg Cooke, EPA Region 6, the November
15, 2000 comments by David Baron to EPA Region 3, and his prior
comments to EPA Region 3 on the Washington, DC SIP. It is arbitrary and
irrational for EPA to assume that these measures can and will be
implemented in complete isolation from one another.
Response 6(b): EPA's RACM analysis was intended to address all
potential categories of stationary and mobile sources that could
provide additional emission reductions that might be considered RACM.
The commenter mentions a long list of measures they believe were
ignored by the EPA in its analysis. However, the EPA did consider a
wide range of measures, including appropriate measures from the
commenters' listing, and the measures mentioned by the commenters were
either not considered to be technically or economically feasible in the
BPA area's situation or would not advance attainment. Examples include:
Expansion and increased stringency of I/M--In 40 CFR
section 51.350(a)(4) requires only urbanized areas with population of
more than 200,000 to implement an I/M program, unless that area is in
the ozone transport Region. In the final rulemaking on this, EPA said,
``the 200,000 population cut-off for basic programs is authorized by
the Act because sections 182(a)(2)(B)(i) and 182(b)(4) require
implementation only of an I/M program no less stringent than that
required under pre-1990 EPA I/M guidance. EPA's pre-1990 I/M guidance
required implementation of basic I/M programs only in urbanized areas
of 200,000 population. It is true that some moderate areas would not be
required to implement I/M programs if their population were under
200,000, despite the fact that section 182(b)(4) requires a basic I/M
program in all moderate areas. However, the basic program that is
required is a program that applies only to areas of 200,000 or more
population.'' 60 FR 48032, 48033 (September 18, 1995). To now require
I/M under the guise of a RACM analysis would contradict the flexibility
intended by promulgation of the regulation and thwart the intent of
Congress. Implementation of an I/M program would not advance the
attainment.
Diesel I/M--Due to the state of instrumentation and
certification, this type of program is not presently technically and
economically feasible for the BPA area and as such is not RACM.
Expanded remote sensing programs--Remote sensing would not
provide sufficient emission reductions to justify the cost of the
implementation, nor would it advance attainment, for the BPA area.
CARB diesel fuel standards--Texas has passed a low
emission diesel program similar to the California diesel program and
has submitted that program along with a request for a waiver of federal
preemption under 211(c)(4)(C) of the CAA. The Texas program goes beyond
the California program in that it also controls cetane, in addition to
sulfur and aromatic hydrocarbons. If approved by EPA, it would apply in
the BPA area. It should be noted that the Texas Legislature is
considering a measure that would void

[[Page 26931]]

this regulation. On April 23, 2001, the Texas House of Representatives
Environmental Regulation Committee reported favorable on Texas House
Bill 2649. Currently, section 2 of this Bill amends section 382.037(g)
of the Texas Health and Safety Code. If passed by both houses of the
Texas Legislature and signed by the Governor, this measure will
preclude TNRCC from adopting any fuel control measure. While any loss
in emissions reductions from this measure would have to be offset by
Texas, lack of legislative authority would be valid rationale for not
including fuel controls as reasonably available. In addition,
currently, EPA is in the process of performing a comprehensive review
and analysis of data to quantify the emission reduction effects of low
emission diesel fuels. The outcome of this evaluation could result in a
need to reconsider the emission reduction estimate used by the State in
their low emission diesel rule. We expect the evaluation process to be
completed by May of 2001. If the results of EPA's evaluation indicates
that Texas has overestimated the emission reductions attributable to
their low emission diesel rule, this measure may no longer be
considered reasonably available (depending on the cost associated with
low emission reductions). We would work with the State to address any
shortfall in emission reductions that may be realized because of
results from the evaluation. However, due to transport from HG this
control measure would not advance the attainment date in the BPA area,
and the modeling demonstrates that it is not needed to address the
local contribution.
Clean Fuel Vehicle programs--Texas currently has a Clean
Fleet Program substitute plan that exceeds the emissions reductions
requirements of the Federal Clean Fuel Fleet program. EPA recently
approved this program and it is in effect in the BPA area (66 FR 9203,
dated February 7, 2001).
Lawn equipment replacement--Combining the economic impact
on individuals with a small reduction in emissions with the difficulty
in enforcement results in a finding that this measure would not be
RACM.
The responses for the other items listed by the commenters are
similar. As with the diesel and clean fuel vehicle programs listed by
the commenters, the State has gone beyond requirements in several
programs. EPA recognizes that many control measures, particularly TCMs,
are more effective if done in conjunction with others. EPA maintains
that it has considered appropriate measures for RACM for the BPA area.
EPA also maintains that it would be impossible to analyze a seeming
infinite set of measures for possible benefits. The EPA's analysis did
look at all appropriate measures in various applicable categories and
concluded that as a whole these categories and/or measures would not
advance attainment or would otherwise not be reasonably available, for
the BPA nonattainment area.
Comment 7: Stationary sources: The analysis of potential emission
reductions from additional stationary source RACMs is flawed in several
key respects.
Comment 7(a): EPA arbitrarily excluded from consideration a base
percentage of the stationary source categories at smaller facilities.
EPA asserts that this exclusion was based on the assumption that the
contribution from these categories ``would be considered too small and
too numerous to regulate individually.'' This is an arbitrary basis.
Response 7(a): EPA does not consider this exclusion (the bottom
20%) to be based on an arbitrary assumption, since it was designed to
eliminate from consideration controls on a number of source categories
that were not expected to yield many emission reductions. The EPA
believed that controls on categories with very low emission reduction
potential would not constitute RACM. The fact that the top 80 percent
of the categories considered for additional controls yielded minimal
(maximum 2.5 tpd) emissions reductions, validates EPA's decision not to
analyze separately the bottom 20 percent of the categories, which would
cumulatively have achieved fewer emission reductions. Therefore, EPA
concludes that control measures applied to the bottom 20 percent of the
categories are not RACM. In the case of NO_X controls for
stationary sources in BPA, Texas is controlling emissions beyond levels
that EPA has previously approved as RACT (defined by EPA as the lowest
achievable emission rate considering technical and economic feasibility
and therefore considered RACM for major sources) for utility and
industrial boilers and process heaters.
Comment 7(b): Second, EPA did not consider potential additional
controls on electric generating units and point source combustion
sources. EPA offers no explanation for this exclusion. If the Agency is
assuming that these sources are already controlled to RACT levels, that
assumption is not supported by the record.
Response 7(b): EPA does believe the record supports that RACT was
in place on electric generating units and point sources. The EPA
proposed conditional approval of BPA NO_X RACT on October 28,
1999 (64 FR 58011), and published final conditional approval on March
3, 2000 (65 FR 11468). A direct final notice converting the conditional
approval to a full approval was published September 1, 2000 (65 FR
53172). This process included two public comment periods in which no
adverse comments were received.
Undoubtedly there are additional controls that could be placed on
electric generating units and point source combustion sources. However,
EPA believes that: (1) the implementation of the RACT requirements in
the BPA nonattainment area; (2) Texas' regional measures providing for
additional 50% NO_X reductions at electrical generating
facilities in Central and Eastern Texas (which will affect the
nonattainment area in general), and; (3) the beyond-RACT emission
specifications for Electric Utility Boilers and industrial boilers and
certain process heaters in the BPA area; provide a level of control
that represents all reasonably available controls for these types of
sources in the BPA area in question.
The EPA believes that generally, the level of NO_X
emissions control required under Texas' local and regional measures
(similar to the NO_X SIP call requirements in other parts of
the U.S.), including controls for electric generating units (above),
industrial, commercial, and institutional boilers, water heaters, small
boilers and certain process heaters, is greater than the level of
control presumed to be RACT by EPA under the NO_X RACT
requirement. EPA acknowledges that additional controls with higher
costs are available and may be cost-effective for areas other than the
BPA area. Also, the control costs may not reflect other concerns for
the BPA area, regarding reasonableness of control. If control levels
greater than those provided by the RACT and the beyond-RACT stationary
control measures already or about to be implemented were to be adopted
for the BPA area, the EPA believes they would not advance the
attainment date for the BPA area, particularly since this area relies
heavily on NO_X controls from upwind (HG area) sources, and
further local reductions within this BPA area are not needed to address
local contribution. Therefore, EPA has determined that such additional
controls on electric generating units and point source combustion
sources do not constitute RACM.
Comment 7(c): EPA assumes that only a 44% (32-58% range) level of
control is achievable for the uncontrolled emissions for industrial
boilers and process heaters at 19 large stationary

