[Federal Register: April 30, 2004 (Volume 69, Number 84)]
[Rules and Regulations]
[Page 23857-23951]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30ap04-17]
[[Page 23857]]
-----------------------------------------------------------------------
Part II
Environmental Protection Agency
-----------------------------------------------------------------------
40 CFR Part 81
40 CFR Parts 50, 51, and 81
8-Hour Ozone National Ambient Air Quality Standards; Final Rules
[[Page 23858]]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 81
[OAR-2003-0083; FRL-7651-8]
RIN 2060-
Air Quality Designations and Classifications for the 8-Hour Ozone
National Ambient Air Quality Standards; Early Action Compact Areas With
Deferred Effective Dates
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule sets forth the air quality designations and
classifications for every area in the United States, including Indian
country, for the 8-hour ozone national ambient air quality standard. We
are issuing this rule so that citizens will know whether the air where
they live and work is healthful or unhealthful and to establish the
boundaries and classifications for areas designated as nonattainment.
Children are at risk when exposed to ozone pollution because their
lungs are still developing, people with existing respiratory disease
are at risk, and even healthy people who are active outdoors can
experience difficulty breathing when exposed to ozone pollution. In
this document, EPA is also promulgating the first deferral of the
effective date, to September 30, 2005, of the nonattainment designation
for Early Action Compact areas that have met all milestones through
March 31, 2004. Finally, we are inviting States to submit by July 15,
2004, requests to reclassify areas if their design value falls within
five percent of a high or lower classification. This rule does not
establish or address State and Tribal obligations for planning and
control requirements which apply to nonattainment areas for the 8-hour
ozone standard. Two separate rules, one of which is also published
today, set forth the planning and control requirements which apply to
nonattainment areas for this standard. The second rule will be
published at a later date.
EFFECTIVE DATE: This final rule is effective on June 15, 2004.
ADDRESSES: EPA has established dockets for this action under Docket ID
No. OAR-2003-0083 (Designations) and OAR-2003-0090 (Early Action
Compacts). All documents in the docket are listed in the EDOCKET index
at http://www.epa.gov/edocket. Although listed in the index, some
information is not publicly available, i.e., Confidential Business
Information (CBI) or other information whose disclosure is restricted
by statute. Certain other material, such as copyrighted material, is
not placed on the Internet and will be publicly available only in hard
copy form. Publicly available docket materials are available either
electronically in EDOCKET or in hard copy at the Docket, EPA/DC, EPA
West, Room B102, 1301 Constitution Ave., NW., Washington, DC. The
Public Reading Room is open from 8:30 a.m. to 4:30 p.m. Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is (202) 566-1744, and the telephone number for the Office
of Air and Radiation Docket and Information Center is (202) 566-1742.
In addition, we have placed a copy of the rule and a variety of
materials regarding designations on EPA's designation Web site at:
http://www.epa.gov/oar/oaqps/glo/designations and on the Tribal Web site at: http://www.epa.gov/air/tribal. Materials relevant to Early
vant to Early
Action Compact (EAC) areas are on EPA's Web site at: http://www.epa.gov/ttn/naaqs/ozone/eac/w1040218_eac_resources.pdf.
In
addition, the public may inspect the rule and technical support at the
following locations.
------------------------------------------------------------------------
Regional offices States
------------------------------------------------------------------------
Dave Conroy, Acting Branch Chief, Air Connecticut, Maine,
Programs Branch, EPA New England, I Massachusetts, New Hampshire,
Congress Street, Suite 1100, Boston, Rhode Island, and Vermont.
MA 02114-2023, (617) 918-1661.
Raymond Werner, Chief, Air Programs New Jersey, New York, Puerto
Branch, EPA Region II, 290 Broadway, Rico, and Virgin Islands.
25th Floor, New York, NY 10007-1866,
(212) 637-4249.
Makeba Morris, Branch Chief, Air Delaware, District of Columbia,
Quality Planning Branch, EPA Region Maryland, Pennsylvania,
III, 1650 Arch Street, Philadelphia, Virginia, and West Virginia.
PA 19103-2187, (215) 814-2187.
Richard A. Schutt, Chief, Regulatory Alabama, Florida, Georgia,
Development Section, EPA Region IV, Kentucky, Mississippi, North
Sam Nunn Atlanta Federal Center, 61 Carolina, South Carolina, and
Forsyth Street, SW., 12th Floor, Tennessee.
Atlanta, GA 30303, (404) 562-9033.
Pamela Blakley, Acting Chief, Air Illinois, Indiana, Michigan,
Programs Branch, EPA Region V, 77 West Minnesota, Ohio, and
Jackson Street, Chicago, IL 60604, Wisconsin.
(312) 886-4447.
Donna Ascenzi, Acting Associate Arkansas, Louisiana, New
Director, Air Programs, EPA Region VI, Mexico, Oklahoma, and Texas.
1445 Ross Avenue, Dallas, TX 75202,
(214) 665-2725.
Joshua A. Tapp, Chief, Air Programs Iowa, Kansas, Missouri, and
Branch, EPA Region VII, 901 North 5th Nebraska.
Street, Kansas City, Kansas 66101-
2907, (913) 551-7606.
Richard R. Long, Director, Air and Colorado, Montana, North
Radiation Program, EPA Region VIII, Dakota, South Dakota, Utah,
999 18th Street, Suite 300, Denver, CO and Wyoming.
80202-2466, (303) 312-6005.
Steven Barhite, Air Planning Office, Arizona, California, Guam,
EPA Region IX, 75 Hawthorne Street, Hawaii, and Nevada.
San Francisco, CA 94105, (415) 972-
3980.
Bonnie Thie, Manager, State and Tribal Alaska, Idaho, Oregon, and
Air Programs, EPA Region X, Office of Washington.
Air, Waste, and Toxics, Mail Code OAQ-
107, 1200 Sixth Avenue, Seattle, WA
98101, (206) 553-1189.
------------------------------------------------------------------------
FOR FURTHER INFORMATION CONTACT: Ms. Sharon Reinders, Designations,
Office of Air Quality Planning and Standards, U.S. Environmental
Protection Agency, Mail Code C539-02, Research Triangle Park, NC 27711,
phone number (919) 541-5284 or by e-mail at: reinders.sharon@epa.gov.
Ms. Annie Nikbakht, Part 81 Code of Federal Regulations, Office of
Air Quality Planning and Standards, U.S. Environmental Protection
Agency, Mail Code C539-02, Research Triangle Park, NC 27711, phone
number (919) 541-5246 or by e-mail at: nikbakht.annie@epa.gov.
Mr. Doug Grano, Classifications, Office of Air Quality Planning and
[[Page 23859]]
Standards, U.S. Environmental Protection Agency, Mail Code C539-02,
Research Triangle Park, NC 27711, phone number (919) 541-3292 or by e-
mail at: grano.doug@epa.gov.
Mr. David Cole, Early Action Compacts, Office of Air Quality
Planning and Standards, U.S. Environmental Protection Agency, Mail Code
C539-02, Research Triangle Park, NC 27711, phone number (919) 541-5565
or by e-mail at: cole.david@epa.gov.
Mr. Barry Gilbert, Technical Issues, Office of Air Quality Planning
and Standards, U.S. Environmental Protection Agency, Mail Code C539-02,
Research Triangle Park, NC 27711, phone number (919) 541-5238 or by e-
mail at: gilbert.barry@epa.gov.
SUPPLEMENTARY INFORMATION:
Table of Contents
The following is an outline of the preamble.
I. Preamble Glossary of Terms and Acronyms
II. What Is the Purpose of This Document?
III. How Is Ground-Level Ozone Formed?
IV. What Are the Health Concerns Addressed by the 8-Hour Ozone
Standard?
V. What Is the Chronology of Events Leading Up to This Rule?
VI. What Are the Statutory Requirements for Designating Areas and
What Is EPA's Policy and Guidance for Determining Ozone
Nonattainment Area Boundaries for the 8-Hour Ozone NAAQS?
VII. What Are the Clean Air Act (CAA or Act) Requirements for Air
Quality Designations and what Actions Has EPA Taken To Meet the
Requirements?
A. Where Can I Find Information Forming the Basis for This Rule
and Exchanges Between EPA, States, and Tribes Related to This Rule?
VIII. What Are the CAA Requirements for Air Quality Classifications?
IX. What Action Is EPA Taking To Defer the Effective Date of
Nonattainment Designation for EAC Areas?
A. When Did EPA Propose the First Deferred Effective Date of
Nonattainment Designations?
B. What Progress Are Compact Areas Making Toward Completing
Their Milestones?
C. What Is Today's Final Action for Compact Areas?
D. What Is EPA's Schedule for Taking Further Action To Continue
To Defer the Effective Date of Nonattainment Designation for Compact
Areas?
E. What Action Will EPA Take if a Compact Area Does Not Meet a
Milestone?
F. What Comments Did EPA Receive on the December 16, 2003
Proposal and on the June 2, 2003 Proposed Implementation Rule
Specific to Compacts?
X. How Do Designations Affect Indian Country?
XI. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination With
Indian Tribal Governments
G. Executive Order 13045: Protection of Children from
Environmental Health and Safety Risks
H. Executive Order 13211: Actions That Significantly Affect
Energy Supply, Distribution, or Use
I. National Technology Transfer Advancement Act
J. Congressional Review Act
I. Preamble Glossary Of Terms And Acronyms
The following are abbreviations of terms used in the preamble.
CAA--Clean Air Act
CFR--Code of Federal Regulations
CBI--Confidential Business Information
CMAQ--Congestion Mitigation Air Quality
CMSA--Consolidated Metropolitan Statistical Area
D.C.--District of Columbia
EAC--Early Action Compact or Compact
EPA--Environmental Protection Agency or Agency
FR--Federal Register
MPO--Metropolitan Planning Organization
MSA--Metropolitan Statistical Area
NAAQS--National Ambient Air Quality Standard or Standard
NOX--Nitrogen Oxides
NOA--Notice of Availability
NPR--Notice of Proposed Rulemaking
NSR--New Source Review
OMB--Office of Management and Budget
PPM--Parts Per Million
RFG--Reformulated Fuel
RTC--Response to Comment
SIP--State Implementation Plan
TAR--Tribal Authority Rule
TEA-21--Transportation Equity Act for the 21st Century
TPY--Tons Per Year
TSD--Technical Support Document
U.S.--United States
VOC--Volatile Organic Compounds
II. What Is the Purpose of This Document?
The purpose of this document is to announce and promulgate
designations, classifications, and boundaries for areas of the country
with respect to the 8-hour ground-level ozone National Ambient Air
Quality Standard (NAAQS) in accordance with the requirements of the
CAA. We took several steps to announce that this rule was available. We
posted the rule on several EPA Web sites and provided a copy of the
rule, which was signed by the Administrator on April 15, 2004, to
States and Tribes.
III. How Is Ground-Level Ozone Formed?
Ground-level ozone (sometimes referred to as smog) is formed by the
reaction of volatile organic compounds (VOCs) and oxides of nitrogen
(NOX) in the atmosphere in the presence of sunlight. These
two pollutants, often referred to as ozone precursors, are emitted by
many types of pollution sources, including on-road and off-road motor
vehicles and engines, power plants and industrial facilities, and
smaller sources, collectively referred to as area sources. Ozone is
predominately a summertime air pollutant. Changing weather patterns
contribute to yearly differences in ozone concentrations from region to
region. Ozone and the pollutants that form ozone also can be
transported into an area from pollution sources found hundreds of miles
upwind.
