[Federal Register Volume 61, Number 241 (Friday, December 13, 1996)]
[Proposed Rules]
[Pages 65752-65762]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-30898]
[[Page 65751]]
_______________________________________________________________________
Part IV
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 51
Interim Implementation Policy on New or Revised Ozone and Particulate
Matter (PM) National Ambient Air Quality Standards (NAAQS); Proposed
Rule
Federal Register / Vol. 61, No. 241 / Friday, December 13, 1996 /
Proposed Rules
[[Page 65752]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 51
[FRL-5659-3]
RIN 2060-AF34
Interim Implementation Policy on New or Revised Ozone and
Particulate Matter (PM) National Ambient Air Quality Standards (NAAQS)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice of Proposed Policy (NPP).
-----------------------------------------------------------------------
SUMMARY: This document is to propose a policy regarding interim
implementation requirements for ozone and PM air pollution control
during the time period following promulgation of new or revised NAAQS.
Elsewhere in today's Federal Register, EPA is proposing these NAAQS.
The policy as proposed is intended to ensure momentum is maintained by
the States in the current program while moving toward developing their
plans for implementing the new NAAQS. An explanation and structure of
the Federal Advisory Committee Act (FACA) Subcommittee for Ozone, PM
and Regional Haze Implementation Programs (Subcommittee) is provided
under SUPPLEMENTARY INFORMATION.
DATES: Written comments on this proposal must be received by February
18, 1997.
ADDRESSES: Comments. Comments on this proposal should be submitted (in
duplicate if possible) to the Air and Radiation Docket and Information
Center, 401 M Street, SW, Washington, DC 20460, Attention Docket Number
A-95-38. Docket. The public docket for this action is available for
public inspection and copying between 8:00 a.m. and 5:30 p.m., Monday
through Friday, at the Air and Radiation Docket and Information Center
(6102), Attention Docket A-95-38, South Conference Center, Room 4, 401
M Street, SW, Washington, DC 20460. A reasonable fee for copying may be
charged.
FOR FURTHER INFORMATION CONTACT: For general FACA Subcommittee
questions and comments, contact Ms. Denise Gerth, U.S. EPA, MD-15,
Research Triangle Park, NC 27711, telephone (919) 541-5550. For
specific questions and comments on the NPP, contact Ms. Sharon
Reinders, U.S. EPA, MD-15, Research Triangle Park, NC 27711, telephone
(919) 541-5284.
SUPPLEMENTARY INFORMATION: The following communications and outreach
mechanisms have been established:
Overview information--A World Wide Web (WWW) site has been
developed for overview information on the NAAQS and the ozone, PM, and
regional haze (RH) FACA process. The Uniform Resource Location (URL)
for the home page of the web site is http://www.epa.gov/oar/faca/.
Detailed and technical information--Available on the O3/PM/RH
Bulletin Board on the Office of Air Quality Planning and Standards
(OAQPS) Technology Transfer Network (TTN), which is a collection of
electronic bulletin board systems operated by OAQPS containing
information about a wide variety of air pollution topics. The O3/PM/RH
Bulletin Board contains separate areas for each of the FACA
Subcommittee's five work groups and includes meeting materials, issue
papers, as well as general areas with information about the process,
participants, etc. The TTN can be accessed by any of the following
three methods:
--By modem: the dial-in number is (919) 541-5742. Communications
software should be set with the following parameters: 8 Data Bits, No
Parity, 1 Stop Bit (8-N-1) 14,400 bps (or less).
--Full Duplex.
--ANSI or VT-100 Terminal Emulation.
The TTN is available on the WWW site at the following URL: http://
ttnwww.rtpnc.epa.gov/html/ozpmrh/facahome.htm. The TTN can also be
accessed on the Internet using File Transfer Protocol (FTP); the FTP
address is ttnftp.rtpnc.epa.gov. The TTN Helpline is (919) 541-5384.
Table of Contents
Purpose and Objectives
A. FACA Subcommittee
B. Basis for the Interim Implementation Policy
C. Interim Policy
1. Effective Dates
2. Designations, Redesignations and Classifications
a. Ozone
b. PM-10
3. Program Requirements
a. Progress Requirements for Serious and above Ozone Areas
b. Attainment Demonstrations
(1) Ozone
(2) PM-10
c. July 1996 Findings Issued by EPA--Ozone
d. New Requirements for Marginal and Moderate Areas--Ozone
e. Planning and Control Requirements--PM-10
f. Substitutions
(1) Ozone
(2) PM-10
g. OTR, OTC, PAMS
h. Conformity
i. New Source Review
Purpose and Objectives
This notice proposes an interim implementation policy associated
with the potential revision of the ozone and PM NAAQS. The interim
implementation policy is the guidance that EPA will use to continue to
implement the ozone and PM-10 nonattainment programs. The ozone and PM
NAAQS are proposed elsewhere in today's Federal Register. The EPA
intends to propose a regional haze program in mid-1997. Although EPA is
undertaking a notice and comment process regarding the interim
implementation policy, the interim implementation policy would
nevertheless be a policy to be implemented through subsequent
rulemaking actions, e.g., findings or other actions regarding SIP
submittals from the States. Thus, the interim implementation policy
would represent EPA's preliminary views on these issues and, while it
may include various statements that States must take certain actions,
these statements are made pursuant to EPA's preliminary
interpretations, and thus do not bind the States and public as a matter
of law. Only after EPA has made its interpretations final through
rulemaking will they be binding on the States and public as a matter of
law. Such rulemaking will follow the requirements of the Administrative
Procedure Act, 5 U.S.C. section 553(b) and (c), and in some cases may
rely on the ``good cause'' exception in 5 U.S.C. section 553(b)(B).