[[Page 26932]]

sources (4 refineries reduce their NO_X by 58% and 15
chemical plants reduce NO_X by 32%). This completely
unsupported claim is hard to fathom.
Response 7(c): The EPA established guidance to States in complying
with the Clean Air Act's requirements for NO_X RACT in the
NO_X Supplement to the General Preamble (57 FR 55620,
November 25, 1992). That guidance addressed RACT for major stationary
sources of NO_X. Under section 182(b)(2) of the Act, moderate
and higher ozone nonattainment area SIPs (and also SIPs for all areas
in the Ozone Transport Region) were already required to contain
provisions for applying a reasonably available level of control for
NO_X for major stationary sources. As discussed in the
previous response to comment, EPA approved RACT levels for the BPA
area.
For NO_X emission control for other sources, when EPA
published the NO_X SIP call (63 FR 57402, October 27, 1998),
EPA evaluated other levels of NO_X control for categories of
stationary sources that were not included in the highly cost-effective
controls assumed for establishing the level of control reflected in the
Statewide NO_X emission budgets in that rule. The EPA
determined that for area sources, additional NO_X controls
that were technologically feasible and highly cost-effective could not
be identified. The EPA determined that for small point sources, their
collective emissions were relatively small and the administrative
burden, to the States and regulated entities, of controlling such
sources of NO_X was likely to be considerable. Nonetheless,
for the purpose of the RACM analysis, EPA did assume a level of control
for sources of NO_X with potential for control. In light of
the lower level of confidence in information concerning NO_X
controls on these sources, and the conclusion concerning cost
effectiveness, however, EPA believed it had to take a more conservative
approach.
The additional local BPA area control measures the State
implemented results in a 44 percent level of control for the BPA area.
The EPA believes this level is reasonable in light of the analysis
performed for the General Preamble, the SIP call, and the BPA RACT
approvals. In addition, this level is consistent with EPA guidance
issued on March 16, 1994 which states that NO_X RACT is
generally expected to achieve a 30-50% reduction. EPA further believes
the 44 percent level of control is sufficient to bring the BPA area
into attainment by the attainment extension date of November 15, 2007.
This 44 percent reduction is the amount achieved by aggressive
combustion modifications, and was termed ``Tier I'' level of controls
by the State. The TNRCC also considered a ``Tier II'' level of controls
that would have required extensive add-on controls such as Selective
Catalytic Reduction (SCR). The modeling showed Tier II controls were
not necessary for BPA to reach attainment for 1-hr ozone NAAQS. In
addition, the HG area will be implementing major reductions in
emissions to support attainment. Those ``regional'' reductions are
needed for the BPA area to attain the NAAQS for ozone. Therefore,
further controls in the BPA area will not advance the attainment date
and are not necessary.
Comment 8: Transportation Control Measures as RACM: EPA gives
virtually no consideration to the emission reduction benefits of
transportation programs, projects and services contained in adopted
regional transportation plans (RTPs), or that are clearly available for
adoption as part of RTPs adopted for a nonattainment area. In addition,
it is arbitrary and capricious for EPA not to require as RACM economic
incentive measures that are generally available to reduce motor vehicle
emissions in every nonattainment area.
Response 8: EPA's RACM analysis performed for the December 27,
2000, notice (Included in the TSD for the proposed rule) does consider
transportation programs, projects and services that are generally
adopted, or available for inclusion in a nonattainment area's regional
transportation plan (RTP) and Transportation Improvement Program (TIP).
The RACM analysis includes seven broad categories covering twenty-seven
subcategories of Transportation Control Measures (TCMs) that represent
a range of programs, projects and services that can be included in RTPs
and TIPs. The inclusion of a TCM in an RTP or TIP does not necessarily
mean that it meets EPA's criteria for RACM and must be included in the
SIP. EPA has concluded that implementation of these TCMs would not
advance the attainment date for the BPA area, and therefore are not
considered RACM for purposes of the attainment SIPs for that area.
Some of these TCMs, such as parking cashout, transit subsidies, and
parking pricing, are explicitly economic incentive programs.
Furthermore, these categories of TCMs, as well as most of the others,
could be infinitely differentiated according to criteria, such as the
method of implementation, level of promotional effort or market
penetration, stringency of enforcement, etc. The application of
economic incentives to increase the effectiveness of a TCM is one such
criterion. These implementation variables, representing levels of
implementation effort, are implicit in the range of effectiveness for
each category of TCM. EPA does not believe it is necessary, or even
possible, to evaluate every explicit variation of TCMs in order to
adequately determine if it is reasonably available. EPA believes that
using the midpoint level of effectiveness represents a level of
implementation effort that is not so high as to be economically
infeasible, nor so low as to be ineffective.
Also, there are many important reasons why a state, regional, or
local planning agency might implement TCMs in an integrated traffic
management plan beyond whatever air quality benefits the TCMs might
generate, including preserving open space, water shed protection,
avoiding sprawl, mitigating congestion, and ``smart growth'' planning
generally. So the fact that TCMs are being implemented in certain ozone
nonattainment areas does not necessarily lead one to the conclusion
that those TCMs represent mandatory RACM measures when they are
analyzed primarily for the purpose of determining whether they would
advance the ozone attainment date.
Due to the smaller number of mobile sources and vehicle miles
traveled (VMT) in the BPA area, mobile source NO_X emissions
amount to less that 20% of the total NO_X emissions for the
BPA area. As such, small changes resulting from implementation of
additional TCMs have a negligible effect on ozone reduction and will
not contribute to acceleration of the attainment date for the BPA
nonattainment area.
Comment 9: BPA area analysis: Having refused to consider a wide
range of potential measures as RACM for this area, and understating the
potential benefits of others, EPA asserts that available measures would
not advance the attainment date in BPA because: (a) The area relies
heavily on control of transported emissions and ozone; and (b) The
modeling indicates that NO_X reductions are generally more
beneficial in reducing ozone levels, suggesting that the area may be
NO_X limited. The first point is truly irrelevant to the RACM
inquiry, for all the reasons set forth above. Even if the issue is
whether additional measures could advance the attainment date, that
inquiry is not informed by whether the area might attain by November
15, 2007, but by whether it could attain sooner than November 15, 2007.
As to the second point, the modeling does not show that NO_X
reductions are inherently more