IV. What Are the Health Concerns Addressed by the 8-Hour Ozone
Standard?
During the hot summer months, ground-level ozone reaches unhealthy
levels in several parts of the country. Ozone is a significant health
concern, particularly for children and people with asthma and other
respiratory diseases. Ozone has also been associated with increased
hospitalizations and emergency room visits for respiratory causes,
school absences, and reduced activity and productivity because people
are suffering from ozone-related respiratory symptoms.
Breathing ozone can trigger a variety of health problems. Ozone can
irritate the respiratory system, causing coughing, throat irritation,
an uncomfortable sensation in the chest, and/or pain when breathing
deeply. Ozone can worsen asthma and possibly other respiratory
diseases, such as bronchitis and emphysema. When ozone levels are high,
more people with asthma have attacks that require a doctor's attention
or the use of additional medication. Ozone can reduce lung function and
make it more difficult to breathe deeply, and breathing may become more
rapid and shallow than normal, thereby limiting a person's normal
activity. In addition, breathing ozone can inflame and damage the
lining of the lungs, which may lead to permanent changes in lung
tissue, irreversible reductions in lung function, and a lower quality
of life if the inflammation occurs repeatedly over a long time period
(months, years, a lifetime). People who are particularly
[[Page 23860]]
susceptible to the effects of ozone include children and adults who are
active outdoors, people with respiratory disease, such as asthma, and
people with unusual sensitivity to ozone.
More detailed information on the health effects of ozone can be
found at the following Web site: http://www.epa.gov/ttn/naaqs/standards/ozone/s_o3_index.html
.
V. What Is the Chronology of Events Leading Up to This Rule?
This section summarizes the relevant activities leading up to
today's rule, including promulgation of the 8-hour ozone NAAQS and
litigation challenging that standard. The CAA establishes a process for
air quality management through the NAAQS. Area designations are
required after promulgation of a new or revised NAAQS. In 1979, we
promulgated the 0.12 parts per million (ppm) 1-hour ozone standard, (44
Federal Register 8202, February 8, 1979). On July 18, 1997, we
promulgated a revised ozone standard of 0.08 ppm, measured over an 8-
hour period, i.e., the 8-hour standard (62 FR 38856). The 8-hour
standard is more protective of public health and more stringent than
the 1-hour standard. The NAAQS rule was challenged by numerous
litigants and in May 1999, the U.S. Court of Appeals for the D.C.
Circuit issued a decision remanding, but not vacating, the 8-hour ozone
standard. Among other things, the Court recognized that EPA is required
to designate areas for any new or revised NAAQS in accordance with the
CAA and addressed a number of other issues, which are not related to
designations. American Trucking Assoc. v. EPA, 175 F.3d 1027, 1047-48,
on rehearing 195 F.3d 4 (D.C. Cir., 1999). We sought review of two
aspects of that decision in the U.S. Supreme Court. In February 2001,
the Supreme Court upheld our authority to set the NAAQS and remanded
the case back to the D.C. Circuit for disposition of issues the Court
did not address in its initial decision. Whitman v. American Trucking
Assoc., 121 S. Ct. 903, 911-914, 916-919 (2001) (Whitman). The Supreme
Court also remanded the 8-hour implementation strategy to EPA. In March
2002, the D.C. Circuit rejected all remaining challenges to the 8-hour
ozone standard. American Trucking Assoc. v. EPA, 283 F.3d 355 (D.C.
Cir. 2002).
The process for designations following promulgation of a NAAQS is
contained in section 107(d)(1) of the CAA. For the 8-hour NAAQS, the
Transportation Equity Act for the 21st Century (TEA-21) extended by 1
year the time for EPA to designate areas for the 8-hour NAAQS.\1\ Thus,
EPA was required to designate areas for the 8-hour NAAQS by July 2000.
However, HR3645 (EPA's appropriation bill in 2000) restricted EPA's
authority to spend money to designate areas until June 2001 or the date
of the Supreme Court ruling on the standard, whichever came first. As
noted earlier, the Supreme Court decision was issued in February 2001.
In 2003, several environmental groups filed suit in district court
claiming EPA had not met its statutory obligation to designate areas
for the 8-hour NAAQS. We entered into a consent decree, which requires
EPA to issue the designations by April 15, 2004.
---------------------------------------------------------------------------
\1\ CAA 107(d)(1); TEA-21 Sec. 6103(a).
---------------------------------------------------------------------------
VI. What Are the Statutory Requirements for Designating Areas and What
Is EPA's Policy and Guidance for Determining Nonattainment Area
Boundaries for the 8-Hour Ozone NAAQS?
This section describes the statutory definition of nonattainment
and EPA's guidance for determining air quality attainment and
nonattainment areas for the 8-hour ozone NAAQS. In March 2000 \2\ and
July 2000 \3\ we issued designation guidance on how to determine the
boundaries for nonattainment areas. In that guidance, we rely on the
CAA definition of a nonattainment area that is defined in section
107(d)(1)(A)(i) as an area that is violating an ambient standard or is
contributing to a nearby area that is violating the standard. If an
area meets this definition, EPA is obligated to designate the area as
nonattainment.
---------------------------------------------------------------------------
\2\ Memorandum of March 28, 2002, from John S. Seitz, ``Boundary
Guidance on Air Quality Designations for the 8-Hour Ozone National
Ambient Air Quality Standards.''
\3\ Memorandum of July 18, 2000, from John S. Seitz, ``Guidance
on 8-Hour Ozone Designations for Indian Tribes.''
---------------------------------------------------------------------------
In making designations and classifications, we use the most recent
3 years of monitoring data.\4\ Therefore, today's designations and
classifications are generally based on monitoring data collected in
2001-2003 although other relevant years of data may have been used in
certain circumstances. Once we determine that a monitor is recording a
violation, the next step is to determine if there are any nearby areas
that are contributing to the violation and include them in the
designated nonattainment area.
---------------------------------------------------------------------------
\4\ To determine whether an area is attaining the 8-hour ozone
NAAQS, EPA considers the most recent 3 consecutive years of data in
accordance with 40 Code of Federal Regulations (CFR) part 50,
appendix I.
---------------------------------------------------------------------------
For guidance on determining the nonattainment boundary for the 8-
hour ozone standard, we look to CAA section 107(d)(4) that established
the Consolidated Metropolitan Statistical Area (CMSA) or Metropolitan
Statistical Area (MSA) presumptive boundary for more polluted areas
when we promulgated our designation actions in 1991 for the 1-hour
ozone standard. In our guidance on determining nonattainment area
boundaries for the 8-hour ozone standard, we advised States that if a
violating monitor is located in a CMSA or MSA (as defined by the Office
of Management and Budget (OMB) in 1999), the larger of the 1-hour ozone
nonattainment area or the CMSA or MSA should be considered in
determining the boundary of a nonattainment area. The actual size of
the nonattainment area may be larger or smaller, depending on air
quality-related technical factors contained in our designation
guidance. We start with counties in the CMSA or MSA because that area,
defined by OMB, generally shares economic, transportation, population
and other linkages that are similar to air quality related factors that
produce ozone pollution. Also, many CMSAs and MSAs generally are
associated with higher levels of ozone concentrations and ozone
precursor emissions than areas that are not in or near CMSAs or MSAs.
In June 2003, OMB released a new list of statistical areas. This
release was so late in the designation process that we determined that
it would be disruptive and unfair to the States and Tribes to revise
our guidance. However, we believe it is necessary to evaluate all
counties in and around an area containing a monitor that is violating
the standard, pursuant to our guidance to consider nearby areas that
are contributing to a violation in determining the boundaries of the
nonattainment area.
Once a CMSA, MSA or single county area is determined to contain a
monitor that is violating the standard, the area can be evaluated using
all applicable suggested air quality related factors in our guidance.
The factors can be used to justify including counties outside the CMSA
or MSA or excluding counties in the CMSA or MSA. The factors were
compiled based on our experience in designating areas for the ozone
standard in March 1978 and November 1991 and by looking to the CAA,
section 107(d)(4), which states that the Administrator and the Governor
shall consider factors such as population density, traffic congestion,
commercial
[[Page 23861]]
development, industrial development, meteorological conditions, and
pollution transport. State and local agencies also had extensive input
into compiling the factors.
The factors are:
(1) Emissions and air quality in adjacent areas (including adjacent
CMSAs and MSAs),
(2) Population density and degree of urbanization including
commercial development (significant difference from surrounding areas),
(3) Monitoring data representing ozone concentrations in local
areas and larger areas (urban or regional scale),
(4) Location of emission sources (emission sources and nearby
receptors should generally be included in the same nonattainment area),
(5) Traffic and commuting patterns,
(6) Expected growth (including extent, pattern and rate of growth),
(7) Meteorology (weather/transport patterns),
(8) Geography/topography (mountain ranges or other air basin
boundaries),
(9) Jurisdictional boundaries (e.g., counties, air districts,
existing 1-hour nonattainment areas, Reservations, etc.),
(10) Level of control of emission sources, and,
(11) Regional emissions reductions (e.g., NOX State
Implementation Plan (SIP) Call or other enforceable regional
strategies).
When evaluating the air quality factors for individual areas, we
took into account our view that data recorded by an ozone air quality
monitor in most cases represents air quality throughout the area in
which it is located. In addition, we used the county (or in the case of
parts of New England, the township) as the basic jurisdictional unit in
determining the extent of the area reflected by the ozone monitor data.
As a result, if an ozone monitor was violating the standard based on
the 2001-2003 data, we designated the entire county as nonattainment.
There were some exceptions to this rule: in cases where a county was
extremely large as in the West; where a geographic feature bifurcated a
county, leading to different air quality in different parts of the
county; and where a mountain top monitor reflected the air quality data
only on the mountain top and not in lower elevation areas.
After identifying the counties with violating monitors, we then
determined which nearby counties were not monitoring violations but
were nonetheless contributing to the nearby violation. We considered
each of the 11 factors in making our contribution assessment, including
emissions, traffic patterns, population density, and area growth. In
some cases, in considering these factors, as well as information and
recommendations provided by the State, we determined that only part of
a county was contributing to the nearby nonattainment area. In
addition, in certain cases, we determined that a county without an
ozone monitor should be designated nonattainment because contiguous
counties have monitors that are violating the standard. In at least two
instances, we determined that a part of a county with no monitor, but
with a large emission source that did not have state-of-the-art
controls, contributes to a nearby violation. In some instances, if a
State had requested that we continue to use the 1-hour ozone
nonattainment boundary for an area, we continued to use that boundary
in determining the size of the 8-hour nonattainment area.