In advance of these actions, the EPA published an advance notice of
proposed rulemaking (ANPR) entitled, ``National Ambient Air Quality
Standards for Ozone and Particulate Matter,'' on June 12, 1996 (61 FR
29719) which announced the EPA's plans to propose decisions on whether
to retain or revise the ozone and PM NAAQS. That ANPR also described
the FACA Subcommittee process established under the Clean Air Act
Advisory Committee (CAAAC) to provide advice and recommendations to the
EPA on developing new, integrated approaches for implementing potential
revised NAAQS for ozone and PM, as well as a new regional haze
reduction program. The Subcommittee is composed of representatives from
State, local and tribal organizations, environmental groups, industry
and trade groups (including small business representatives),
consultants, academic/
[[Page 65753]]
scientific communities, and Federal agencies. The organization of the
Subcommittee includes a Coordination Group and four work groups: (1)
Base Programs Analyses and Policies Work Group, (2) National and
Regional Strategies Work Group, (3) Science and Technical Support Work
Group, and (4) Communications and Outreach Work Group. Through this
process, EPA is engaging in communications with segments of society
that may be affected by the implementation of NAAQS and the regional
haze program.
Elsewhere in today's Federal Register, the EPA is also publishing
an ANPR entitled, ``Implementation of New or Revised Ozone and
Particulate Matter (PM) National Ambient Air Quality Standards (NAAQS)
and Regional Haze Regulations,'' which outlines policy and technical
implementation issues and principles, and questions for issues
associated with the potential revision of the ozone and PM NAAQS and
the development of a regional haze program.
These notices are intended to invite stakeholders to participate in
the implementation development process, to assure that their concerns
will be addressed and their options assessed, and, ultimately, to
increase the effectiveness of the NAAQS implementation strategies and
regional haze reduction program that is established.
A. FACA Subcommittee Recommendations
The Subcommittee has provided advice and recommendations for
consideration by CAAAC on implementation of specific programs covering
the transition time period after new or revised NAAQS are promulgated.
The EPA is taking the advice and recommendations that the Subcommittee
recommended for consideration by the CAAAC into consideration in this
proposal. Where the Subcommittee reached broad agreement in their
recommendations, EPA is accepting the recommendations. In other
situations where the Subcommittee may not have reached broad agreement,
EPA is modifying the recommendations. Where no specific recommendations
were made, EPA is following the general philosophy that is invoked by
the other recommendations. The recommendations and advice of the FACA
Subcommittee provide the foundation of today's proposal.
The EPA solicits comment on each element contained in this proposal
and seeks additional suggestions on approaches to increase flexibility
during the interim period to improve both air quality and pollution
reduction strategies with a change in the NAAQS. Consistent with long-
standing EPA policy, States have the ability to propose case-by-case
modifications to their plans which could make equivalent or improved
environmental progress. The EPA will review and rulemake on these
through the normal SIP revision process. Consistent with this, EPA
solicits comment on whether, and how, to allow flexibility to control
programs during the timeframe of the IIP to allow additional
substitutions and/or modifications to existing control programs.
Additionally, EPA seeks comment on the relevant criteria, such as air
quality impact, emission reductions, risk and population exposure,
cost-effectiveness, and transport impacts, it should employ during the
evaluation of such SIP revisions. The reader is directed to the interim
policy portion of this notice for further details.
Recognizing the merit of market-based solutions to pollution
control, in 1994, EPA issued the economic incentive program (EIP) rule,
which provides rules and guidance for establishing economic incentive
programs. The EIP remains available to be used in coordination with
this policy as part of the States' plans to reduce pollution and
achieve the new NAAQS.
B. Basis for the Interim Implementation Policy
The EPA interprets the relevant portions of the Clean Air Act (Act)
to provide that the general planning requirements of part A of title I
and the basic nonattainment planning requirements of subpart 1 of part
D of title I govern the implementation of a new or revised NAAQS. The
detailed provisions of subparts 2 and 4 of part D that currently apply
to ozone and PM-10 (particles with an aerodynamic diameter less than or
equal to a nominal 10 micrometers) nonattainment planning would not
apply directly to the implementation of a new ozone NAAQS or a new fine
particle NAAQS, but would continue to apply during the interim period
after promulgation of a new or revised NAAQS to the extent they are
retained under a no-backsliding principle and to the extent they are
needed to comply with the general obligations of subpart 1. The
provisions of subpart 4, however, would apply to the implementation of
a new or revised PM-10 NAAQS. Furthermore, with regard to a no-
backsliding principle, section 110(l) provides that EPA may not approve
revisions to SIP's that interfere with requirements to attain or make
reasonable further progress (RFP) or with any other applicable
requirements of the Act.
The basis for the view that the specific requirements of subparts 2
and 4 do not apply directly in the case of the implementation of a new
or revised ozone NAAQS, or in the implementation of a fine particle
NAAQS, lies in the language and structure of those subparts, which are
clearly and explicitly tied to the 1-hour ozone NAAQS in existence at
the time of the enactment of the 1990 Amendments to the Act in the case
of subpart 2, and to a PM-10 NAAQS in the case of subpart 4. The
provisions of subpart 1, however, apply to the implementation of any
NAAQS, including revisions to NAAQS in effect at the time of the 1990
Amendments. For example, the current ozone classification scheme of
subpart 2, which forms the basis for the control requirements and
attainment dates for nonattainment areas, is explicitly linked with the
1-hour NAAQS while section 172(a)(1) explicitly authorizes that EPA may
establish a new classification system with respect to a revision of a
NAAQS. Subpart 4 expressly applies only to PM-10. Thus, as subparts 2
and 4 are limited in direct applicability to the 1-hour ozone NAAQS and
PM-10 NAAQS respectively, only subpart 1 directly applies to
implementation of new or revised ozone NAAQS or a fine particle NAAQS
in nonattainment areas. Because the provisions of subpart 4 are not
linked to a specific PM-10 NAAQS (in contrast to subpart 2's linkage to
one specific ozone NAAQS), the provisions of subpart 4 would apply to
the implementation of a revised PM-10 NAAQS.