[[Page 26933]]

beneficial. They merely show that under some circumstances--generally
involving very substantial NO_X reductions (e.g., 60% cuts or
larger)--NO_X reductions might provide greater benefits per
ton. The same model shows that NO_X reductions can sometimes
actually lead to increased ozone levels in some cells. Even if the
ozone problem in the BPA area is NO_X limited, that hardly
justifies eschewing additional measures as RACM--at most it would
suggest focusing more heavily on additional measures for NO_X
sources as RACM.
Response 9: The sensitivity analyses that were performed by the
State of Texas with the photochemical grid model for the BPA area
showed that, even with small NO_X emission reductions, the
ozone benefits achieved are substantially greater than the minor ozone
benefits achieved from similar VOC emission reductions. Also, the
results of the attainment demonstration modeling conducted by the State
specifically indicate that NO_X control is particularly
effective in reducing ozone levels in the BPA area. Therefore, EPA
stands by its technical position that the levels of VOC reductions in
the BPA area that could be achieved by additional stationary and mobile
source control measures that are potentially RACM would not improve
ozone levels to the point that would result in advancing the attainment
date. Furthermore, EPA's analysis demonstrated that the source
categories that were available for mobile NO_X controls were
considered too few (even with the area's ability to benefit from
NO_X controls) to advance the attainment date.
Also, EPA's analysis of levels of NO_X reductions in the
BPA area that could be achieved by additional stationary source
controls that are potentially RACM would have to come from a large
number of small sources where EPA does not have much guidance for
control, and therefore would be costly to develop. Further,
implementation of these potential measures for both VOC and
NO_X would not advance the attainment date due to the
substantial reductions needed in the HG area. Therefore, EPA concluded
that additional controls on the source categories evaluated for both
VOC and NO_X should not be considered RACM.
The HG nonattainment area is classified severe-17 with an
attainment date of November 15, 2007, whereas the BPA nonattainment
area is classified as a moderate area. EPA is approving an attainment
date extension for the BPA area precisely because the modeling shows
that additional controls coming from outside the BPA area itself are
needed for the BPA area to come into attainment. Other reasons why EPA
does not consider additional measures to be RACM for the BPA area are
discussed elsewhere in these responses to comments. Also, refer to
previous responses to comments concerning the BPA attainment date and
advancing an attainment date due to transport.
Comment 10: EPA's 1998 Transport Policy: Commenters believe that
the so-called ``July 1998 transport policy'' is legally and technically
flawed and must not be relied upon to allow further delay in responding
to the Act's requirements. Assuming arguendo that the ``transport
policy'' is valid, commenters believe that the evidence, information
and data available to EPA surrounding the BPA area indicate that
transport plays no part in at least a portion of the ozone exceedances
observed in the BPA area and thus the transport policy cannot apply,
even if transport is a factor in other episodes. Even EPA and the state
concede that applying an analysis of back trajectories of air parcels
coming into the BPA area from the HG area fails to demonstrate
transport effects from HG as the sole cause of higher ozone
concentrations in the BPA area. Commenters request the development of
an environmental justice analysis and the incorporation of specific
measures and accommodations to address the needs of particular
communities that are disproportionally affected by exposure to
unhealthful air quality.
Response 10: EPA has responded extensively to issues pertaining to
the legality and technical applicability of the July 1998 Transport
Policy in its March 1999 responses, above.
EPA disagrees with the assertion that even if the July 1998
Transport Policy is valid it does not apply, since transport does not
appear to be a significant factor in some of the area's ozone
exceedances. The evidence shows that absent adequate controls on
transported pollution from the HG area, the BPA area will not attain
the standard. The policy requires the BPA area to put in place local
control measures to address local contributions to the area's
nonattainment problem. However, these measures alone will not bring the
BPA area into attainment due to the transport of ozone and ozone
precursor compounds from the HG area. Thus, the EPA has determined that
the July 1998 Transport Policy is appropriately applied in this case.
In approving the State's request for an attainment date extension
for BPA, EPA did not base the decision solely on the State's back
trajectory analyses. The State demonstrated the impact of ozone and
ozone precursor transport from the upwind HG area counties upon the BPA
area through photochemical grid modeling (i.e., CAMx).
EPA recalculated the estimate of the future design values based
solely on modeled days when winds are not coming from HG. The results
indicate that the local measures in BPA are adequate to show attainment
on days when transport is not an issue. This confirms that BPA has done
all that they can to address the local portion of their nonattainment
problem. EPA's review of the number of days when there is an exceedance
in BPA for the 1990-94 data shows 41 exceedances in the BPA area, of
which 16 days are when winds are from the HG area. This is more than 3
exceedances per year (three being the maximum number of exceedances
allowed to still be in attainment) for BPA which are influenced by
transport from HG. Given the two areas are less than 24 hours transport
from each other, and the life time of ozone and its precursors, it is
reasonable to believe ozone observations and emissions emitted in HG
will arrive in BPA within 24 hours. This argument alone closely links
the two areas. In addition, five of the 41 exceedances occurred at the
same BPA Monitor (BMTC). During four of these execeedances, ozone
quality in the HG area on the day before, or the day of, these
exceedances ranged from 107 to 140 ppb. These high levels of HG ozone,
on days when the winds were from the direction of HG, further link HG
area ozone and emissions with BPA exceedances. Modeling which
eliminated the HG emissions and resulted in 10-30 ppb change in ozone
levels in BPA, as documented in the TSD, shows HG is having a major
impact on BPA's ability to attain the 1-hour ozone standard. BPA has
adopted and will be implementing local regulations controlling
pollution from local sources, but which will not be able to bring about
attainment due to pollution caused by transport. Transport from the HG
area will prevent the BPA area from attaining.
This is consistent with the criteria in EPA's July 17, 1998 policy
memo entitled ``Extension of Attainment Dates for Downwind Transport
Areas'', and demonstrates through modeling that transport from an
upwind area with a later attainment date affects the downwind area's
ability to attain the standard by its attainment date. The State has
demonstrated through modeling that Beaumont-Port Arthur was affected by
transport from HG emissions to a degree that affects BPA's ability to
attain. In addition to photochemical modeling, the State