The EPA cannot rely on planned ozone reduction strategies in making
decisions regarding nonattainment designations, even if those
strategies predict that an area may attain in the future. We recognize
that some areas with a violating monitor may come into attainment in
the future without additional local emission controls because of State
and/or national programs that will reduce ozone transport. While we
cannot consider these analyses in determining designations, we intend
to expedite the redesignation of the areas to attainment once they
monitor clean air. We also intend to apply our policy which streamlines
the planning process for nonattainment areas that are meeting the
NAAQS.\5\
---------------------------------------------------------------------------
\5\ Memorandum of May 10, 1995, from John S. Seitz, ``Reasonable
Further Progress, Attainment Demonstration, and Related Requirements
for Ozone Nonattainment Areas Meeting the Ozone National Ambient Air
Quality Standard.''
---------------------------------------------------------------------------
We believe that area-to-area variations must be considered in
determining whether to include a county as contributing to a particular
nonattainment problem. Thus, our guidance does not establish cut-points
for how a particular factor is applied, e.g., it does not identify a
set amount of VOC or NOX emissions or a specific level of
commuting population that would result in including a county in the
designated nonattainment area. For example, a county with a large
source or sources of NOX emissions may be considered as a
contributing county if it is upwind, rather than downwind, of a
violating monitor. Additionally, a county with VOC emissions of 5,000
tons per year (tpy) might be viewed differently if the total VOC
emissions of the area are 15,000 tpy rather than 30,000 tpy. We
analyzed the information provided by each State or Tribe in its
recommendation letter, or subsequently submitted, along with any other
pertinent information available to EPA, to determine whether a county
should be designated nonattainment. We evaluated each State or Tribal
designation recommendation in light of the 11 factors, bringing to bear
our best technical and policy judgement. If the result of the
evaluation is that a county, whether inside or outside of the CMSA or
MSA, is contributing to the violation, we designated the area as
nonattainment.
VII. What Are the CAA Requirements for Air Quality Designations and
What Actions Has EPA Taken To Meet the Requirements?
In this part, we summarize the provisions of section 107(d)(1) of
the CAA that govern the process States and EPA must undertake to
recommend and promulgate designations. Following promulgation of a
standard, each State Governor or Tribal leader has an opportunity to
recommend air quality designations, including appropriate boundaries,
to EPA. No later than 120 days prior to promulgating designations, we
must notify States or Tribes if we intend to make modifications to
their recommendations and boundaries as we deem necessary. States and
Tribes then have an opportunity to provide a demonstration as to why
the proposed modification is inappropriate. Whether or not a State or
Tribe provides a recommendation, EPA must promulgate the designation it
deems appropriate.
In June 2000, we asked each State and Tribal Governor or Tribal
leader to submit their designation recommendations and supporting
documentation to EPA. Because of the uncertainties due to the ongoing
litigation on the ozone standard, we did not notify States and Tribes
of any intended modifications and did not designate areas at that time.
After the legal challenges to the ozone NAAQS were resolved, we
requested that States and Tribes provide updated recommendations and
any additional supporting documentation by July 15, 2003. EPA published
a Notice of Availability (NOA) announcing the availability of the State
and Tribal recommendations in the FR on September 8, 2003 (68 FR
52933). After carefully evaluating each recommendation and the
supporting documentation, on December 3, 2003, we wrote a letter to
each State and Tribe notifying them if we intended to make a
modification to their recommendation and indicating the area with which
we agreed with their recommendation. We
[[Page 23862]]
provided an opportunity until February 6, 2004, for a demonstration as
to why our modification was not appropriate. A NOA announcing the
availability of our letters was published in the FR on December 10,
2003 (68 FR 68805). In response to our December 3, 2003 letters, we
received letters and demonstrations from many States and Tribes on why
our modifications were not appropriate. We evaluated each letter and
all of the timely technical information provided to us before arriving
at the final decisions reflected in today's rule. Some of the
designations reflect our modifications to the State or Tribes'
recommendations. Throughout the designation process, we have received
letters from other interested parties. We have placed these letters and
our responses to the substantive issues raised by them in the docket.
Responses to significant comments received on EAC areas are summarized
in this document.
Tribal designation activities are covered under the authority of
section 301(d) of the CAA. This provision of the Act authorizes us to
treat eligible Indian Tribes in the same manner as States. Pursuant to
section 301(d)(2), we promulgated regulations known as the Tribal
Authority Rule (TAR) on February 12, 1999, that specify those
provisions of the CAA for which it is appropriate to treat Tribes as
States, (63 FR 7254), codified at 40 CFR part 49 (1999). Under the TAR,
Tribes may choose to develop and implement their own CAA programs, but
are not required to do so. The TAR also establishes procedures and
criteria by which Tribes may request from EPA a determination of
eligibility for such treatment. The designations process contained in
section 107(d) of the CAA is included among those provisions determined
appropriate by us for treatment of Tribes in the same manner as States.
As authorized by the TAR, Tribes may request an opportunity to submit
designation recommendations to us. In cases where Tribes do not make
their own recommendations, EPA, in consultation with the Tribes, will
promulgate the designation we deem appropriate on their behalf. We
invited all Tribes to submit recommendations to us. We worked with the
Tribes that requested an opportunity to submit designation
recommendations. Eligible Tribes could choose to submit their own
recommendations and supporting documentation. We reviewed the
recommendations made by Tribes and, in consultation with the Tribes,
made modifications as deemed necessary. Under the TAR, Tribes generally
are not subject to the same submission schedules imposed by the CAA on
States. However, we worked with Tribes in scheduling interim activities
and final designation actions because of the consent decree obligating
us to have a signed rule designating areas by April 15, 2004.
Today's designation action is a final rule establishing
designations for all areas of the country. Today's action also sets
forth the classifications for subpart 2 ozone nonattainment areas.
Section 181(a) provides that areas will be classified at the time of
designation. This rulemaking fulfills those requirements.
Classifications are discussed below.
A. Where Can I Find Information Forming the Basis for This Rule and
Exchanges Between EPA, States, and Tribes Related to This Rule?
Discussions concerning the basis for today's actions and decisions
are provided in the technical support document (TSD). The TSD, along
with copies of all of the above mentioned correspondence, other
correspondence between the States, Tribes, interested parties, and EPA
regarding this process and guidance memoranda are available for review
in the EPA Docket Center listed above in the addresses section of this
document and on our designation Web site at: http://www.epa.gov/oar/oaqps/glo/designations.
State specific information is available at the
EPA Regional Offices.
VIII. What Are the CAA Requirements for Air Quality Classifications?
The CAA contains two sets of provisions--subpart 1 and subpart 2--
that address planning and control requirements for nonattainment areas.
(Both are found in title I, part D.) Subpart 1 (which we refer to as
``basic'' nonattainment contains general, less prescriptive,
requirements for nonattainment areas for any pollutant--including
ozone--governed by a NAAQS. Subpart 2 (which we refer to as
``classified'' nonattaiment) provides more specific requirements for
ozone nonattainment areas.\6\ Some areas will be subject only to the
provisions of subpart 1. Other areas will be subject to the provisions
of subpart 2. Section 172(a)(1) provides that EPA has the discretion to
classify areas subject only to subpart 1. Under subpart 2, areas will
be classified based on each area's design value. Control requirements
are linked to each classification. Areas with more serious ozone
pollution are subject to more prescribed requirements. The requirements
are designed to bring areas into attainment by their specified
attainment dates.
---------------------------------------------------------------------------
\6\ State Implementation Plans; General Preamble for the
Implementation of Title I of the CAA Amendments of 1990; Proposed
Rule.'' April 16, 1992 (57 FR 13498 at 13501 and 13510).
---------------------------------------------------------------------------
Under our 8-hour ozone implementation rule, signed on April 15,
2004, an area will be classified under subpart 2 based on its 8-hour
design value \7\ if it has a 1-hour design value at or above 0.121 ppm
(the lowest 1-hour design value in Table 1 of subpart 2). All other
areas will be covered under subpart 1. Section 172(a)(1) provides EPA
with discretion whether to classify areas under subpart 1 and we are
not classifying subpart 1 areas, with one exception. As noted in EPA's
final rule on implementing the 8-hour ozone standard (Phase 1
implementation rule), we are creating an overwhelming transport
classification that will be available to subpart 1 areas that
demonstrate they are affected by overwhelming transport of ozone and
its precursors and demonstrate they meet the definition of a rural
transport area in section 182(h). No subpart 1 areas are being
classified in today's action; however, for informational purposes, 8-
hour ozone nonattainment areas covered under subpart 1 are identified
as such in the classification column in 40 CFR part 81.
---------------------------------------------------------------------------
\7\ For the 1-hour ozone NAAQS, design value is defined at 40
CFR 51.900(c). For the 8-hour ozone NAAQS, design value is defined
at 40 CFR 51.900(d).
---------------------------------------------------------------------------
Any area with a 1-hour ozone design value (based on the most recent
3 years of data) that meets or exceeds the statutory level of 0.121 ppm
that Congress specified in Table 1 of section 181 is classified under
subpart 2 and is subject to the control obligations associated with its
classification.\8\ Subpart 2 areas are classified as marginal,
moderate, serious, or severe based on the area's 8-hour design value
calculated using the most recent 3 years of data.\9\ As described in
the Phase 1 implementation rule, since Table 1 is based on 1-hour
design values, we promulgated in that rule a regulation translating the
thresholds in Table 1 of section 181 from 1-hour values to 8-hour
values. (See Table 1, below, ``Classification for 8-Hour NAAQS'' from
40 CFR 51.903.)
---------------------------------------------------------------------------
\8\ In the Phase 2 implementation rule, we will address the
control obligations that apply to areas under both subpart 1 and
subpart 2.
\9\ At this time, there are no areas with design values in the
extreme classification for the 8-hour ozone standard.
[[Page 23863]]
Table 1.--Classification for 8-Hour Ozone NAAQS
----------------------------------------------------------------------------------------------------------------
Maximum period for
Attainment dates in
8-hour design State plans (years
Area class value (ppm after effective date of
ozone) nonattainment
designation for 8-hour
NAAQS)
----------------------------------------------------------------------------------------------------------------
Marginal................................. from........................ 0.085 3
up to*...................... 0.092
Moderate................................. from........................ 0.092 6
up to*...................... 0.107
Serious.................................. from........................ 0.107 9
up to*...................... 0.120
Severe-15................................ from........................ 0.120 15
up to*...................... 0.127
Severe-17................................ from........................ 0.127 17
up to*...................... 0.187
Extreme.................................. equal to or above.......... 0.187 20
----------------------------------------------------------------------------------------------------------------
*But not including.
Five Percent Bump Down
Under section 181(a)(4), an ozone nonattainment area may be
reclassified ``if an area classified under paragraph (1) (Table 1)
would have been classified in another category if the design value in
the area were 5 percent greater or 5 percent less than the level on
which such classification was based.'' The section also states that
``In making such adjustment, the Administrator may consider the number
of exceedances of the national primary ambient air quality standard for
ozone in the area, the level of pollution transport between the area
and other affected areas, including both intrastate and interstate
transport, and the mix of sources and air pollutants in the area.
As noted in the November 6, 1991, FR on designating and classifying
areas, the section 181(a)(4) provisions grant the Administrator broad
discretion in making or determining not to make, a reclassification (56
FR 56698). As part of the 1991 action, EPA developed criteria (see list
below) to evaluate whether it is appropriate to reclassify a particular
area. In 1991, EPA approved reclassifications when the area met the
first requirement (a request by the State to EPA) and at least some of
the other criteria and did not violate any of the criteria (emissions,
reductions, trends, etc.). We intend to use this method and these
criteria once again to evaluate reclassification requests under section
181(a)(4), with the minor changes noted below. Because section
181(b)(3) provides that an area may request a higher classification and
EPA must grant it, these criteria primarily focus on how we will assess
requests for a lower classification. We further discuss bump ups below.