Of critical importance, however, is that subpart 1, in addition to
the general obligations of section 172(c), includes a no-backsliding
principle operative in the event of revisions to a NAAQS. Section
172(e) of the Act clearly provides that a no-backsliding principle
should apply upon a relaxation of an existing NAAQS. It provides that
EPA is to conduct a rulemaking within 12 months of the promulgation of
a relaxed NAAQS to promulgate requirements applicable to areas not
attaining the existing standard that will provide for controls which
are not less stringent than the controls applicable to areas designated
nonattainment before such relaxation.
The EPA believes that a no-backsliding principle is even more
important and by implication was intended by the Act to be a governing
principle when an existing NAAQS is strengthened, as is the case with
ozone. However, the Act does not expressly
[[Page 65754]]
address how to implement the no-backsliding principle before the new
NAAQS is implemented through the SIP program. Therefore, in order to
provide greater assurance that the currently existing and required
control measures will continue to be implemented until the
implementation program for the new ozone NAAQS actually begins, which
will probably not occur for several years, EPA is proposing (in the
NAAQS proposal published elsewhere in today's Federal Register) that
the effective date of the revocation of the existing ozone NAAQS (the
1-hour standard) be deferred until EPA determines that an area has a
SIP that provides for the achievement of the new NAAQS. This deferral
of the effective date would be on a case-by-case basis, e.g., once an
attainment demonstration for the new ozone NAAQS is approved for a
particular nonattainment area or EPA determines that a SIP for an
attainment area meets the requirements of section 110(a)(1), the
existing 1-hour ozone standard NAAQS would no longer be in effect as to
that area. This will provide greater assurance that the air quality
benefits of the existing ozone NAAQS implementation program, which EPA
believes are necessary to attain and maintain the potential new or
revised ozone NAAQS, will be retained, than would reliance solely on a
no-backsliding principle implemented administratively through the
general provisions of subpart 1 of part D of the Act.
The purposes for which EPA is not deferring the effective date of
the revocation of the existing ozone NAAQS are those for which EPA
believes it is not necessary or desirable to retain the existing NAAQS
as part of a transition from the old to the new ozone NAAQS. These
exceptions are twofold: (1) The requirement to demonstrate attainment
of the existing NAAQS by the attainment dates set forth in subpart 2 of
part D, and (2) the provisions regarding the reclassification of areas
upon a failure to attain the current ozone standard by the applicable
attainment dates in subpart 2. The EPA believes it is appropriate to
exempt the first requirement from the general deferral of the effective
date of the revocation of the existing NAAQS since its focus is on
demonstrating attainment of the existing NAAQS as of a certain date--
which will be superseded by a new requirement to attain the new NAAQS
by new dates. The EPA believes it is appropriate for areas to shift
their efforts to develop attainment demonstrations from the existing
NAAQS to the new NAAQS. With respect to the second requirement, EPA
believes that while areas should have to continue with the
implementation of the control measure programs required as of the date
a new NAAQS is promulgated, they need not have to comply with the
additional specified control measures that they would have been subject
to had they been reclassified in accordance with the provisions of
subpart 2. As described below, EPA is relying on an independent basis
for requiring these areas to achieve the same rate of progress in terms
of emission reductions that they would have had to achieve after a
reclassification under subpart 2. For the reasons described therein,
EPA believes these areas should have greater flexibility in adopting
and implementing new control measures to achieve the same progress than
if they were simply subject to the reclassification provisions of
subpart 2.
Also, based in part on the Subcommittee's deliberations and
recommendations, the EPA believes that rather than expending
significant effort during this interim period to evaluate whether to
retain or eliminate the various existing and required control measures
in light of the potential new or revised NAAQS, States and stakeholders
should focus their planning efforts on moving forward to attain the new
NAAQS rather than reevaluating prior planning decisions.
C. Interim Policy
1. Effective Dates
The interim policy that EPA is proposing in this notice is intended
to take effect on the date of the NAAQS promulgation and remain as to
each area until the effective date of EPA approval of the SIP revision
for achievement of the new NAAQS. The EPA believes that approval rather
than submission of a SIP is appropriate because submission of a new SIP
alone provides neither sufficient assurance to allow the requirements
in the currently EPA-approved SIP to be changed nor a sufficient legal
basis for revising, amending or deleting requirements in a SIP that had
been previously approved by EPA. The EPA notes that SIP's are approved
through rulemaking action by EPA and thereby become Federal rules that
are incorporated in the CFR. In order to revise such Federal rules,
through a revision to a SIP, further EPA rulemaking action must be
taken. Thus, EPA is proposing that the effective dates for the interim
policy are from the date of NAAQS promulgation to the effective date of
EPA approval of the new SIP for each area to achieve the new NAAQS. The
length of time this policy remains in effect could be several years and
depends on the time necessary for States to develop new SIP's and be
approved by EPA.
This interim policy is not intended to apply to new attainment
demonstrations and SIP submissions made to implement a new NAAQS which
occurs after areas have undergone designations under section 107(d)(1)
with respect to a new NAAQS. Further policy, guidance, and/or rules
will be developed following further deliberations of the FACA that will
apply to such submissions.