[[Page 26934]]

conducted an analysis of back trajectories to further illustrate the
impact of the HG area emissions on the BPA ozone nonattainment area.
The subject of an environmental justice analysis is addressed later
in response to a specific comment (see comment 18).
Comment 11: EPA has a duty to reclassify BPA immediately: The
administrative record in this matter includes extensive correspondence
between EPA and the state of Texas over BPA. This correspondence
reflects the air quality status of BPA during the years 1997 and 1998,
and includes express direction from EPA to Texas to submit a
demonstration of overwhelming transport no later than May 15, 1998.
Several years later, no new or substantive evidence from Texas
describing the nature or extent of any transport is presented. EPA
lacks the authority to ignore non-compliance and interminable foot-
dragging. EPA is bound by the express requirements and structure of the
Act and must reclassify BPA immediately.
Response 11: EPA has responded to issues pertaining to the
interpretation of the reclassification requirements of the Clean Air
Act and application of those requirements in light of developments
since the enactment of the 1990 Clean Air Act in its March 1999
responses, above. See Section VIII(A), specifically the response to
comment 1. The EPA is not relying on the overwhelming transport policy;
that policy guidance is superseded by the 1998 transport policy. See
Section VIII(A) comments 15 and 16. The 1998 transport policy reflects
the latest science and modeling information, as well as EPA's
application of its interpretation of the CAA. The information added by
the State in the 1999 and 2000 SIP submissions adds to the record, and
more clearly depicts the influence of transport on the ability of BPA
to attain the NAAQS for 1-hr ozone levels. Refer to preceding responses
and comment number 17 in Section VIII(A). EPA is not ignoring the
issue, but has gained a new and improved understanding leading to a
more equitable resolution that better executes the will of Congress as
embodied in the CAA.
Comment 12: Further delays are inappropriate: EPA proposes to grant
Texas time for months and years of further inaction by the proposed
rule. Reclassification should occur immediately upon the conclusion of
this rulemaking, i.e., by early February 2001. An emergency, partial
SIP submittal should be required immediately which commits to
implementing all available control strategies for stop-gap emissions
reductions, including the incorporation of whatever improved
NO_X rules, contingency measures, RACT fix-up and other
available control strategies for adoption into a federally enforceable
interim SIP. A complete SIP (with attainment demonstration, revised
inventories, further enhanced control strategies, etc.) should be
developed and submitted no later than 6 months after the final rule is
published.
Response 12: EPA responds extensively to the issues of attainment
date extension, reclassification requirements, implementation of RACM
and other control measures, and the appropriateness of the SIP
components submitted by the State of Texas, the subjects of this
comment, throughout these responses to comments.
Comment 13: Reclassification to severe is justified: BPA's design
value is not significantly decreasing, according to monitoring
stations. It is experiencing degrading air quality rather than steady
improvement. Reclassification to serious is inadequate to reverse this
trend, and as EPA notes, BPA cannot realistically be expected to meet
the 11/15/99 SIP submittal deadline, much less demonstrate attainment,
even though these are the requirements of the Act. Current data
demonstrates that the serious classification is not appropriate: BPA
should be reclassified to severe.
Response 13: The BPA design value is decreasing. The 1-hr ozone
design value for the three-year period of 1995 through 1997 is 157 ppm,
while the design value for the three-year period of 1998 through 2000
is 145 ppm. In addition, overall the design value has been steadily
decreasing since 1975. This is demonstrated in the State's Design Value
Trend analysis, and is discussed previously in Section VIII(C) response
to comment 2.
EPA disagrees with the assessment that BPA should be reclassified
to severe. In our April 16, 1999, proposed rule (64 FR 18864) we
proposed to find, pursuant to section 181(b)(2) of the Clean Air Act,
that the BPA area has failed to attain the ozone 1-hour NAAQS by the
date prescribed under the Act for moderate ozone nonattainment areas,
or November 15, 1996. Alternatively, in that proposed rule, we proposed
to extend the attainment date, providing that Texas meets the criteria
of our July 16, 1998, transport policy, ``Guidance on Extension of
Attainment Dates for Downwind Transport Areas.'' We stated that if
Texas submits a SIP that meets the July 1998 transport policy, we would
issue a supplemental proposal in a Federal Register notice to extend
the BPA area's attainment date as appropriate. If Texas did not submit
a SIP that met the July 1998 transport policy, or failed to submit a
timely SIP, we would have finalized the proposed finding of failure to
attain, and the BPA area would be reclassified as a serious ozone
nonattainment area.
The State met the requisite criteria and has demonstrated that the
BPA area is influenced by transport from the HG area to the extent that
BPA can not attain until the HG area attains. Therefore, we are
approving the BPA ozone attainment demonstration and, following the
criteria of the July 1998 transport policy guidance, are extending the
date required for BPA attainment compliance to the appropriate date
equal to the attainment date of the upwind source influencing the BPA
(downwind) nonattainment. Our previous responses fully address the
validity and application of the July 1998 transport policy guidance,
and our interpretation of the Clean Air Act and application of those
requirements in light of developments since the enactment of the 1990
Clean Air Act. In light of this, it is not appropriate to reclassify
the BPA nonattainment area as either serious or severe. Refer to
Section VIII(A) comment 13, and Section VIII(C) comments 1 and 2. In
any event, if the area were to be reclassified, the statute would call
for reclassification to ``serious'', not severe. Refer to Section
VIII(A), response to comment 21.
Comment 14: Reliance on the July 1998 transport policy is
inappropriate: EPA's July 1998 transport policy is neither legally
valid nor applicable to BPA. It should be ignored and instead, the Act
applied as written.
Response 14: EPA has replied extensively on the validity of the
July 1998 transport policy and its applicability to the BPA ozone
nonattainment area in previous responses to comments, above, especially
Section VIII(A), response to comment 2. Responses in Section VIII(C)
(e.g., comment 9, and comment 16 to follow) discuss specifics
particular to the BPA area.
Comment 15: If Houston's air pollution is actually being
transported to BPA, EPA must make a SIP call to improve the HG SIP: The
Act is clear that states are required to develop plans which include
sufficient control strategies to mitigate and compensate for the
effects of transported air pollutants. Sec. 110(a)(2)(D), 110(k)(5). As
noted above, the 7/98 transport policy is backwards: Congress clearly
expected that upwind areas would be required to control emissions to
the degree that these emissions would not affect