Request by State: The EPA does not intend to exercise its authority
to bump down areas on EPA's own initiative. Rather, EPA intends to rely
on the State to submit a request for a bump down. A Tribe may also
submit such a request and, in the case of a multi-state nonattainment
area, all affected States must submit the reclassification request.
Discontinuity: A five percent reclassification must not result in
an illogical or excessive discontinuity relative to surrounding areas.
In particular, in light of the area-wide nature of ozone formation, a
reclassification should not create a ``donut hole'' where an area of
one classification is surrounded by areas of higher classification.
Attainment: Evidence should be available that the proposed area
would be able to attain by the earlier date specified by the lower
classification in the case of a bump down.
Emissions reductions: Evidence should be available that the area
would be very likely to achieve the appropriate total percent emission
reduction necessary in order to attain in the shorter time period for a
bump down.
Trends: Near- and long-term trends in emissions and air quality
should support a reclassification. Historical air quality data should
indicate substantial air quality improvement for a bump down. Growth
projections and emission trends should support a bump down. In
addition, we will consider whether vehicle miles traveled and other
indicators of emissions are increasing at higher than normal rates.
Years of data: For the 8-hour ozone standard, the 2001-2003 period
is central to determining classification. This criterion has been
updated to reflect the latest air quality data available to make the
determinations within the statute's 90 day limitation.
Limitations on Bump Downs
An area may only be reclassified to the next lower classification.
An area cannot present data from other years as justification to be
reclassified to an even lower classification. In addition, section
181(a)(4) does not permit moving areas from subpart 2 into subpart 1.
The EPA applied these criteria in 1991. For example, our action to
bump down one area from severe to serious considered trends in
population and emissions data, similarities to a nearby serious area,
disparity with a nearby moderate area, the logical gradation of
attainment deadlines proceeding outward from large metropolitan areas
upwind, and the likelihood that the area would be able to attain the
NAAQS in the shorter time frame. In approving a bump down to marginal,
we noted that air quality trends showed improvement and recent air
quality data indicated a marginal status. In denying a bump down, we
analyzed local air quality trends and emission sources and considered
long range transport from an area with a much later attainment
deadline, which together made it unlikely the candidate area could
attain the standard in the shorter time frame associated with the lower
classification. Requests to bump down areas were also denied due, in
part, to concern that transport of emissions from these areas would
make it less likely that downwind nonattainment areas could attain the
standards in a timely fashion. For additional information, see section
5, ``Areas requesting a 5% downshift per Sec. 181(a)(4) and EPA's
response to those requests,'' of the Technical Support Document,
October 1991 for the 1991 rule. [Docket A-90-42A.]
[[Page 23864]]
Five Percent Bump Up
An ozone nonattainment area may also be reclassified under section
181(a)(4) to the next higher classification. For the reasons described
below (``Other Reasons to Consider Bump Ups''), we believe some areas
with design values close to the next higher classification may not be
able to attain within the period allowed by their classification. We
encourage States to request reclassification upward where the State
finds that an area may need more time to attain than their
classification would permit. In addition, EPA will consider bumping up
areas subject to the five percent provision on our own initiative where
there is evidence that an area is unlikely to attain within the period
allowed by their classification. In making this determination, EPA
would consider criteria similar to that listed above (adjusted to
consider bump ups rather than bump downs) regarding discontinuity,
attainment, emissions reduction and trends. The following areas have
design values based on 2001-2003 data that fall within five percent of
the next higher classification:
Marginal areas within five percent of Moderate
Portland, ME; Atlanta, GA; Beaumont-Port Arthur, TX; and Norfolk,
VA
Moderate areas within five percent of Serious
New York-New Jersey-Long Island, NY-NJ-CT; Los Angeles-San
Bernardino Counties (W. Mojave), CA; Baltimore, MD; Cleveland-Akron-
Lorain, OH; and Houston-Galveston-Brazoria, TX
Serious areas within five percent of Severe-15
San Joaquin Valley, CA
Calculation of Five Percent
For an area to be eligible for a bump down (or bump up) under
section 181(a)(4), the area's design value must be within five percent
of the next lower (or higher) classification. For example, an area with
a moderate design value of 0.096 ppm (or less) would be eligible to
request a bump down because five percent less than 0.096 ppm is 0.091
ppm, a marginal design value.\10\ An area with a moderate design value
of 0.102 ppm (or more) would be eligible for a bump up because five
percent more than 0.102 ppm is 0.107 ppm, a serious design value. As a
result, the following areas may be eligible to request a bump down:
moderate areas with a design value of 0.096 ppm or less; serious areas
with a design value of 0.112 ppm or less; and severe-17 areas with a
design value of 0.133 ppm or less. Similarly, for bump ups, the
following areas may be eligible: marginal areas with a design value of
0.088 ppm or more; moderate areas with a design value of 0.102 ppm or
more; and serious areas with a design value of 0.115 ppm or more.
---------------------------------------------------------------------------
\10\ See EPA's ``Guideline on Data Handling Conventions for the
8-Hour Ozone NAAQS'' (12-98) and appendix I to 40 CFR part 50.
---------------------------------------------------------------------------
Timing of the Five Percent Reclassifications
The notice of availability for this rule permits States to submit
five percent reclassification requests within 30 days of the effective
date of the designations and classifications. The effective date is
June 15 which means that reclassification requests must be submitted by
July 15, 2004. This relatively short time frame is necessary because
section 181(a)(4) only authorizes the Administrator to make such
reclassifications within 90 days after the initial classification.
Thus, the Governor or eligible Tribal governing body of any area that
wishes to pursue a reclassification should submit all requests and
supporting documentation to the EPA Regional office by July 15, 2004.
We will make a decision by September 15, 2004.
Other Reasons To Consider Bump Ups
We encourage States to consider a voluntary bump up in cases where
the State finds that an area may need more time to attain the 8-hour
NAAQS than its classification would permit. In addition to the
reclassification provision of section 181(a)(4), a State can request a
higher classification under section 181(b)(3) of the CAA. This
provision directs EPA to grant a State's request for a higher
classification and to publish notice of the request and EPA's approval.
In addition, we are interpreting section 181(b)(3) to allow a State
with an area covered under subpart 1 to request a reclassification to a
subpart 2 classification.
We note that it is difficult to determine when an area will be able
to attain the NAAQS in advance of State development of attainment
plans. These plans are based on high-resolution local air quality
modeling, refined emissions inventories, use of later air quality data,
and detailed analyses of the impacts and costs of potential local
control measures. As noted earlier, we are classifying nonattainment
areas subject to subpart 2 based on the most recent ozone design values
at the time of designation, the 2001-2003 period. Because of year-to-
year variations in meteorology, this snapshot in time may not be
representative of the normal magnitude of problems that some areas may
face.
The EPA's analysis in the proposed Interstate Air Quality Rule
(IAQR) uses design values taken from the 2000-2002 period, rather than
the 2001-2003 data used in the classification process. At the time the
IAQR modeling was completed, 2000-2002 was the latest period which was
available for determining designation compliance with the NAAQS.
Concentrations of ozone in 2010 were estimated by applying the relative
change in model predicted ozone from 2001 to 2010 with the 8-hour ozone
design values (2000-2002). The IAQR base case analysis (which assumes
existing control requirements only) projects ozone values in 2010 for
several areas--for example, Baltimore, Houston, New York and
Philadelphia--that are high enough to suggest that the areas may be
unable to attain by 2010, given our current information on the
potential for additional controls. Yet, as a result of their
classification, these areas are required to adopt a plan to attain the
8-hour ozone standard earlier than the 2010 ozone season. Atlanta has a
projected 2010 ozone value much closer to the standard, but has an
attainment date prior to the 2007 ozone season. Thus, the IAQR
analysis, based on the 2000-2002 period, suggests that States should
evaluate whether certain areas may need more time to attain. States
should consider in their local air quality modeling whether an area's
projected air quality level would be higher if the projection were
based on different three-year base periods. While we recognize that
future local analyses for specific nonattainment areas may show
different results than the regional IAQR analysis, we encourage States
to consider requesting a higher classification for areas that the State
believes need more time to attain, especially in cases where existing
modeling analysis and information on potential controls suggests more
time is needed than their classification would permit.
IX. What Action Is EPA Taking To Defer the Effective Date of
Nonattainment Designations for EAC Areas?
This section discusses EPA's final action with respect to deferring
the effective date of nonattainment designations for areas of the
country that do not meet the 8-hour ozone NAAQS and are participating
in the EAC program. By December 31, 2002, we entered into compacts with
33 communities. To receive this deferral, these EAC areas have agreed
to reduce ground-level ozone pollution earlier
[[Page 23865]]
than the CAA would require. This final rule for compact areas addresses
several key aspects of the proposed rule, including deferral of the
effective date of nonattainment designation for certain compact areas;
progress of compact areas toward completing their milestones; final
action for compact areas; EPA's schedule for taking further action to
continue to defer the effective date of nonattainment designations, if
appropriate; and consequences for compact areas that do not meet a
milestone. In this action, we have added regulatory text to clarify
specific requirements in part 81 for compact areas and to identify
actions that we will take to address any failed milestones. Finally, we
have responded to the significant comments on the proposed rule.
A. When Did EPA Propose the First Deferred Effective Date of
Nonattainment Designations?
On December 16, 2003 (68 FR 70108), we published a proposed rule to
defer the effective date of air quality nonattainment designations for
EAC areas that do not meet the 8-hour ozone NAAQS. The proposal also
described the compact approach, the requirements for areas
participating in the program, and the impacts of the program on these
areas. Compact areas have agreed to reduce ground-level ozone pollution
earlier than the CAA would require. Please refer to the proposed rule
for a detailed discussion and background information on the development
of the compact program, what compact areas are required to do, and the
impacts of the program.
Table 2 describes the milestones and submissions that compact areas
are required to complete to continue eligibility for a deferred
effective date of nonattainment designation for the 8-hour ozone
standard.
Table 2.--Early Action Compact Milestones
------------------------------------------------------------------------
Submittal date Compact milestone
------------------------------------------------------------------------
December 31, 2002............ Submit Compact for EPA signature.
June 16, 2003................ Submit preliminary list and description
of potential local control measures
under consideration.
March 31, 2004............... Submit complete local plan to State
(includes specific, quantified and
permanent control measures to be
adopted).
December 31, 2004............ State submits adopted local measures to
EPA as a SIP revision that, when
approved, will be federally enforceable.
2005 Ozone Season (or no Implement SIP control measures.
later than December 31,
2005).
June 30, 2006................ State reports on implementation of
measures and assessment of air quality
improvement and reductions in NOX and
VOC emissions to date
December 31, 2007............ Area attains 8-hour ozone NAAQS.
------------------------------------------------------------------------
B. What Progress Are Compact Areas Making Toward Completing Their
Milestones?