2. Designations, Redesignations and Classifications
In section 107(d)(1)(B)(iv), the Act provides that existing ozone
and PM-10 designations remain in effect until areas are redesignated
pursuant to section 107(d)(3). By analogy, EPA believes it is
reasonable for such designations to remain in effect after promulgation
of new NAAQS until new designations are undertaken after promulgation
of the new NAAQS. In addition, in the case where the current ozone
NAAQS would remain in effect, the designations would remain in effect
so long as the current 1-hour ozone NAAQS remains in effect. No similar
provision exists for classifications, however. Nevertheless, as
classifications are linked with the control requirements applicable to
the nonattainment areas, they should continue to have force inasmuch as
they determine the control requirements applicable for purposes of
applying the no-backsliding principle. In particular for ozone, because
the existing NAAQS would remain in effect, the classifications remain
in effect as well. Since classifications continue, control measures
required for a specific classification in policy or guidance continue
to apply.
a. Ozone
The EPA is proposing that ozone nonattainment areas with clean air
quality data at the time of promulgation of the new or revised ozone
NAAQS may be redesignated to attainment provided they satisfy the
criteria of section 107(d)(3)(E) including having a fully-approved SIP,
meeting all applicable requirements and an approved maintenance plan.
Any redesignation action taken on areas currently designated attainment
or nonattainment does not preclude EPA from taking future action with
respect to these areas in the new round of designations that will
address the new or revised NAAQS.
The following two scenarios would apply to existing ozone
nonattainment
[[Page 65755]]
areas that wish to redesignate to attainment:
(1) Requests Submitted and EPA Approved Prior to Promulgation
Complete redesignation requests and maintenance plans for ozone
nonattainment areas submitted prior to the promulgation date of the new
or revised ozone NAAQS will be allowed to redesignate to attainment
prior to promulgation of the new or revised ozone NAAQS upon approval
of the maintenance plan provided that all available air quality data
show attainment of the current 1-hour NAAQS. Therefore, any requests
submitted prior to promulgation of the new NAAQS, which are not finally
approved by EPA, will be processed according to scenario 2 below.
(2) Requests Submitted and EPA Approved on or After Promulgation
Ozone redesignation requests and maintenance plans submitted on or
after promulgation of the new or revised NAAQS will be evaluated in
accordance with section 107(d)(3)(E). In this case, maintenance plans
must demonstrate attainment and maintenance of the 1-hour NAAQS and the
new or revised NAAQS.
The EPA also recommends that previously redesignated ozone
nonattainment areas review their maintenance plans to determine if
their contingency provisions need to be modified to reflect the
promulgation of a new or revised NAAQS.
b. PM-10
The EPA is proposing that PM-10 nonattainment areas with clean air
quality data at the time of promulgation of the new and/or revised PM
standards be allowed to redesignate to attainment if they satisfy the
criteria of section 107(d)(3)(E) including having a fully-approved SIP,
meeting all applicable requirements, and a maintenance plan. Thus, in
the event that the 24-hour PM-10 standard is revised, existing
nonattainment areas could redesignate to attainment if they otherwise
satisfy the criteria of section 107(d)(3)(E) and submit a maintenance
plan which demonstrates attainment with a SIP-approved design value
which is equivalent to or below the revised PM-10 24-hour standard. If
the area has already submitted a redesignation request, it need not
withdraw and revise it unless the existing redesignation request and
maintenance plan do not demonstrate that the SIP-approved design value
will be below the revised PM-10 24-hour standard. In such a case, they
should resubmit a revised redesignation request and maintenance plan
that shows attainment and maintenance of the revised PM-10 standard.
In the event the PM-10 24-hour standard is eliminated, current
nonattainment areas with clean air quality data at the time of
promulgation would still be eligible to redesignate to attainment
pending a submittal of a fully-approvable SIP demonstrating attainment
of the PM-10 annual standard and the submittal of the maintenance plan
under section 175A as required in section 107(d)(3)(E).
A nonattainment classification for PM-10 remains in effect until
States can assess the impact of a revised PM-10 standard. In the case
of PM-10, reclassification to serious is based on the inability of the
area to practicably attain the 24-hour and/or annual PM-10 NAAQS within
the timeframes prescribed by the Act. Consistent with the no-
backsliding principle, those areas which failed to attain the PM-10
NAAQS in 1994 should have been reclassified as serious PM-10 areas.
Since the deadline by which to reclassify to serious was before the
June 1997 NAAQS promulgation, the requirements for serious areas would
still apply. Areas with attainment dates occurring during the interim
period will not be reclassified during the interim period.
3. Program Requirements
a. Progress Requirements for Serious and Above Ozone Areas
The EPA believes that the current ROP requirements should continue
until EPA has approved the new SIP for the new NAAQS. Section
182(c)(2)(B) provides specifically that ozone nonattainment areas
classified as serious and higher under the current NAAQS must submit a
SIP (post-1996 ROP plan) which provides for actual VOC or NOX
emissions reductions of at least 3 percent per year averaged over each
consecutive 3-year period beginning November 15, 1996 until the area's
attainment date. The due date for this SIP was November 15, 1994 under
the Act, but was extended to the end of 1995 in the ``Ozone Attainment
Demonstrations,'' memorandum from Mary D. Nichols to Regional
Administrators, March 2, 1995 (March 2, 1995 policy statement).
For ten States and the District of Columbia, EPA, by rulemaking
published July 10, 1996 (61 FR 36292), made findings of failure to
submit for (1) the first 9 percent of the post-1996 ROP plan and (2)
for those States with severe ozone nonattainment areas, the commitment
to adopt the additional post-1999 ROP control measures. This is
discussed more fully below under July 1996 Findings Issued by EPA.