[[Page 26935]]

downwind areas. The state must adopt whatever controls are necessary
for HG to reduce its pollution in a timely fashion and help Beaumont
into attainment.
Response 15: EPA has replied extensively on the validity of the
July 1998 transport policy and its applicability to the BPA ozone
nonattainment area in previous responses to comments, above, especially
the responses to the March 1999 Notice--Section VIII(A). In addition,
as discussed previously, it is difficult to ascertain which emission
reductions an upwind area might require earlier in order to bring a
downwind area into attainment prior to attainment by the upwind area.
Moreover, requiring control strategies in the HG area that accelerates
that area's attainment date conflicts with Congressional intent to
allow the HG area a later attainment date, and based on consideration
of what is ``practicable.''
In response to the commenter's concern that the EPA must make a SIP
call to improve the HG SIP, the EPA does not agree. We are currently
operating under the Natural Resources Defense Council consent decree
(Natural Resources Defense Council v. Browner, Civ No. 99-2976,
November 30, 1999) for HG SIP actions. This consent decree essentially
is functioning as a SIP call. The State of Texas submitted an
attainment demonstration SIP for the HG area, with rules or other
enforceable control measures, by December 31, 2000. This attainment
demonstration SIP revision is currently under EPA review. Thus, until
EPA has ruled on the sufficiency of that SIP submission, a SIP call
would be premature. Per the decree, if EPA has not fully approved an
attainment demonstration SIP for HG, EPA must by October 15, 2001,
propose a Federal Implementation Plan (FIP). Should a FIP be proposed,
the EPA must promulgate the FIP by June 14, 2002 to be in compliance
with the consent decree. Previous responses found above, including the
responses to the March 1999 Notice--Section VIII(A), discuss why the
EPA does not believe the Act requires the HG area to shorten its
attainment schedule by adopting and implementing rules on a faster
schedule in order to bring the BPA area into attainment sooner. Also,
reference the TSD to the December 27, 2000, proposed rule for details
of the modeling evidence for transport and BPA nonattainment.
Comment 16: The ``Extension'' of the attainment date is not
warranted by fact or permissible under law: EPA's legal basis for
simply adjusting the attainment date under these circumstances is non-
existent. Even if there were statutory authority to grant extensions,
there is nothing in the notice to suggest that the area has to reduce
transport to attain.
Response 16: EPA has replied extensively on the validity of the
July 1998 transport policy, the granting of an extension to the
attainment date for a downwind nonattainment area, and its
applicability to the BPA ozone nonattainment area in previous responses
to comments, above, including the responses to the March 1999 Notice--
Section VIII(A).
Also, the State has submitted an approvable modeling demonstration
with supporting documentation that the BPA area is affected by
transport of ozone and ozone precursor compounds from an upwind source,
namely the HG area. The submitted documentation successfully
demonstrates that this transport from the HG area affects the BPA
area's ability to attain earlier than the date that the HG area
attains. There is strong evidence to support the position that the BPA
nonattainment area is impacted by transport from the HG area. EPA's
review of the number of days when there is an exceedance in BPA for the
1990-94 data shows 41 exceedances in the BPA area, of which 16 days are
when winds are from the HG area. This is more than 3 exceedances per
year (three being the maximum number of exceedances allowed to still be
in attainment) for BPA which are influenced by transport from HG. Given
the two areas are less than 24 hours transport from each other, and the
life time of ozone and its precursors, it is reasonable to believe
ozone observations and emissions emitted in HG will arrive in BPA
within 24 hours. This argument alone closely links the two areas.
Modeling which eliminated the HG emissions and resulted in 10-30 ppb
change in ozone levels in BPA, as documented in the TSD, shows HG is
having a major impact on BPA's ability to attain the 1-hour ozone
standard. Local attainment modeling for the BPA and HG nonattainment
areas shows that the BPA nonattainment area will need controls not only
local to the BPA nonattainment area but from upwind sources (the HG
area) to demonstrate attainment of the ozone NAAQS. Local modeling for
2007 relies substantively on the HG area reductions (upwind and within
the modeling domain) as well as controls being implemented in the BPA
nonattainment area. EPA recalculated the estimate of the future design
values based solely on modeled days when winds are not coming from HG.
The results indicate that the local measures to be implemented in BPA
are adequate to show attainment on days when transport is not an issue.
This confirms that BPA has done all that they can to address the local
portion of their nonattainment problem. It has been clearly
demonstrated that, until the HG nonattainment area implements local
controls and comes into attainment, high ozone and precursor emissions
from the HG nonattainment area will continue to contribute to
exceedances and thwart attainment in the BPA nonattainment area.
Reference the TSD to the December 27, 2000, proposed rule for details
of the modeling evidence for transport and BPA nonattainment.
Comment 17: Weight-of-evidence Approach is so Poorly Described and
Developed as to constitute a non-technical Analysis for Approving an
Extension to 2007: The state's weight-of-evidence determinations are
technically flawed and poorly presented in the proposed rulemaking (65
FR 81797 by relying on too many uncertainties, estimates and non-
scientific methods, which make this approach entirely unacceptable and
illegal. EPA needs to do a comprehensive scientific analysis of the
information and not a non-scientific one in making these critical
public health evaluations and decisions.
Response 17: Under section 182(b), (c)(2), and (d) of the CAA,
moderate ozone nonattainment areas were required to submit by November
15, 1993, and serious and severe ozone nonattainment areas were
required to submit by November 15, 1994, demonstrations of how they
would attain the 1-hour standard. Section 182(c)(2)(A) provides that
``[t]his attainment demonstration must be based on photochemical grid
modeling or any other analytical method determined by the
Administrator, in the Administrator's discretion, to be at least as
effective.'' Moderate areas were therefore not required to submit an
attainment demonstration SIP based upon photochemical modeling. As
described in more detail below, the EPA guidance provides options for
states to supplement their photochemical modeling results, with
additional evidence designed to account for uncertainties in the
photochemical modeling, to demonstrate attainment. This approach is
consistent with the requirement of section 182(c)(2)(A) that the
attainment demonstration ``be based on photochemical grid modeling,''
because the modeling results constitute the principal component of
EPA's analysis, with supplemental information designed to account for
uncertainties in

[[Page 26936]]

the model. This interpretation and application of the photochemical
modeling requirement of section 182(c)(2)(A) finds further
justification in the broad deference Congress granted EPA to develop
appropriate methods for determining attainment, as indicated in the
last phrase of section 182(c)(2)(A).
The flexibility granted to EPA under section 182(c)(2)(A) is
reflected in the regulations EPA promulgated for modeled attainment
demonstrations. These regulations provide, ``The adequacy of a control
strategy shall be demonstrated by means of applicable air quality
models, data bases, and other requirements specified in [40 CFR part 51
Appendix W]
(Guideline on Air Quality Models).'' \4\ 40 CFR
51.112(a)(1). However, the regulations further provide, ``Where an air
quality model specified in appendix W * * * is inappropriate, the model
may be modified or another model substituted [with approval by EPA, and
after]
notice and opportunity for public comment * * *.'' Appendix W,
in turn, provides that, ``The Urban Airshed Model (UAM) is recommended
for photochemical or reactive pollutant modeling applications involving
entire urban areas,'' but further refers to EPA's modeling guidance for
data requirements and procedures for operating the model. 40 CFR 51
App. W section 6.2.1.a. The modeling guidance discusses the data
requirements and operating procedures, as well as interpretation of
model results as they relate to the attainment demonstration. This
provision references guidance published in 1991, but EPA envisioned the
guidance would change as we gained experience with model applications,
which is why the guidance is referenced, but does not appear, in
Appendix W. With updates in 1996 and 1999, the evolution of EPA's
guidance has led us to use both the photochemical grid model, and
additional analytical methods approved by EPA.
---------------------------------------------------------------------------