In this section we describe the status of the compact areas'
progress toward meeting their compact milestones. In general, these
areas have made satisfactory progress toward timely completion of their
milestones. As reported in the December 16, 2003 proposal, all 33
communities met the June 16, 2003 milestone, which required areas to
submit a list and description of local control measures each area
considered for adoption and implementation. A compiled list, as well as
highlights, of these local measures is found on EPA's Web site for
compact areas at http://www.epa.gov/ttn/ naaqs/ozone/eac/
index.htm#EACsummary. By December 31, 2003, compact areas reported the
status of these measures by identifying the local measures still under
consideration at that time, the estimated emissions reductions expected
from these measures, and the schedule for implementation. A summary of
the local measures as reported in December 2003 is presented on EPA's
EAC Web site at http://www.epa.gov/ttn/ naaqs/ozone/eac/20031231--
eac--measures--full--list.pdf.
By March 31, 2004, compact areas submitted local plans, which
included measures for adoption that are specific, quantified, and
permanent, and if approved by EPA, will be federally enforceable as
part of the SIP. These plans also included specific implementation
dates for the local controls, as well as a technical assessment of
whether the area could attain the 8-hour ozone NAAQS by the December
31, 2007 milestone, which is described in Table 2. The local plans for
all compact areas are posted on the EAC Web site at: http://www.epa.gov/ttn
/naaqs/ozone/eac/#List.
The EPA reviewed all of the local plans submitted by March 31, 2004
and determined that most of the plans were acceptable. With respect to
control strategies, a number of areas are relying on measures to be
adopted by the State, and are committed to implement these measures by
2005. In many cases, particularly in the southeast, the MAC areas
demonstrated that they can attain the 8-hour ozone standard by December
2007 without implementation of local controls. In general, the
technical demonstrations of attainment were acceptable; however, some
of the 33 communities did not project attainment in 2007 (the
attainment test) based on modeling, unless they considered additional
factors to supplement their analysis (i.e., weight of evidence). In
evaluating a State's weight of evidence determination for an area, we
consider the results of the modeled, attainment test--for all EAC
areas, a demonstration of attainment in 2007--along with additional
information, such as predicted air quality improvement, meteorological
influences, and additional measures not modeled. Our modeling guidance
indicates that the farther an area is from the level of the standard,
the more compelling the additional information needs to be in order to
demonstrate that the area will attain the standard. Based on our
analysis of the technical information provided, we believe that some
areas did not present as strong a case as other areas to demonstrate
attainment by December 2007. Three areas in Tennessee, Knoxville,
Memphis and Chattanooga each developed attainment demonstrations that
generally conform to our modeling guidance. However, in reviewing and
analyzing the local plans for these areas, we determined that
Knoxville, Memphis and Chattanooga did not pass the modeled attainment
test and the predicted air quality improvement test. In addition, our
review of meteorological influences for the three areas was
inconclusive; and these areas did not provide additional measures not
already modeled. In
[[Page 23866]]
addition to the technical analysis, we reviewed the strength of the
control strategies each EAC area proposed in their March 31, 2004
plans. We determined that the control measures submitted by these three
areas could have been strengthened, and the Agency expected more local
measures. Therefore, EPA determined that the States' technical
assessments for each of these areas and their suite of measures were
not acceptable. The only other two compact areas that did not pass the
modeled attainment test, the Denver, Colorado area and the Triad
(Greensboro-Winston-Salem-High Point), North Carolina area, provided
more meaningful local control measures than the three Tennessee compact
areas.
Based on our review and evaluation of these local plans, we have
determined that Knoxville, Memphis and Chattanooga do not meet the
March 31, 2004 milestone. In accordance with the Early Action Protocol
and agency guidance, all EAC areas must meet all compact milestones,
including this most recent one, to be eligible for the deferred
effective date of designation. Consequently, today, these three areas
are being designated nonattainment, effective June 15, 2004, and are
subject to full planning requirements of title I, part D of the CAA.
For the other EAC areas not meeting the 8-hour ozone standard, which we
determined have complied with the March 2004 milestone, are being
designated nonattainment with a deferred effective date of September
30, 2005. By that date, we intend to take notice and comment rulemaking
and promulgate approval or disapproval of these plans as SIP revisions.
The local plans that are approved at that time will be eligible for an
extension of the deferred effective date. If EPA disapproves any local
plans at that time, the nonattainment designation will become effective
immediately. Our evaluations of all local plans submitted by March 31,
2004, are included in the TSD for this rulemaking.
Table 3 lists the EAC areas and their air quality designation for
the 8-hour ozone standard by county. The table in Part 81 lists 8-hour
ozone designations for all areas of the country.
Table 3.--Designation of Counties Participating in Early Action Compacts
----------------------------------------------------------------------------------------------------------------
Compact area Effective
State (designated area) County Designation date
----------------------------------------------------------------------------------------------------------------
EPA Region 3
----------------------------------------------------------------------------------------------------------------
VA...................... Northern Shenandoah Winchester City........ Nonattainment-deferred. 9/30/2005
Valley Region
(Frederick County,
VA), adjacent to
Washington, DC-MD-VA.
Frederick County....... Nonattainment-deferred. 9/30/2005
VA...................... Roanoke Area (Roanoke, Roanoke County......... Nonattainment-deferred. 9/30/2005
VA).
Botetourt County....... Nonattainment-deferred. 9/30/2005
Roanoke City........... Nonattainment-deferred. 9/30/2005
Salem City............. Nonattainment-deferred. 9/30/2005
MD...................... Washington County Washington County...... Nonattainment-deferred. 9/30/2005
(Washington County
(Hagerstown), MD),
adjacent to
Washington, DC-MD-VA.
WV...................... The Eastern Pan Handle Berkeley County........ Nonattainment-deferred. 9/30/2005
Region (Berkeley &
Jefferson Counties,
WV), Martinsburg area.
Jefferson County....... Nonattainment-deferred. 9/30/2005
-------------------------
EPA Region 4
----------------------------------------------------------------------------------------------------------------
NC...................... Mountain Area of Buncombe County........ Unclassifiable/ 6/15/2004
Western NC (includes Attainment.
Asheville).
Haywood County (part).. Unclassifiable/ 6/15/2004
Attainment.
Henderson County (opt Unclassifiable/ 6/15/2004
out)\1\. Attainment.
Madison County......... Unclassifiable/ 6/15/2004
Attainment.
Transylvania County Unclassifiable/ 6/15/2004
(opt out)\1\. Attainment.
NC...................... Unifour (Hickory- Catawba County......... Nonattainment-deferred. 9/30/2005
Morganton-Lenoir, NC).
Alexander County....... Nonattainment-deferred. 9/30/2005
Burke County (part).... Nonattainment-deferred. 9/30/2005
Caldwell County (part). Nonattainment-deferred. 9/30/2005
NC...................... Triad (Greensboro- Surry County........... Unclassifiable/ 6/15/2004
Winston-Salem-High Attainment.
Point, NC).
Yadkin County.......... Unclassifiable/ 6/15/2004
Attainment.
Randolph County........ Nonattainment-deferred. 9/30/2005
Forsyth County......... Nonattainment-deferred. 9/30/2005
Davie County........... Nonattainment-deferred. 9/30/2005
Alamance County........ Nonattainment-deferred. 9/30/2005
Caswell County......... Nonattainment-deferred. 9/30/2005
Davidson County........ Nonattainment-deferred. 9/30/2005
Stokes County.......... Unclassifiable/ 6/15/2004
Attainment.
Guilford County........ Nonattainment-deferred. 9/30/2005
Rockingham County...... Nonattainment-deferred. 9/30/2005
NC...................... Fayetteville Cumberland County...... Nonattainment-deferred. 9/30/2005
(Fayetteville, NC).
SC...................... Appalachian--A Cherokee County........ Unclassifiable/ 6/15/2004
(Greenville- Attainment.
Spartanburg-Anderson,
SC).
Spartanburg County..... Nonattainment-deferred. 9/30/2005
Greenville County...... Nonattainment-deferred. 9/30/2005
Pickens County......... Unclassifiable/ 6/15/2004
Attainment.
Anderson County........ Nonattainment-deferred. 9/30/2005
[[Page 23867]]
Oconee County.......... Unclassifiable/ 6/15/2004
Attainment.
SC...................... Catawba--B Part of York York County (part) \2\. Nonattainment.......... 6/15/2004
County, SC is in the
Charlotte-Gastonia-
Rock Hill, NC-SC
nonattainment area.
Chester County......... Unclassifiable/ 6/15/2004
Attainment.
Lancaster County....... Unclassifiable/ 6/15/2004
Attainment.
Union County........... Unclassifiable/ 6/15/2004
Attainment.
SC...................... Pee Dee--C Florence Florence County........ Unclassifiable/ 6/15/2004
area. Attainment.
Chesterfield County.... Unclassifiable/ 6/15/2004
Attainment.
Darlington County...... Unclassifiable/ 6/15/2004
Attainment.
Dillon County.......... Unclassifiable/ 6/15/2004
Attainment.
Marion County.......... Unclassifiable/ 6/15/2004
Attainment.
Marlboro County........ Unclassifiable/ 6/15/2004
Attainment.
SC...................... Waccamaw--D Myrtle Williamsburg County.... Unclassifiable/ 6/15/2004
Beach area. Attainment.
Georgetown County...... Unclassifiable/ 6/15/2004
Attainment.
Horry County........... Unclassifiable/ 6/15/2004
Attainment.
SC...................... Santee Lynches--E Clarendon County....... Unclassifiable/ 6/15/2004
Sumter area. Attainment.
Lee County............. Unclassifiable/ 6/15/2004
Attainment.
Sumter County.......... Unclassifiable/ 6/15/2004
Attainment.
Kershaw County......... Unclassifiable/ 6/15/2004
Attainment.
SC...................... Berkeley-Charleston- Dorchester County...... Unclassifiable/ 6/15/2004
Dorchester--F Attainment.
Charleston-North
Charleston area.
Berkeley County........ Unclassifiable/ 6/15/2004
Attainment.
Charleston County...... Unclassifiable/ 6/15/2004
Attainment.
SC...................... Low Country--G Beaufort Beaufort County........ Unclassifiable/ 6/15/2004
area. Attainment.
Colleton County........ Unclassifiable/ 6/15/2004
Attainment.
Hampton County......... Unclassifiable/ 6/15/2004
Attainment.
Jasper County.......... Unclassifiable/ 6/15/2004
Attainment.
SC/GA................... Lower Savannah-Augusta Aiken County, SC....... Unclassifiable/ 6/15/2004
part of Augusta-Aiken, Attainment.
GA-SC area.
Orangeburg County, SC.. Unclassifiable/ 6/15/2004
Attainment.
Barnwell County, SC.... Unclassifiable/ 6/15/2004
Attainment.
Calhoun County, SC..... Unclassifiable/ 6/15/2004
Attainment.
Allendale County, SC... Unclassifiable/ 6/15/2004
Attainment.
Bamberg County, SC..... Unclassifiable/ 6/15/2004
Attainment.
Richmond County, GA.... Unclassifiable/ 6/15/2004
Attainment.
Columbia County, GA.... Unclassifiable/ 6/15/2004
Attainment.
SC...................... Central Midlands--I Richland County (part). Nonattainment-deferred. 9/30/2005
Columbia area.