For ozone nonattainment areas classified as severe and higher, EPA
believes that the post-1996 ROP plan should still include emissions
reductions after 1999 in the event the new SIP's to attain the new
NAAQS are delayed. Therefore, EPA is proposing to continue the
requirement for an average of 3 percent per year ROP post-1999 until
SIP's to attain the new NAAQS are approved by EPA. Although this
represents a modification of the current requirement to provide for 3
percent-per-year ROP until the applicable attainment dates, EPA
believes this is reasonable in light of a new NAAQS and the shift to
planning for attainment of that NAAQS.
As mentioned above, the commitment to adopt the additional post-
1999 ROP rules for the severe areas was due at the end of 1995, and EPA
has made findings appropriately. However, the rules for the completion
of the post-1999 ROP should be identified with the second SIP
submittal, as described in the March 2, 1995 policy statement. That
submittal is described below under Attainment Demonstration.
The March 2, 1995 policy statement indicates that States may phase-
in adoption of the rules to provide for implementation of measures for
post-1999 ROP beginning in the period immediately following 1999. Thus,
these rules should be submitted to EPA no later than the end of 1999.
The EPA believes these requirements will facilitate reasonable progress
in the interim period.
Areas with ROP plans approved by EPA, such as certain areas in
California, should continue to implement the ROP requirements of their
SIP's.
For international border areas, EPA may continue to approve a SIP
that establishes that the implementation of the plan would be adequate
to attain and maintain the relevant NAAQS but for emissions emanating
from outside the United States. Under these circumstances, States would
be allowed to defer the adoption of a post-1996 ROP plan.
b. Attainment Demonstrations
(1) Ozone
Serious and Higher Classified Areas
Ozone attainment demonstration SIP's for serious and higher
classified areas were due November 15, 1994. The EPA recognized that
many of these serious and above ozone nonattainment areas were unable
to complete SIP
[[Page 65756]]
requirements within schedules prescribed in the Act due to
circumstances beyond their control. Of special concern was the
influence of regional transport of ozone and its precursors on urban
areas' ability to demonstrate attainment.
Through the March 2, 1995 policy statement, EPA provided States
with a two-phased SIP submittal process which would allow additional
time for States to perform an assessment of regional transport and its
impact on urban areas. Areas that have adopted certain specified
control measures and made appropriate commitments to interstate
activities to study and address ozone transport are currently allowed
until mid-1997 to submit full demonstration-of-attainment SIP's which
take into account regional measures in nonattainment and attainment
areas recommended by the interstate study to assess ozone transport.
The EPA believes that after promulgation of a new or revised ozone
NAAQS, States should no longer be required to provide full
demonstration-of-attainment SIP's for the 1-hour NAAQS; however, States
are obliged to continue attainment planning toward the new NAAQS. The
EPA believes that the full development of SIP's to attain the current
1-hour NAAQS is not a critical component of the transition from the
current NAAQS to the new NAAQS, and that it would be advantageous for
States to continue to achieve the required ROP while shifting their
planning efforts toward satisfying the requirement to demonstrate
attainment of the new ozone NAAQS.
Accordingly, the EPA proposes the following program elements
related to attainment demonstrations: (1) That regional control
measures identified (as discussed below) to reduce regional transport
and support urban attainment planning and demonstrations be adopted and
implemented in accordance with current programs; (2) that States submit
the urban modeling analysis to establish the NOX and VOC percent
reductions but not the specific measures necessary to attain the 1-hour
NAAQS by the attainment dates set forth in subpart 2; and (3) that
within 90 days of promulgation of a revised NAAQS, States submit to EPA
an early assessment of attaining the revised NAAQS by estimating the
NOX and VOC percent reductions needed to attain the revised NAAQS
by those dates. This is discussed further below under Methods. States
would not at this time be required to adopt and submit to EPA specific
control measures to attain the new or revised ozone NAAQS. The first
two elements described above, currently under way, will be useful to
lay the groundwork for assembling attainment demonstrations for the new
NAAQS. In the future, the EPA will prescribe new requirements for
modeling demonstrations and SIP's to address the new or revised NAAQS.
Methods
The EPA believes that 90 days is a reasonable period of time for
the early assessment. The early assessment should utilize information
that is or will be generated through the current requirement for
States' SIP attainment demonstration analyses. No new modeling runs are
required for the early assessment beyond what is currently required for
attainment demonstrations. Using the modeling results from the early
assessment, States are expected to review the results to determine the
effectiveness of the NOX and VOC measures identified towards
attaining the revised NAAQS. From this review, States are expected to
estimate the levels of emission reductions needed to attain the revised
NAAQS.
It is expected that the early assessment will require processing of
existing modeling results. Two methods are being proposed. The first
method results in a set of NOX and VOC reductions needed to attain
the revised NAAQS. For this method, it is assumed that States have
performed a series of NOX and VOC reduction runs and are able to
generate an ozone response curve. The modeling required to produce the
percent reductions to attain the 1-hour standard may be used to
calculate predicted values (at each grid cell) for the revised
standard. These values may then be used to quantitatively estimate the
VOC and NOX percent reductions necessary to attain the revised
standard. This is typically done through the use of ozone response
curves which show predicted changes in ozone as a result of changes in
VOC and NOX emissions in the inventory.
The second method results in an analysis of the effectiveness of a
specific NOX/VOC strategy toward attaining the revised NAAQS. Some
areas may elect to model a specific strategy rather than a matrix of
NOX and VOC reductions to demonstrate attainment of the current
NAAQS. For example, a State may elect to demonstrate attainment by
modeling the impact of the regional control measures along with a local
strategy (i.e., 9 percent ROP). In this case, the series of NOX
and VOC reduction runs are not needed to demonstrate attainment of the
current NAAQS. For the second method, modeling results from the final
attainment strategy run may be used to calculate the predicted values
(at each grid cell) for the revised standard. These values may be used
to produce the number of grid-cell-hours above the standard, display
the spacial extent of daily maximum values above the revised standard,
and determine the peak value predicted. This information may then be
used to estimate the NOX and VOC reductions needed to attain the
revised NAAQS.