\4\ The August 12, 1996 version of ``Appendix W to Part 51--
Guideline on Air Quality Models'' was the rule in effect for these
attainment demonstrations. EPA is proposing updates to this rule
which will not be in effect until the new rule is promulgated.
---------------------------------------------------------------------------

The modeled attainment test compares model predicted 1-hour daily
maximum ozone concentrations in all grid cells for the attainment year
to the level of the NAAQS. The results may be interpreted through
either of two modeled attainment or exceedance tests: A deterministic
test or a statistical test. Under the deterministic test, a predicted
concentration above 0.124 parts per million (ppm) ozone indicates that
the area is expected to exceed the standard in the attainment year and
a prediction at or below 0.124 ppm indicates that the area is expected
to not exceed the standard. Under the statistical test, attainment is
demonstrated when all predicted (i.e., modeled) 1-hour ozone
concentrations inside the modeling domain are at, or below, an
acceptable upper limit above the NAAQS permitted under certain
conditions (depending on the severity of the episode modeled).\5\
---------------------------------------------------------------------------

\5\ Guidance on the Use of Modeled Results to Demonstrate
Attainment of the Ozone NAAQS. EPA-454/B-95-007, June 1996.
---------------------------------------------------------------------------

In 1996, EPA issued guidance \6\ to update the 1991 guidance
referenced in 40 CFR 50 App. W, to make the modeled attainment test
more closely reflect the form of the NAAQS (i.e., the statistical test
described above), to consider the area's ozone design value and the
meteorological conditions accompanying observed exceedances, and to
allow consideration of other evidence to address uncertainties in the
modeling databases and application. When the modeling does not
conclusively demonstrate attainment, EPA has concluded that additional
analyses may be presented to help determine whether the area will
attain the standard. As with other predictive tools, there are inherent
uncertainties associated with air quality modeling and its results. The
inherent imprecision of the model means that it may be inappropriate to
view the specific numerical result of the model as the only determinant
of whether the SIP controls are likely to lead to attainment. The EPA's
guidance recognizes these limitations, and provides a means for
considering other evidence to help assess whether attainment of the
NAAQS is likely to be achieved.
---------------------------------------------------------------------------

\6\ Ibid.
---------------------------------------------------------------------------

The process by which this is done is called a weight of evidence
(WOE) determination. Under a WOE determination, the state can rely on,
and EPA will consider in addition to the results of the modeled
attainment test, other factors such as other modeled output (e.g.,
changes in the predicted frequency and pervasiveness of 1-hour ozone
NAAQS exceedances, and predicted change in the ozone design value);
actual observed air quality trends (i.e. analyses of monitored air
quality data); estimated emissions trends; and the responsiveness of
the model predictions to further controls.
In 1999, EPA issued additional guidance \7\ that makes further use
of model results for base case and future emission estimates to predict
a future design value. This guidance describes the use of an additional
component of the WOE determination, which requires, under certain
circumstances, additional emission reductions that are or will be
approved into the SIP, but that were not included in the modeling
analysis, that will further reduce the modeled design value. An area is
considered to monitor attainment if each monitor site has air quality
observed ozone design values (4th highest daily maximum ozone using the
three most recent consecutive years of data) at or below the level of
the standard. Therefore, it is appropriate for EPA, when making a
determination that a control strategy will provide for attainment, to
determine whether or not the model predicted future design value is
expected to be at or below the level of the standard. Since the form of
the 1-hour NAAQS allows exceedances, it did not seem appropriate for
EPA to require the test for attainment to be ``no exceedances'' in the
future model predictions. The method outlined in EPA's 1999 guidance
uses the highest measured design value from all sites in the
nonattainment area for each of three years.\8\ The three year ``design
value'' represents the air quality observed during the time period used
to predict ozone for the base emissions. This is appropriate because
the model is predicting the change in ozone from the base period to the
future attainment date. The three yearly design values (highest across
the area) are averaged to account for annual fluctuations in
meteorology. The result is an estimate of an area's base year design
value. The base year design value is multiplied by a ratio of the peak
model predicted ozone concentrations in the attainment year (i.e.,
average of daily maximum concentrations from all days modeled) to the
peak model predicted ozone concentrations in the base year (i.e.,
average of daily maximum concentrations from all days modeled). The
result is an attainment year design value based on the relative change
in peak model predicted ozone concentrations from the base year to the
attainment year. Modeling results also show that emission control
strategies

[[Page 26937]]

designed to reduce areas of peak ozone concentrations generally result
in similar ozone reductions in all core areas of the modeling domain,
thereby providing some assurance of attainment at all monitors.
---------------------------------------------------------------------------

\7\ ``Guidance for Improving Weight of Evidence Through
Identification of Additional Emission Reductions, Not Modeled.''
U.S. Environmental Protection Agency, Office of Air Quality Planning
and Standards, Emissions, Monitoring, and Analysis Division, Air
Quality Modeling Group, Research Triangle Park, NC 27711. November
1999. Web site: http://www.epa.gov/ttn/scram.
\8\ EPA relies on this averaging only for purposes of
determining one component, i.e.--the amount of additional emission
reductions not modeled--of the WOE determination. The WOE
determination, in turn, is intended to be a qualitative assessment
of whether additional factors (including the additional emissions
reductions not modeled), taken as a whole, indicate that the area is
more likely than not to attain.
---------------------------------------------------------------------------