Lexington County (part) Nonattainment-deferred. 9/30/2005
Newberry County........ Unclassifiable/ 6/15/2004
Attainment.
Fairfield County....... Unclassifiable/ 6/15/2004
Attainment.
SC...................... Upper Savannah Abbeville County....... Unclassifiable/ 6/15/2004
Abbeville-Greenwood Attainment.
area.
Edgefield County....... Unclassifiable/ 6/15/2004
Attainment.
Laurens County......... Unclassifiable/ 6/15/2004
Attainment.
Saluda County.......... Unclassifiable/ 6/15/2004
Attainment.
Greenwood County....... Unclassifiable/ 6/15/2004
Attainment.
TN/GA................... Chattanooga Hamilton County, TN.... Nonattainment.......... 6/15/2004
(Chattanooga, TN-GA)
County, TN.
Meigs County, TN....... Nonattainment.......... 6/15/2004
Marion County, TN...... Unclassifiable/ 6/15/2004
Attainment.
Walker County, GA...... Unclassifiable/ 6/15/2004
Attainment.
Catoosa County, GA..... Nonattainment.......... 6/15/2004
TN...................... Knoxville (Knoxville, Knox County............ Nonattainment.......... 6/15/2004
TN).
Anderson County........ Nonattainment.......... 6/15/2004
Union County........... Unclassifiable/ 6/15/2004
Attainment.
Loudon County.......... Nonattainment.......... 6/15/2004
Blount County.......... Nonattainment.......... 6/15/2004
Sevier County.......... Nonattainment.......... 6/15/2004
Jefferson County....... Nonattainment.......... 6/15/2004
TN...................... Nashville (Nashville, Davidson County........ Nonattainment-deferred. 9/30/2005
TN).
Rutherford County...... Nonattainment-deferred. 9/30/2005
Williamson County...... Nonattainment-deferred. 9/30/2005
Wilson County.......... Nonattainment-deferred. 9/30/2005
Sumner County.......... Nonattainment-deferred. 9/30/2005
Robertson County....... Attainment............. 6/15/2004
Cheatham County........ Attainment............. 6/15/2004
Dickson County......... Attainment............. 6/15/2004
TN/AR/MS................ Memphis, (Memphis, TN- Shelby County, TN...... Nonattainment.......... 6/15/2004
AR-MS).
Tipton County, TN...... Unclassifiable/ 6/15/2004
Attainment.
Fayette County, TN..... Unclassifiable/ 6/15/2004
Attainment.
[[Page 23868]]
DeSoto County, MS...... Unclassifiable/ 6/15/2004
Attainment.
Crittenden County, AR.. Nonattainment.......... 6/15/2004
TN...................... Haywood County adjacent Haywood County......... Unclassifiable/ 6/15/2004
to Memphis & Jackson Attainment.
areas.
TN...................... Putnam County central Putnam County.......... Unclassifiable/ 6/15/2004
TN, between Nashville Attainment.
and Knoxville.
TN...................... Johnson City-Kingsport- Sullivan Co, TN........ Nonattainment-deferred. 9/30/2005
Bristol Area (TN
portion only).
Hawkins County, TN..... Nonattainment-deferred. 9/30/2005
Washington Co, TN...... Unclassifiable/ 6/15/2004
Attainment.
Unicoi County, TN...... Unclassifiable/ 6/15/2004
Attainment.
Carter County, TN...... Unclassifiable/ 6/15/2004
Attainment.
Johnson County, TN..... Unclassifiable/ 6/15/2004
Attainment.
-------------------------
EPA Region 6
----------------------------------------------------------------------------------------------------------------
TX...................... Austin/San Marcos...... Travis County.......... Unclassifiable/ 6/15/2004
Attainment.
Williamson County...... Unclassifiable/ 6/15/2004
Attainment.
Hays County............ Unclassifiable/ 6/15/2004
Attainment.
Bastrop County......... Unclassifiable/ 6/15/2004
Attainment.
Caldwell County........ Unclassifiable/ 6/15/2004
Attainment.
TX...................... Northeast Texas Gregg County........... Unclassifiable/ 6/15/2004
Longview-Marshall- Attainment.
Tyler area.
Harrison County........ Unclassifiable/ 6/15/2004
Attainment.
Rusk County............ Unclassifiable/ 6/15/2004
Attainment.
Smith County........... Unclassifiable/ 6/15/2004
Attainment.
Upshur County.......... Unclassifiable/ 6/15/2004
Attainment.
TX...................... San Antonio............ Bexar County........... Nonattainment-deferred. 9/30/2005
Wilson County.......... Unclassifiable/ 6/15/2004
Attainment.
Comal County........... Nonattainment-deferred. 9/30/2005
Guadalupe County....... Nonattainment-deferred. 9/30/2005
OK...................... Oklahoma City.......... Canadian County........ Unclassifiable/ 6/15/2004
Attainment.
Cleveland County....... Unclassifiable/ 6/15/2004
Attainment.
Logan County........... Unclassifiable/ 6/15/2004
Attainment.
McClain County......... Unclassifiable/ 6/15/2004
Attainment.
Oklahoma County........ Unclassifiable/ 6/15/2004
Attainment.
Pottawatomie Co........ Unclassifiable/ 6/15/2004
Attainment.
OK...................... Tulsa.................. Tulsa County........... Unclassifiable/ 6/15/2004
Attainment.
Creek County........... Unclassifiable/ 6/15/2004
Attainment.
Osage County........... Unclassifiable/ 6/15/2004
Attainment.
Rogers County.......... Unclassifiable/ 6/15/2004
Attainment.
Wagoner County......... Unclassifiable/ 6/15/2004
Attainment.
LA...................... Shreveport-Bossier City Bossier Parish......... Unclassifiable/ 6/15/2004
Attainment.
Caddo Parish........... Unclassifiable/ 6/15/2004
Attainment.
Webster Parish......... Unclassifiable/ 6/15/2004
Attainment.
NM...................... San Juan County San Juan County........ Unclassifiable/ 6/15/2004
Farmington area. Attainment.
-------------------------
EPA Region 8
----------------------------------------------------------------------------------------------------------------
CO...................... (Denver-Boulder-Greeley- Denver County.......... Nonattainment-deferred. 9/30/2005
Ft. Collins-Love, CO).
Boulder County Nonattainment-deferred. 9/30/2005
(includes part of
Rocky Mtn National
Park).
Jefferson County....... Nonattainment-deferred. 9/30/2005
Douglas County......... Nonattainment-referred. 9/30/2005
Broomfield............. Nonattainment-deferred. 9/30/2005
Adams County........... Nonattainment-deferred. 9/30/2005
Arapahoe County........ Nonattainment-deferred. 9/30/2005
Larimer County (part).. Nonattainment-deferred. 9/30/2005
Weld County (part)..... Nonattainment-deferred. 9/30/2005
----------------------------------------------------------------------------------------------------------------
\1\ Henderson and Transylvania Counties opted out of the Mountain Area of Western NC compact and are no longer
participating.
\2\ The part of York County, SC that includes the portion within the Metropolitan Planning Organization (MPO) is
designated nonattainment and is part of the Charlotte-Gastonia-Rock Hill, NC-SC nonattainment area, effective
June 15, 2004. The remaining part of York County, SC is designated unclassifiable/attainment.
Note: Ozone designations for EAC counties are either
``Unclassifiable/Attainment'' (effective June 15, 2004);
``Nonattainment'' (effective June 15, 2004, if EAC area fails to
meet the March 31, 2004 milestone); or ``Nonattainment'' (effective
date deferred until September 30, 2005). Name of designated 8-hour
ozone nonattainment area is in parentheses.
C. What Is Today's Final Action for Compact Areas?
Today, we are issuing the first of three deferrals of the effective
date of the nonattainment designation for any
[[Page 23869]]
compact area that does not meet the 8-hour ozone NAAQS and would
otherwise be designated nonattainment, but has met all compact
milestones through the March 31, 2004 submission.\11\ We are deferring
until September 30, 2005, the effective date of the 8-hour ozone
nonattainment designation for these compact area counties which are
listed in 40 CFR part 81 (included at the end of this document).
---------------------------------------------------------------------------
\11\ In a few instances, some of the counties participating in
EACs were determined not to be part of the nonattainment area and
were designated attainment. In such cases, the effective date of the
attainment designation is not deferred.
---------------------------------------------------------------------------
As described earlier in this notice, we analyzed information
provided by the States to determine whether a county should be included
as part of a designated nonattainment area. This information included
such factors as population density, traffic congestion, meteorological
conditions, and pollution transport. We analyzed the factors for each
county participating in an EAC to determine whether a county should be
included in the nonattainment area. Therefore, some portions of compact
areas are designated unclassifiable/attainment and some are designated
nonattainment.
The EAC areas that EPA is designating in today's rule as attainment
for the 8-hour ozone NAAQS have agreed to continue participating in
their compacts and meet their obligations on a voluntary basis.
However, two of the five counties in the compact for the Mountain Area
of Western North Carolina have decided to withdraw because the area is
monitoring attainment. The remaining three counties are continuing to
participate in the agreement.
D. What Is EPA's Schedule for Taking Further Action To Continue To
Defer the Effective Date of Nonattainment Designation for Compact
Areas?
As discussed in the proposed rule, prior to the time the first
deferral expires, we intend to take further action to propose and, as
appropriate, promulgate a second deferred effective date of the
nonattainment designation for those areas that continue to fulfill all
compact obligations. Prior to the time the second deferral expires, we
would propose and, as appropriate, promulgate a third deferral for
those areas that continue to meet all compact milestones. Before the
third deferral expires shortly after December 31, 2007, we intend to
determine whether the compact areas have attained the 8-hour ozone
NAAQS and have met all compact milestones. By April 2008, we will issue
our determination. If the area has not attained the standard, the
nonattainment designation will take effect. If it has attained the
standard, EPA will issue an attainment designation for the area. Any
compact area that has not attained the NAAQS and has an effective
nonattainment designation will be subject to full planning requirements
of title I, part D of the CAA, and the area will be required to submit
a revised attainment demonstration SIP within 1 year of the effective
date of the designation.
E. What Action Will EPA Take if a Compact Area Does Not Meet a
Milestone?
As described in the December 16, 2003 proposed rule (68 FR 70111),
the compact program was based on a number of principles as described in
the EAC protocol.\12\ One of these principles is to provide safeguards
to return areas to traditional SIP requirements for nonattainment areas
should an area fail to comply with the terms of the compact. For
example, if a compact area with a deferred effective date fails to meet
one of the milestones, we would take steps immediately to remove the
deferred effective date of its nonattainment designation.
---------------------------------------------------------------------------
\12\ ``Protocol for Early Action Compacts Designed to Achieve
and Maintain the 8-hour Ozone Standard'', Texas Commission on
Environmental Quality (TCEQ), March 2002 (Protocol). The EPA
endorsed the Protocol in a letter dated June 19, 2002, from Gregg
Cooke, Administrator, EPA Region VI, to Robert Huston, TCEQ. The
Prtocol was revised December 11, 2002 based on comments from EPA.
---------------------------------------------------------------------------
Today, we are promulgating regulatory text, which specifies the
milestones that EAC areas are required to complete to be eligible for
the deferred effective date, as well as certain actions that the
Administrator will take when EAC areas either comply, or do not comply,
with the terms of the compact.