The early assessment will give States/local agencies and EPA an
appreciation for the magnitude of possible additional controls needed
to attain the revised standard. State/local agencies and EPA could use
this information to begin preparations for development of a revised SIP
to attain the new NAAQS.
It is EPA's intention that States that fail to submit the 90-day
preliminary estimate be subject to a finding for failure to submit a
required SIP element, which could subject the State to sanctions.
The EPA believes that regional control measures being identified in
the current program to reduce regional transport and support attainment
planning are critical to attainment of the current NAAQS and the new or
revised NAAQS. These regional control measures are intended to reduce
levels of ozone and its precursors over a larger geographic area rather
than a single nonattainment area. Thus, these measures are applicable
in rural areas or attainment areas and could also include measures
needed in urban and nonattainment areas. The EPA reaffirms the
importance of regional measures during the interim period. The EPA
expects that these measures will promote progress toward attainment of
the new NAAQS and, therefore, should be implemented. The EPA intends to
work with all affected States to ensure that the required reductions
are achieved. The EPA will address this issue more specifically in
future guidance or rulemaking.
(2) PM-10
All moderate and serious area PM-10 attainment demonstration SIPs
should have been submitted prior to the June 1997 promulgation of the
revised PM-10 NAAQS. While the majority of the nonattainment areas have
satisfied this requirement, there are still quite a few areas that have
not. Consistent with the no-backsliding principle, EPA believes that
areas that failed to submit an attainment demonstration during the
1991-1997 timeframe should still be required to satisfy relevant PM-10
requirements. Thus, specifically for PM-10, EPA is requiring the
attainment demonstration, not for the purpose of
[[Page 65757]]
meeting the attainment demonstration requirement per se, but instead
only for purposes of defining the appropriate level of RACM or BACM so
that EPA can prevent RACM or BACM backsliding.
c. July 1996 Findings Issues by EPA--Ozone
By notice published July 10, 1996 (61 FR 36292), EPA issued three
findings (the ``July 10, 1996 Findings'') for nine nonattainment areas
in ten States and the District of Columbia (note that serious areas
only received the first and third findings). These were for failure to
submit: (1) A SIP provision for fully adopted rules requiring emissions
reductions of 9 percent in ozone precursors from the end of 1996 to
1999, (2) a SIP commitment to adopt any additional rules needed to
complete the requirements for ROP reductions after 1999 and until the
attainment date, and (3) a SIP commitment to adopt additional measures
needed for attainment of the 1-hour NAAQS.
The EPA interprets the July 10, 1996 findings as based not only on
the requirements of section 182(c)(2) (A)-(B), which apply specifically
to ozone nonattainment areas classified under the current NAAQS, but
also on the requirements of section 172(c) (1)-(2), which apply
generally to nonattainment areas. Specifically, the ``reasonable
further progress'' requirement in section 172(c)(2) continues to be
relevant.
Furthermore, EPA proposes to interpret the section 172(c)(2)
``reasonable further progress'' requirement as mandating VOC or
NOX reductions of 3 percent per year, averaged over a 3-year
period, for ozone nonattainment areas classified under the current
NAAQS that retain their nonattainment designation post-1996. The EPA
believes that the requirement for 3 percent-per-year ROP found in
section 182(c)(2)(B) indicates that the Act would have intended that
this amount of progress continue in ozone nonattainment areas with this
degree of air quality problem. Thus, the continuation of the ROP
requirement is grounded in both the retention of the 1-hour ozone NAAQS
(with the consequent effectiveness of section 182(c)(2)(B)) until SIP's
implementing the new NAAQS are approved and the requirements of section
172(c) (1) and (2), under which EPA would apply the ROP requirements
for anti-backsliding purposes.
Because the requirements of both section 182(c)(2)(B) related to
the first 9 percent of the post-1999 ROP plan, and the comparable
requirement of section 172(c)(2) continue to apply following
promulgation of a revised NAAQS, the first finding and associated
sanctions and Federal implementation plan (FIP) clocks continue to
apply. This finding concerns the first 9 percent of the post-1996 ROP
plan.
The EPA proposes to modify the second finding which requires severe
areas to submit a SIP commitment to adopt additional 3 percent average
annual reductions from the end of 1999 through the attainment date. The
EPA proposes to modify this finding to cover the obligation of the
affected States to commit to submit the reductions which are required
only from the end of 1999 until EPA approves the attainment SIP's
addressing the revised NAAQS.
The EPA proposes to retract the third finding which is for a SIP
commitment to adopt additional measures needed to attain the 1-hour
NAAQS. As described above, EPA proposes to take the position that the
requirement to demonstrate attainment of the 1-hour NAAQS no longer
applies in light of the need for States to focus on planning to attain
the new ozone NAAQS. The EPA proposes to replace the third finding with
a finding to require that States submit the 90-day preliminary estimate
described above. This estimate assists the State in developing both ROP
plans and attainment plans under the revised NAAQS.
Depending on its review of any comments to this interim
implementation policy including any comments from the CAAAC, EPA
intends to promulgate the above-described revisions to the July 10,
1996 findings and new findings in subsequent rulemakings. Because the
July 10, 1996 findings were made through rulemaking, modifications
would similarly need to be made through rulemaking.