In the event that the attainment year design value is above the
standard, the 1999 guidance identifies a method for identifying
additional emission reductions, not modeled, which at a minimum provide
an estimated attainment year design value at the level of the standard.
This step uses a locally derived factor which assumes a relationship
between ozone and the precursors. The Act and the regulations do not
mandate nor does EPA guidance suggest that States must model all
control measures being implemented. Moreover, a component of this
technique--the estimation of future design value--should be considered
a model-predicted estimate. Therefore, results from this technique are
an extension of ``photochemical grid'' modeling and are consistent with
Section 182(c)(2)(A).
The State provided an array of weight-of-evidence analysis to
support the probability of attainment of the NAAQS in November, 2007.
These analyses were in accordance with the guidelines and procedures
discussed above. Analyses included future design value calculations,
design value trends, spatial and temporal modeling metrics, and several
other measures not included in the attainment demonstration CAMX
modeling. Specifically, the future design value calculations indicated
a calculated future design value of 115.4 parts per billion (ppb),
below the NAAQS value of 124 ppb. The design values trend analysis
demonstrates a general decrease in design values from 1975 through
1999. The spatial and temporal modeling shows an overall 87 percent
improvement in ozone exceedance days for the 2007 post-control case as
compared to the 1993 base case. In addition, other items in the WOE
analysis provided for additional emissions reductions on top of those
included in the CAMX modeling.
In addition to the summary discussion provided in the proposed
rulemaking notice (65 FR 81797), the weight-of-evidence approach is
discussed in more detail in the TSD to the December 27, 2000, notice
and the supporting documentation submitted by the State. Also, it must
be understood that the WOE analysis is used for additional analyses
based on a composite of the information, not on a single element. The
State analyzed, and the EPA considered, these analyses in the aggregate
in assessing whether the State has provided sufficient evidence that
corroborates further the attainment demonstration. It is the EPA's
technical opinion the State's analyses of air quality and emission
trends do provide additional support for the State's attainment
demonstration. Progress in air quality improvement through recent
periods is demonstrated and future progress in air quality improvement
is shown. In addition, these analyses lend support to a regional
NO_X reduction as a reasonable approach to achieving
attainment of the ozone standard. Based on the weight-of-evidence and
the modeling, the control strategy should provide for attainment by
November 15, 2007.
Comment 18: In addition to the fundamental attainment issues,
commenters believe that the emissions reductions strategy contained in
the applicable SIP for the BPA area must consider and accommodate
disproportionate effects on minority and disadvantaged communities,
i.e., environmental justice issues.
Response 18: Commenters' assertion that minority and low-income
populations in Jefferson, Hardin and Orange counties are exposed to
higher levels of ozone that other residents of the BPA area is not
supported by the available data. In addition, the air quality for the
entire BPA area will reflect levels below the ozone NAAQS once
attainment is realized. Moreover, an evaluation of the available air
quality data for the BPA for the years 1998-2000 indicates that fewer
exceedances occurred in areas with minority and low-income populations
than did for areas with relatively high non-minority and non-low-income
populations. EPA therefore finds that this rulemaking is consistent
with Executive Order 12898 and does not impose any disproportionately
high and adverse human health or environmental effects on minority and
low-income populations.
Commenters also contend that the provisions of 40 CFR 7.35(a)(3)
proscribe EPA's administration of the air quality program in a
discriminatory manner. EPA regulations at 40 CFR Part 7 implement Title
VI of the Civil Rights Act of 1964, as amended, and prohibit recipients
of EPA assistance from discriminating on the basis of race, color or
national origin, among other things. Title VI and the Part 7
regulations apply to the programs and activities of recipients of EPA
assistance, but not to actions taken by federal agencies. Therefore,
the requirements of 40 CFR Part 7 do not apply to the action EPA is
taking today. \9\ More importantly, as noted above, EPA concludes that
this action does not impose any disproportionately high and adverse
human health or environmental effects on minority and low-income
populations.
---------------------------------------------------------------------------

\9\ EPA notes that commenters reference a Title VI
administrative complaint regarding the Exxon-Mobil Beaumont
refinery-chemical plant complex. The complaint, which is dated April
13, 2000, involves a permitting action by the Texas Natural
Resources Conservation Commission. EPA's Office of Civil Rights is
responsible for the Agency's administration of Title VI and is still
processing this complaint. As a result, the complaint is not germane
to the SIP action taken today by EPA pursuant Clean Air Act section
110.
---------------------------------------------------------------------------

Finally, commenters make a number of factual allegations about the
demographics and health of poor and minority populations in the BPA
nonattainment area and across the country. However, commenters did not
provide EPA with any concrete references or resources to support these
allegations. Therefore, EPA is not responding to these unsupported
factual allegations.
Comment 19: BPA needs Reasonable Further Progress: Reasonable
further progress is not being provided for in the BPA area due to the
state's failure to require the CAA minimum 3%-per-year rate-of-progress
reductions, even though the statute clearly requires these basic
reductions. This failure violates the rate-of-progress requirements in
the statute. EPA needs to enforce this requirement of the Act.
Response 19: Since the BPA ozone nonattainment area is classified
as a moderate nonattainment area, the State was required to submit as a
revision to the SIP a 15% Rate-of-Progress (ROP) plan for the BPA area.
CAA Section 182(b)(1). This 15% plan meets the reasonable further
progress requirements for a moderate ozone nonattainment area. The 15%
plan was submitted and subsequently approved by the EPA. 63 FR 06659,
February 10, 1998. The reasonable further progress requirement cited by
the commenter (3%-per-year ROP reductions) does not apply to a moderate
ozone nonattainment area. The 3%-per-year ROP measure is an additional
reasonable further progress requirement for serious and above ozone
nonattainment areas, which becomes effective for those areas after the
15% requirement is submitted. CAA Section 182(c)(2)(B). Since, with
this rulemaking the EPA is approving the Attainment Demonstration SIP
revision, extending the attainment date, and is not reclassifying the
BPA ozone nonattainment from its present classification of moderate to
serious or

[[Page 26938]]

above, the additional 3%-per-year ROP component of the reasonable
further progress requirements of the CAA does not apply in the case of
the BPA area.
On the other hand, the HG December 2000 SIP revision submission
includes the required Post-1999 ROP Plans for the HG area through 2007.
Because of the impact of the HG area upon the BPA area's air quality,
through transport of ozone and ozone pre-curser compounds, the fact
that the HG area's plan includes the 3% ROP requirements will ensure
that the air quality in BPA improves at a steady pace.
Comment 20: Contingency Measures needed if State fails to show
Progress: The lack of contingency measures is unacceptable and illegal.
The extension for the BPA area requires that the area do nothing if the
state fails to show progress, therefore EPA needs to require the state
to adopt a set of contingency measures.
Response 20: First, the EPA believes the contingency measure
requirements of Section 172(c)(9) are an independent requirement from
the attainment demonstration requirements under Section 172(c)(1) and
the rate-of-progress (ROP) requirements under Sections 172(c)(2) and
182(b)(1)(A). The contingency measure requirements are to address the
event that an area fails to meet a ROP milestone or fails to attain the
ozone NAAQS by the attainment date established in the SIP. The
contingency measure requirements have no bearing on whether a state has
submitted a SIP that projects attainment of the ozone NAAQS or the
required ROP reductions toward attainment. The attainment or ROP SIP
provides a demonstration that attainment or ROP requirements ought to
be fulfilled, but the contingency measure SIP requirements concern what
is to happen only if attainment or ROP is not actually achieved.
Therefore, the EPA acknowledges that contingency measures are an
independently required SIP revision, but does not believe that
submission of contingency measures is generally necessary before EPA
may approve an attainment or ROP SIP, or that contingencies submitted
previously, and still in effect, need be restated in the attainment
demonstration SIP. However, where EPA is granting an attainment date
extension, as in BPA, EPA's policy requires that areas meet all of the
requirements applicable to the areas' classification. Further, as
discussed below, the BPA area has met its ROP contingency measures
requirements.
The State of Texas has previously submitted contingency measures
applicable to the BPA nonattainment area. These measures were submitted
with the 15% ROP SIP revision and approved by EPA. 63 FR 6659, February
10, 1998. The State meets the requirements of the CAA for a moderate
area's ROP contingency measure submittals. These contingency measures
include the triggering of the lower major source threshold for the
application of RACT controls for certain source categories. These
contingency measures were submitted previously, approved by EPA, and
remain in effect. Therefore, the BPA area meets the ROP requirements
applicable to its classification.
Comment 21: HG area may not attain by 2007 due to series of
industry-business lawsuits filed January, 2001 opposing the HG SIP:
Ability of the BPA area to attain by November 15, 2007 is now
threatened by lawsuits in HG to oppose the major stationary source
NO_X reductions required for the HG area's 2007 attainment.
Delays will impact attainment for the BPA area since the state is
relying heavily on reductions in the HG area for improving air quality.
Response 21: The commenter is correct in stating there are
currently pending lawsuits challenging several rules included in the HG
area SIP. They also correctly point out that delays in effective dates
of these rules could impact attainment for the BPA area. The lawsuits
are pending and final resolutions have not been made. As such, the
provisions of the regulations have not been invalidated. For the
purpose of this SIP revision approval, the HG area measures necessary
for HG to attain the ozone NAAQS levels, preparatory for the BPA area's
attainment of the Ozone NAAQS, stand.
Under the consent decree, if EPA has not fully approved an
attainment SIP for the HG area, then EPA must, by June 14, 2002,
promulgate a FIP.