F. What Comments Did EPA Receive on the December 16, 2003 Proposal and
on the June 2, 2003 Proposed Implementation Rule Specific to Compacts?
We received a number of comments on the proposed rule for compact
areas. We have responded to the significant comments in this section.
Our responses address various aspects of the compact program: (1) Legal
concerns; (2) the designations process for EAC areas, including the
anticipated schedule for removal of the deferred effective date of the
nonattainment designation for any compact area that fails to meet a
milestone; (3) concerns about the compact process; (4) transportation/
fuels-related comments; and (5) need for regulatory language. Other
compact-related comments not addressed in this document are included in
the RTC document, which is located in the docket for this rulemaking
(OAR-2003-0090) and on EPA's technical Web site for early action
compacts at: http://www.epa.gov/ttn/naaqs/ozone/eac/#RMNotices.
In addition, we received a number of EAC-related comments on the
June 2, 2003 proposal for implementing the 8-hour ozone standard. We
have addressed these comments in the same EAC RTC document, which may
be found at the location noted above.
1. Support for and Opposition to Early Action Compacts
Comment: Many commenters expressed support for the compact process,
the goal of clean air sooner, the incentives and flexibility the
program provides for encouraging early reductions of ozone-forming
pollution, and the deferred effective date of nonattainment
designation. However, a number of commenters opposed the EAC program.
Several of these commenters expressed concern about the legality of the
program and primarily about the deferral of the effective date of the
nonattainment designation for these areas. Although all of these
commenters were supportive of the goal of addressing proactively the
public health concerns associated with ozone pollution, the commenters
state that the EAC program is not authorized by the CAA. All of these
commenters indicated that EPA lacks authority under the CAA to defer
the effective date of a nonattainment designation. In addition, these
commenters state that EPA lacks authority to enter into EACs areas and
lacks authority to allow areas to be relieved of obligations under
title I, part D of the CAA while these areas are violating the 8-hour
ozone standard or are designated nonattainment for that standard.
Response: We continue to believe that the compact program, as
designed, gives local areas the flexibility to develop their own
approach to meeting the 8-hour ozone standard, provided the
participating communities are serious in their commitment to control
emissions from local sources earlier than the CAA would otherwise
require. By involving diverse stakeholders, including representatives
from industry, local and State governments, and local environmental and
citizens' groups, a number of communities are discussing for the first
time the need for regional cooperation in solving air quality problems
that affect the health and
[[Page 23870]]
welfare of its citizens. People living in these areas that realize
reductions in pollution levels sooner will enjoy the health benefits of
cleaner air sooner than might otherwise occur. In today's rule we are
codifying the specific requirements in part 81 of the CFR to clarify
what is required of compact areas to be eligible for deferral of the
effective date of their nonattainment designation and what actions EPA
intends to take in response to areas that meet the milestones and areas
that do not meet the milestones.
As discussed earlier in this notice, EPA and nine environmental
organizations entered into a Consent Decree on March 13, 2003, which
requires EPA to issue the designations by April 15, 2004. Related to
that agreement, we have been discussing with these parties the actions
that compact areas have committed to take to implement measures on an
accelerated schedule to attain the 8-hour ozone standard by December
31, 2007. On April 5, 2004, these environmental organizations and EPA
entered into a joint stipulation to modify the deadline in the consent
decree. The parties agreed to extend the deadline for the effective
date of designations with respect to each area which EPA determines
meets the requirements of the Protocol and EPA guidance.
Comment: One commenter expressed concern about the health impact
and the effect on air quality of delaying the effectiveness of
nonattainment.
Response: The compact areas that are violating the standard are
designated nonattainment (with deferred effective date), which means
EPA is acknowledging the air quality problem of the area and the health
impact on the community. However, these areas are committed to early
reductions and early implementation of control measures that make sense
for the local area. The Agency believes this proactive approach
involving multiple, diverse stakeholders is beneficial to the citizens
of the area by raising awareness of the need to adopt and implement
measures that will reduce emissions and improve air quality.
2. Designations Process for Compact Areas
Comment: Several commenters expressed concern about EPA's process
for designating areas that are participating in a compact. In addition,
a number of commenters also were confused about the following statement
in the June 2, 2003 proposed 8-hour implementation rule: ``States are
advised that if EPA determines that any portion of a compact area
should become part of an 8-hour ozone nonattainment area, that portion
would no longer be eligible for participation in the Early Action
Compact, and the effective date of the nonattainment designation would
not be deferred'' (68 FR 32860, June 2, 2003). Some of these commenters
noted that the language, as written, could be interpreted to mean if
any EAC area becomes designated as nonattainment for the 8-hour ozone
standard, the EAC is no longer valid. A number of commenters submitted
recommendations to EPA for either including or excluding certain
participating EAC counties from the designated area.
Response: In determining the boundary for the designated area, we
applied the same procedure as we did for areas that are not
participating in an EAC, as described elsewhere in this document. The
commenters are referring to language in section VIII.A.3 of the June 2,
2003 proposed rule for implementing the 8-hour ozone standard at 68 FR
32860. At the time we entered into compact agreements with the local
communities by December 2002, and at the time we proposed the 8-hour
implementation rule, we had not made a decision as to which
participating counties would be included in a nonattainment area.
Therefore, at that time we were not able to determine the appropriate
boundary for the area that would be eligible for a deferral of the
effective date of nonattainment designation. We agree with the
commenters that the preamble language in the proposed 8-hour
implementation rule is not clear. The language was intended to be
applied to a portion of a compact area that is adjacent to or part of
an area that is violating the 1-hour ozone standard (or otherwise did
not qualify for participation in a compact), and subsequently is
designated nonattainment for the 8-hour ozone standard.
An example is the Catawba EAC, which includes York County, SC, as
well as Chester, Lancaster and Union Counties, SC. York County, which
has one monitor that is attaining the 8-hour standard, is in the
Charlotte-Gastonia-Rock Hill MSA. We have examined all applicable air
quality-related factors in our guidance and concluded that part of the
county is contributing to a violation in the MSA. Based on our
analysis, therefore, we are designating this county as a partial county
nonattainment area, in the 8-hour ozone nonattainment area for
Charlotte-Gastonia-Rock Hill. As we noted earlier, nonattainment is
defined in the CAA as an area that is violating the NAAQS or is
contributing to a nearby area that is violating the NAAQS. York County
ranks high in population growth (25 percent) and the predicted growth
from 2000 to 2010 is 12 percent, approximately 20,000 additional
population. York County ranks second and third for VOC and
NOX emissions in the CMSA, and 94 percent of its population
of workers drives to work within the CMSA. York County may continue in
the Catawba compact along with the other three counties as a voluntary
participant; however, the nonattainment portion of York County is not
eligible for a deferred effective date. Moreover, because the other
counties in the Charlotte-Gastonia-Rock Hill nonattainment area are not
participating in the EAC process, the Charlotte area, which includes
York County, is not eligible for a deferred effective date. In no way
does EPA intend for the Catawba compact to be revoked. For EPA's
responses to comments regarding designation and boundary issues for
specific EAC areas, see the RTC document and the TSD for this
rulemaking.
Comment: A number of commenters recommended that EPA clarify
exactly when a compact area would be designated nonattainment if it
fails to meet a milestone.
Response: Today, we have determined that a number of compact areas
have met the March 31, 2004 milestone (plan of local measures);
therefore, the effective date of nonattainment designation for these
areas is deferred until September 30, 2005. In Table 3 we have listed
the air quality designations and the effective dates for all counties
participating in EACs. In addition, today, we have determined that some
compact areas have not met the March 31, 2004 milestone. A discussion
of our assessment of these local plans is provided elsewhere in this
document. We are designating these areas as nonattainment, which is
effective June 15, 2004.
In another section of this document, we are promulgating regulatory
text that clarifies the actions we would take in the event a compact
area does not meet subsequent milestones. We have summarized those
actions below.
If an EAC area fails to meet a milestone, in accordance with our
guidance, we intend to take action as soon as practicable to remove the
deferral, which would trigger the effective date of the nonattainment
designation. If a State fails to submit a SIP revision for a compact
area, consisting of the adopted local plan and the demonstration of
attainment by December 31, 2004, we intend to take
[[Page 23871]]
action as soon as practicable (e.g., January 2005) to remove the
deferral for that area, which would trigger the effective date of the
nonattainment designation and, thus, also the classification, rather
than letting the designation take effect automatically on September 30,
2005. The State would be required to submit a revised attainment
demonstration within 1 year of the effective date of the nonattainment
designation.
Assuming EPA takes rulemaking action to continue to defer the
effective date of the nonattainment designation for compact areas, if a
compact area fails the December 31, 2005 milestone (complete
implementation of local measures), we would take action as soon as
practicable (e.g., by March 31, 2006) to remove the deferral which
would trigger the effective date of their nonattainment designation
and, thus, also their classification, rather than letting the
designation take effect automatically at the next deferred date. The
State would be required to submit a revised attainment demonstration
within 1 year of the effective date of the nonattainment designation.
Similarly, for any area that does not meet the June 30, 2006
milestone (assessment of air quality improvement and emissions
reductions from implementation of measures), we would take action as
soon as practicable (e.g., by September 30, 2006) to remove the
deferral which would trigger the effective date of their nonattainment
designation and, thus, also their classification. If the area, based on
the most recent 3 years of quality-assured monitoring data, is not
attaining the 8-hour ozone standard by December 31, 2007, we would take
action by April 15, 2008, to remove the deferral which would trigger
the effective date of their nonattainment designation and, where
applicable, classification.
Comment: Some commenters strongly recommended that if the compact
measures fail to be implemented or fail to achieve targeted emissions
reductions, the compact area should immediately be designated as
nonattainment with a subpart 2 classification and be required to comply
with all applicable obligations within the original timeframe.
Response: In another section of this document, we are promulgating
regulatory text that clarifies the actions we intend to take in the
event a compact area does not meet subsequent milestones. Compact areas
are designated as nonattainment and the effective date of that
designation is deferred. The deferral for any areas that do not meet or
fail any milestone will be removed as soon as practicable which would
trigger the effective date of their nonattainment designation and,
thus, also the classification consistent with the final 8-hour
implementation rule. If called for by the area's classification, these
areas will be required to submit a revised attainment demonstration
within 1 year of the effective date of designation and will be subject
to all applicable requirements of title I, part D of the CAA, to be
implemented within a time frame consistent with the area's
classification.
Comment: One commenter believes the second rolling deferred
effective date is not necessary and should be eliminated. According to
the commenter, there should be only two separate deferral dates
promulgated for nonattainment designations for areas where controls
would be implemented by September 30, 2005, and no other milestones
(the June 2006 progress assessment) would be needed between
implementation of controls and attainment.
Response: The June 2006 milestone, which is one of the compact
requirements that would be subject to the second deferred effective
date (December 31, 2006), provides that States report progress of EAC
areas in implementing adopted measures and assess improvements in air
quality and reductions in NOX and VOC emissions. The second
deferral is a checkpoint that is needed to ensure that areas are making
progress toward attainment. This milestone can be one of the progress
reports, but it is considered a milestone because EPA believes it is
important to have a checkpoint between implementation of measures by
December 2005 and attainment in December 2007.