Previously-issued findings pertaining to other required elements in
the ozone program are carried forward during the interim period.
d. New Requirements for Marginal and Moderate Areas--Ozone
The Act requires moderate ozone nonattainment areas to attain the
1-hour NAAQS by November 15, 1996. The EPA is proposing that States
with moderate and any remaining marginal nonattainment areas that do
not attain the 1-hour NAAQS by November 15, 1996, submit to EPA, within
18 months after promulgation of a new ozone NAAQS: (1) a plan to
achieve an emission reduction of 9 percent (3 percent-per-year average
ROP through 1999), or alternatively, an attainment demonstration for
the new NAAQS; as well as (2) the new source review (NSR) requirements
as discussed below under New Source Review. Further, the EPA is
proposing that all existing control measures that are in place,
including those measures needed for the current moderate classified
nonattainment areas to achieve 15 percent VOC ROP emission reductions
through 1996, remain in place. The EPA believes that these requirements
apply under section 172(c), paragraphs (1) (attainment demonstrations),
(2) (reasonable further progress), and (5) (NSR). The applicability of
paragraphs (1) and (2) of section 172(c) were discussed above. The EPA
proposes to interpret paragraph (5), concerning NSR, as applicable for
the same reasons.
The EPA believes that 18 months is a reasonable period of time for
the States to make the required submission because much of the work
required of the States should already have been completed under the
requirements of the provisions of section 182(b)-(c) applicable to
marginal and moderate nonattainment areas under the current NAAQS.
Moreover, this period is generally consistent with the amount of time
EPA allowed for submittal of new requirements when marginal areas were
bumped up to moderate areas under the current NAAQS (59 FR 38410 (July
28, 1994), 59 FR 50848 (October 6, 1994) proposed and final bump-up of
the Poughkeepsie, NY, marginal nonattainment area to moderate).
The EPA will conduct an early pre-designation determination within
90 days of promulgation of a new or revised ozone NAAQS using air
quality data to evaluate if these marginal and moderate nonattainment
areas are attaining the new NAAQS. The pre-designation determination
will not affect the new round of designations and classifications that
will occur after promulgation of new ozone NAAQS.
Two exceptions are discussed below:
(1) For areas not attaining the 1-hour NAAQS that are attaining the
new NAAQS, EPA is proposing to defer implementation of the 9 percent
ROP plans or the attainment demonstrations for the new NAAQS and the
NSR requirements of the higher classification described above. However,
the 9 percent ROP plan or attainment demonstration must still be
adopted, submitted, and approved by EPA. The deferment continues as
long as the area is showing attainment with the new NAAQS and until the
SIP for the new NAAQS is approved. This is because the deferral is
based on an early pre-designation determination and the SIP for the new
NAAQS may require an ROP plan.
(2) An exception may also be granted for areas meeting the
requirements for
[[Page 65758]]
an extension under the provisions of section 181(a)(5) of the Act.
Under that section, the Administrator may grant an extension of the
attainment date to areas that are not showing attainment if the area
has: (1) met the requirements of the applicable implementation plan,
and (2) has not recorded more than one exceedance of the ozone NAAQS in
the year preceding the extension year. The EPA is proposing that areas
failing to attain the ozone NAAQS by November 15, 1996 may be granted a
1-year extension.
e. Planning and Control Requirements--PM-10
As part of the no-backsliding principle, the EPA believes that if
the PM-10 24-hour NAAQS is revised that, the PM-10 requirements and
control programs required prior to the June 1997 promulgation date
remain in place. Under the current program, 70 areas were initially
designated as moderate nonattainment areas for PM-10. These areas were
required to submit SIP's in November 1991 that included RACM/RACT and
demonstrated attainment by December 31, 1994. Consistent with the no-
backsliding principle, these areas must retain those PM-10 measures
that have been adopted and/or implemented to address the annual and
current 24-hour standard until the State demonstrates attainment of the
PM-10 annual and revised 24-hour NAAQS. Also, PM-10 measures cannot be
dropped without a demonstration that they are not needed to attain the
fine particle NAAQS.
In the spring of 1995, EPA analyzed the air quality data and
determined which areas were attaining the PM-10 standard as of December
31, 1994. At that time EPA determined:
Out of the 43 areas with approved SIP's in place, 22 of
the moderate areas had 3 years of clean air quality data making them
eligible to redesignate to attainment pursuant to section 107(d)(3)(E).
Thirteen of the 43 areas with approved SIP's in place
qualified for a 1-year extension. These areas should be able to
demonstrate attainment of the current PM-10 standard with 3 years of
clean data prior to the June 1997 promulgation and should proceed with
redesignation requests pursuant to section 107(d)(3)(E).
Eight of the 43 areas with approved SIP's in place had
clean, but incomplete, air quality data. Additional data needed to be
collected before EPA could determine whether the areas were attaining
the standard. These areas are still required to correct any
deficiencies present in their moderate area SIP's before the SIP's can
be deemed fully approvable and before a request for redesignation to
attainment may be approved. The areas should also satisfy all remaining
requirements for redesignation to attainment pursuant to section
107(d)(3)(E) prior to the promulgation of the revised NAAQS.
Five of the initial moderate areas failed to attain by the
December 31, 1994 attainment date and did not qualify for attainment
extensions. Pursuant to section 188 of the Act, these areas should have
been reclassified to serious nonattainment areas for PM-10. The serious
area requirements for these areas included the development and
submission of a best available control measures/best available control
technology (BACM/BACT) and attainment demonstration SIP's showing
attainment by December 31, 2001, as well as more stringent NSR
requirements. Consistent with the no-backsliding principle, those areas
that failed to attain the NAAQS by the December 31, 1994 attainment
date and which also did not qualify for attainment date extensions
should be reclassified as serious and should proceed with their serious
area planning requirements during the interim period.
Five of the initial 70 moderate areas were reclassified to
serious nonattainment areas effective February 8, 1993. These areas
were required to develop and submit BACM SIP's by August 8, 1994 and
are required to submit attainment demonstrations by February 8, 1997
showing attainment of the PM-10 NAAQS by December 31, 2001. These areas
should continue implementing those measures adopted in their BACM
SIP's.