IX. EPA Action

EPA is taking the following actions on the State submittals of
November 12, 1999, and April 25, 2000:
1. EPA is approving the ground-level one-hour ozone attainment
demonstration SIP for the BPA, Texas ozone nonattainment area.
2. EPA is approving the State's request to extend the ozone
attainment date for the BPA ozone nonattainment area to November 15,
2007 while retaining the area's current classification as a moderate
ozone nonattainment area.
3. EPA is approving the on-road motor vehicle emissions budgets.
4. EPA finds that the BPA area meets all remaining outstanding VOC
RACT requirements for major sources.
The EPA also approves the State's enforceable commitment to conduct
a mid-course review (including evaluation of all modeling, inventory
data, and other tools and assumptions used to develop this attainment
demonstration) and to submit a mid-course review SIP revision, with
recommended mid-course corrective actions, to the EPA by May 1, 2004.
If the subsequent analyses conducted by the State as part of the mid-
course review indicate additional reductions are needed for BPA to
attain the ozone standard, EPA will require the State to implement
additional controls as soon as possible until attainment is
demonstrated through an approvable attainment demonstration.

X. Administrative Requirements

Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and therefore is not
subject to review by the Office of Management and Budget. This action
merely approves state law as meeting federal requirements and imposes
no additional requirements beyond those imposed by state law.
Accordingly, the Administrator certifies that this rule will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this rule approves pre-existing requirements under state law and does
not impose any additional enforceable duty beyond that required by
state law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Public Law 104-4). This rule also does not
have a substantial direct effect on one or more Indian tribes, on the
relationship between the Federal Government and Indian tribes, or on
the distribution of power and responsibilities between the Federal
Government and Indian tribes, as specified by Executive Order 13175 (65
FR 67249, November 9, 2000), nor will it have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132 (64 FR 43255, August 10, 1999), because it
merely approves a state rule implementing a federal standard, and does
not alter the relationship or the distribution of power and
responsibilities established in the Clean Air Act. This rule also is
not subject to Executive Order 13045 (62 FR 19885, April 23, 1997),
because it is not economically significant.

[[Page 26939]]

In reviewing SIP submissions, EPA's role is to approve state
choices, provided that they meet the criteria of the Clean Air Act. In
this context, in the absence of a prior existing requirement for the
State to use voluntary consensus standards (VCS), EPA has no authority
to disapprove a SIP submission for failure to use VCS. It would thus be
inconsistent with applicable law for EPA, when it reviews a SIP
submission, to use VCS in place of a SIP submission that otherwise
satisfies the provisions of the Clean Air Act. Thus, the requirements
of section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3
of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing
this rule, EPA has taken the necessary steps to eliminate drafting
errors and ambiguity, minimize potential litigation, and provide a
clear legal standard for affected conduct. EPA has complied with
Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the
takings implications of the rule in accordance with the ``Attorney
General's Supplemental Guidelines for the Evaluation of Risk and
Avoidance of Unanticipated Takings'' issued under the executive order.
This rule does not impose an information collection burden under the
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.).
The Congressional Review Act, 5 U.S.C. section 801 et seq., as
added by the Small Business Regulatory Enforcement Fairness Act of
1996, generally provides that before a rule may take effect, the agency
promulgating the rule must submit a rule report, which includes a copy
of the rule, to each House of the Congress and to the Comptroller
General of the United States. EPA will submit a report containing this
rule and other required information to the U.S. Senate, the U.S. House
of Representatives, and the Comptroller General of the United States
prior to publication of the rule in the Federal Register. A major rule
cannot take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
section 804(2). This rule will be effective June 14, 2001.
Under section 307(b)(1) of the Clean Air Act, petitions for
judicial review of this action must be filed in the United States Court
of Appeals for the appropriate circuit by July 16, 2001. Filing a
petition for reconsideration by the Administrator of this final rule
does not affect the finality of this rule for the purposes of judicial
review nor does it extend the time within which a petition for judicial
review may be filed, and shall not postpone the effectiveness of such
rule or action. This action may not be challenged later in proceedings
to enforce its requirements. (See section 307(b)(2).)

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,
Intergovernmental relations, Nitrogen Oxides, Ozone, Reporting and
recordkeeping requirements.

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

Dated: April 30, 2001.
Gregg A. Cooke,
Regional Administrator, Region 6.

Part 52, chapter I, title 40 of the Code of Federal Regulations is
amended as follows:

PART 52--[AMENDED]

1. The authority citation for Part 52 continues to read as follows:

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

Subpart SS--Texas

2. In Sec. 52.2270, four entries in the ``EPA Approved
Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas
SIP'' table in paragraph (e) are added, after the last listing in the
table, to read:

Sec. 52.2270 Identification of plan.

* * * * *
(e) * * *

EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP
----------------------------------------------------------------------------------------------------------------
Applicable State
Name of SIP provision geographic or submittal/ EPA approval Comments
nonattainment area effective date date
----------------------------------------------------------------------------------------------------------------

* * * * * *
*
Attainment Demonstration for the 1- Beaumont/Port Arthur, 04/19/00 5/15/01 66 FR 26939
hour Ozone NAAQS. TX.
Ozone Attainment Date Extension to Beaumont/Port Arthur, 04/19/00 5/15/01 66 FR 26939
11/15/07. TX.
Commitment by Texas to perform a Beaumont/Port Arthur, 04/19/00 5/15/01 66 FR 26939
mid-course review and submit a TX.
SIP revision by 05/01/04.
Finding that BPA area meets VOC Beaumont/Port Arthur, 04/19/00 5/15/01 66 FR 26939
RACT requirements as of 5/15/01. TX.
----------------------------------------------------------------------------------------------------------------

* * * * *
[FR Doc. 01-11564 Filed 5-14-01; 8:45 am]
BILLING CODE 6560-50-P

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Approval and Promulgation of Implementation Plans; Texas; Ozone; Beaumont/Port Arthur Ozone Nonattainment Area

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