Comment: A number of commenters were concerned about EPA's
statement in the proposal that the Agency would commit to not
redesignate areas that subsequently violate the 8-hour ozone NAAQS to
nonattainment, provided the area continues to meet all compact
milestones and requirements.
Response: In the proposed rule at FR 68 70113, EPA did state its
intention to commit to not redesignate EAC areas to nonattainment that
are designated attainment in April 2004. We realize that our shorthand
phrasing did not properly convey our intent. To clarify, in deciding
whether to redesignate an EAC area to nonattainment, EPA will consider
the factors in section 107(d)(3)(a) of the CAA. If an EAC area
continues to meet its compact milestones, EPA believes those factors
should weigh in favor of not redesignating the area to nonattainment
immediately, but rather waiting to see if the programs the area puts in
place will bring it back into attainment.
3. Transportation/Fuels-Related Comments
Comment: The EPA received a number of comments expressing concern
that lack of transportation conformity in EAC areas will negatively
impact air quality in these areas. In addition, several commented that
since EAC areas are not eligible to receive Congestion Mitigation and
Air Quality Improvement Program (CMAQ) funding, projects to reduce
congestion and, thereby, reduce mobile source emissions, would not
occur. Another commenter suggested that EPA work with the U.S.
Department of Transportation (DOT) to revise the TEA-21 so that EAC
areas are eligible to receive CMAQ funding.
Response: The commenters are correct that EAC areas violating the
8-hour ozone standard, which would otherwise have a nonattainment date
effective June 1, 2004, will not be subject to transportation or
general conformity requirements for the 8-hour standard in 2005. The
EAC protocol does not require EAC areas to meet CAA transportation
conformity requirements, since, as noted, these requirements apply one
year after the 8-hour nonattainment designation becomes effective.
However, continuing to defer 8-hour conformity requirements is
contingent upon the area's ability to demonstrate adherence to the
compact. Consistent with 40 CFR 93.102(d) and CAA section 176(c)(6),
conformity for the 8-hour ozone standard will not apply, provided the
area meets all of the terms and milestones of its compact between 2004
and 2007. At any point, if a milestone is missed, the nonattainment
designation becomes effective and conformity for the 8-hour standard
will be required one year after the effective date of EPA's
nonattainment designation.
The EAC areas that are maintenance areas for the 1-hour standard
will be subject to conformity until 1 year after the effective date of
designation of the 8-hour standard. At that time the 1-hour standard
will be revoked. Thus, for an EAC area that meets all of its milestones
and whose deferral is lifted in April 2008, the 8-hour attainment
designation would become effective in April 2008, and the 1-hour
standard would be revoked 1 year later or, April 2009. For an EAC area
that is also a 1-hour maintenance area under Sec. 175A, the area would
be subject to both its 1-hour maintenance plan and 1-hour
[[Page 23872]]
transportation conformity until April 2009.
Finally, EPA would like to clarify that transportation conformity
is not a control measure similar to voluntary control programs funded
through CMAQ dollars. Rather, it establishes a process for state and
local governments to consider the broader emissions impacts of planned
highway and transit activities to ensure that Federal funding and
approval goes to those transportation activities that are consistent
with air quality goals.
Comment: One commenter stated that they were reluctant to enter
into a compact agreement knowing that they would not receive CMAQ
funds. Several commenters also suggested that EPA provide EAC areas
with tangible financial incentives to proactively improve their air
quality, as well as work with the DOT to revise the Transportation
Efficiency Act (TEA) so that it allows EAC areas to receive CMAQ
funding.
Response: The commenters are correct that EAC areas are not
eligible to receive CMAQ funding under current law. The CMAQ
apportionment formula in TEA-21 contains no provisions to allow
inclusion of EAC areas into the formula and thus into the authorized
CMAQ levels for each state. Thus, until and unless the 8-hour ozone
nonattainment designation is effective, areas cannot be eligible for
CMAQ funding, absent a change in the law.
The primary incentive for many areas entering into an EAC is
deferral of a nonattainment designation and major requirements, such as
transportation conformity and NSR. It is true that compact areas are
subject to SIP requirements, but not to other such major requirements.
The EPA's interpretation is that Congress intended to link the
obligations that come with a nonattainment designation to CMAQ funding.
The purpose of the CMAQ program is to help those areas burdened with
the significant obligations of the CAA attain the NAAQS as
expeditiously as possible. Under the current CMAQ program, an EAC area
would not be able to receive CMAQ funds because it would not be
designated as a nonattainment or maintenance area.
Since TEA-21 has not been reauthorized as of this writing, EPA
cannot postulate on whether it will contain a new provision allowing
compact areas to receive CMAQ funding. The reauthorization bills passed
by the Senate and House contain no such provision.
Comment: A number of EAC areas are considering the addition of
cetane additives to fuel for increased fuel efficiency. Several
commenters expressed concern about the focus on diesel cetane. They
have expressed these concerns in detail in earlier correspondence with
both the Agency and the Ozone Transport Commission.
Response: Clean fuel programs have been an integral part of the
nation's strategy to reduce smog-forming emissions and other harmful
pollutants, including air toxics from our nation's air. For example,
the Federal reformulated gasoline program (RFG) and lower volatility
fuels have been cost effective and have provided significant and
immediate reductions in air pollution levels throughout the nation.
The CAA also allows States, under specified circumstances, to
design and implement their own clean fuel programs. Several EAC areas
are considering such programs including cetane improvement programs.
Cetane improvement programs have the potential to contribute emission
reductions needed for progress toward attainment and maintenance of the
NAAQS. (See EPA Technical Report entitled, ``The Effect of Cetane
Number Increase Due to Additives on NOX Emissions from
Heavy-Duty Highway Engines'', EPA-420-R-03-002, February 2003. This
document can be downloaded from: http://www.epa.gov/otaq/models/analysis.htm.
The EPA is now in the process of developing guidance to
help States properly quantify the benefits of cetane improvement
programs for their areas.
In selecting possible clean fuel programs and other potential ozone
control measures, states will engage in a careful and extensive
process. It is during this process that States should properly consider
and evaluate their air quality needs, the air quality benefits of
specific measures, costs, ease of implementation, enforceability and
other issues and factors like those the commenter raises with respect
to cetane programs. In addition, the States must involve the public in
the selection of control measures, through hearings and opportunities
to comment.
4. Regulatory Text
Comment: Several commenters strongly recommended that EPA include
regulatory text in the final rule. One commenter, in particular,
suggested that EPA do the following:
1. Codify the rolling deferred effective date so that it is
enforceable and that areas are held accountable if they miss a
milestone;
2. include in the final rule all deadlines and milestones specified
in our EAC guidance;
3. codify the September 30, 2005 deadline for EPA action to
approve/disapprove SIP submittals;
4. codify the December 31, 2008 deadline for States to submit a
revised attainment demonstration SIP for EAC areas that fail to attain
by December 31, 2007.
Response: Based on the recommendations of several commenters, we
have added regulatory text to the final rule. This language codifies
the EAC program into part 81 of the CFR. In addition, the regulatory
text clarifies what is required of compact areas and the consequences
to these areas if they do not meet a milestone.
X. How Do Designations Affect Indian Country?
All counties, partial counties or Air Quality Control Regions
listed in the table at the end of this document are designated as
indicated, and include Indian country geographically located within
such areas, except as otherwise indicated.
As mentioned earlier in this document, EPA's guidance for
determining nonattainment area boundaries presumes that the larger of
the 1-hour nonattainment area, CMSA or MSA with a violating monitor
forms the bounds of the nonattainment area but that the size of the
area can be larger or smaller depending on contribution to the
violation from nearby areas and other air quality-related technical
factors. In general, and consistent with relevant air quality
information, EPA intends to include Indian country encompassed within
these areas as within the boundaries of the area for designation
purposes to best protect public health and welfare. The EPA anticipates
that in most cases relevant air quality information will indicate that
areas of Indian country located within CMSAs or MSAs should have the
same designation as the surrounding area. However, based on the factors
outlined in our guidance, there may be instances where a different
designation is appropriate.
A state recommendation for a designation of an area that surrounds
Indian country does not dictate the designation for Indian county.
However, the conditions that support a State's designation
recommendation, such as air quality data and the location of sources,
may indicate the likelihood that similar conditions exist for the
Indian county located in that area. States generally have neither the
responsibility nor the authority for planning and regulatory activities
under the CAA in Indian country.
[[Page 23873]]
XI. Statutory and Executive Order Reviews
Upon promulgation of a new or revised NAAQS, the CAA requires EPA
to designate areas as attaining or not attaining that NAAQS. The CAA
then specifies requirements for areas based on whether such areas are
attaining or not attaining the NAAQS. In this final rule, we assign
designations to areas as required. We also indicate the classifications
that apply as a matter of law for areas designated nonattainment. This
rule also provides flexibility for areas that have entered into a
compact and take early action to achieve emissions reductions necessary
to attain the 8-hour ozone standard. This action defers the effective
date of the nonattainment designation for these areas and establishes
regulations governing future actions with respect to these areas.
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and, therefore, subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or Tribal governments or
communities;
(2) create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive Order 12866, it has been
determined that this rule is not a ``significant regulatory action''
because none of the above factors applies. As such, this final rule was
not formally submitted to OMB for review.
B. Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.
This rule responds to the requirement to promulgate air quality
designations after promulgation of a NAAQS. This requirement is
prescribed in the CAA section 107 of Title 1. The present final rule
does not establish any new information collection burden apart from
that required by law. Burden means the total time, effort, or financial
resources expended by persons to generate, maintain, retain, or
disclose or provide information to or for a Federal agency. This
includes the time needed to review instructions; develop, acquire,
install, and utilize technology and systems for the purposes of
collecting, validating, and verifying information, processing and
maintaining information, and disclosing and providing information;
adjust the existing ways to comply with any previously applicable
instructions and requirements; train personnel to be able to respond to
a collection of information; search data sources; complete and review
the collection of information; and transmit or otherwise disclose the
information. An agency may not conduct or sponsor, and a person is not
required to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations in 40 CFR are listed in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an agency
to prepare a regulatory flexibility analysis of any rule subject to
notice and comment rulemaking requirements under the Administrative
Procedures Act or any other statute unless the agency certifies the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's final rule on
small entities, small entity is defined as: (1) A small business that
is a small industrial entity as defined in the U.S. Small Business
Administration (SBA) size standards. (See 13 CFR 121.); (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
The portion of this rule designating areas for the 8-hour ozone
NAAQS indicating the classification for each subpart 2 area designated
nonattainment, is not subject to the RFA because it was not subject to
notice and comment rulemaking requirements. See CAA section
107(d)(2)(B). This rule also defers the effective date of the
nonattainment designation for areas that implement control measures and
achieve emissions reductions earlier than otherwise required by the CAA
in order to attain the 8-hour ozone NAAQS. The deferral of the
effective date will not impose any requirements on small entities.
States and local areas that have entered into compacts with EPA have
the flexibility to decide which sources to regulate in their
communities.
After considering the economic impacts of today's final rule on
small entities, I certify that this rule will not have a significant
economic impact on a substantial number of small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and Tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and Tribal governments, in
the aggregate, or to the privat