For those areas designated moderate nonattainment after the initial
designations, SIP submittals which included RACM/RACT and demonstrated
attainment by December 31, 2000 were required in 1995. These areas
should continue implementing the measures adopted in their SIP's. Those
areas which fail to attain the PM-10 NAAQS during the interim period
will not be reclassified to serious.
In the event the PM-10 24-hour NAAQS is eliminated, EPA is
proposing that PM-10 measures that do not affect fine particle
concentrations may be candidates for elimination upon demonstration
that removing the measure will not cause the PM-10 annual NAAQS to be
violated. The PM-10 measures that affect fine particle concentrations
must remain in place until the area can demonstrate that elimination of
those measures will not affect the ability to attain and maintain the
fine particle NAAQS. The EPA is also proposing that those nonattainment
areas that do not have a fully-approved SIP in place should submit a
plan which demonstrates attainment and maintenance of the annual PM-10
standard. No additional PM-10 measures will be required other than
those required under the no-backsliding principle during the interim
period. The EPA is also proposing that the requirement for retaining or
requiring additional PM-10 control measures could be reconsidered if
measures resulting in regional reductions are adopted during the
interim period. However, EPA would have to approve the regional
strategy and the State(s) or entity submitting the strategy must be
able to quantitatively demonstrate with available tools that the
regional reductions would be beneficial to reducing PM-10 (including
coarse fractions if applicable), as well as fine particle
concentrations.
f. Substitution of Credits for Emission Reductions
(1) Outside Nonattainment Areas--Ozone
The Subcommittee provided a specific recommendation that a
nonattainment area should be allowed to take credit for emissions
reductions from sources outside the nonattainment area for the post-
1996 and post-1999 3 percent per year ROP requirement so long as the
sources are no farther than 100 km (for VOC sources) or 200 km (for
NOX sources) away from the nonattainment area. The EPA believes
that this additional flexibility for States in their ROP SIP's is
consistent with the Act, since reductions from outside a nonattainment
area within these limits contribute to progress toward attainment
within the area. The 3 percent per year ROP requirement is a general
rate of progress requirement, not a requirement for specific programs
or measures such as vehicle inspection and maintenance. Allowing this
flexibility would continue to provide the same rate of progress in
terms of reducing emissions.
Therefore, EPA is proposing for the interim period that a
nonattainment area should be able to take credit for post-1996 and
post-1999 ROP emission reductions from sources outside the
nonattainment area within the geographic distances from the
nonattainment area mentioned above. For States with areas having
approved NOX waivers, EPA is proposing that substitutions of
NOX reductions outside of the nonattainment area for VOC
reductions within the attainment area would be allowed if accompanied
by a
[[Page 65759]]
technical justification at the time of submittal for replacing NOX
reductions with VOC reductions. Substitutions of NOX for VOC
within nonattainment areas with approved waivers will not be allowed.
The EPA is proposing, however, that the locality-based credit for
substitutions be restricted to the post-1996 and post-1999 3 percent-
per-year requirement. Thus, credit for substitutions to complete or
revise the 15 percent ROP requirement for VOC emission reductions in
nonattainment areas through 1996 would not be allowed. Further, States
would not be able to substitute for specific control measures such as
inspection/maintenance (I/M) or reasonably achievable control
technology (RACT) that are required in an area by the Act. In these
cases, the measures are either: (1) Specific, required measures for
which EPA does not believe it appropriate to allow substitution since
that could jeopardize the amount of reductions from such mandated
programs; or (2) measures that are or should have been in place prior
to promulgation of new ozone NAAQS. Further, States would not be able
to credit toward the 3 percent-per-year requirement reductions from
outside the nonattainment area attributable to other programs
prescribed by the Act when implemented outside nonattainment areas. An
example is credit for maximum achievable control technology standards
controlling hazardous air pollutants or the title IV of the Act
NOX requirements. (These are merely two illustrative examples of
such programs, not an inclusive list of all such programs.) Further,
the EPA is proposing that all existing control measures that are in
place remain in place. The EPA believes that substitutions should be
restricted to intrastate areas unless two or more States involved reach
agreement. Similarly, application of credits from substitutions should
be limited to only one nonattainment area unless two or more States
involved reach agreement on dividing the credit between them such that
the same emission reductions are not credited toward the progress
requirements for more than one area. Interstate substitutions, like
intrastate substitutions, must be enforceable by the States in which
the affected sources are located.
Credit toward the 3 percent-per-year requirement for regional
measures described above to reduce transport and support attainment
planning would be allowed if implemented in nonattainment areas. Such
credit would also be allowed if implemented outside the nonattainment
area but within the 100 and 200 km geographic limits to the extent the
reductions generating the credits are not otherwise due to a prescribed
requirement of the Act.
Emissions from the source or sources being substituted must be
included in the baseline ROP emissions. The other emissions from
source(s) outside the nonattainment area not involved in the
substitution would not have to be inventoried nor included in the SIP
or the baseline ROP emissions for purposes of the substitution. The EPA
is proposing that this provision is only in effect during the interim
transition period, and that the final implementation strategy will
address the principles applicable to substitutions in attainment
demonstrations for implementation of a new NAAQS.
(2) PM-10
The Notice of Proposed Rulemaking for the PM NAAQS lays out a
rationale for why PM-10 and fine particles should be treated as two
separate pollutants. In addition, the PM-10 standard (which will
primarily address coarse particle control) targets localized
nonattainment problems while the fine particle standard will address
the fine particle fraction including secondarily-formed particles and
will focus on the regional aspects and transport of fine particles.
Given the physical and chemical differences in PM-10 and fine particles
and the uncertainties about the localized and regional aspects of PM-10
and fine particles at this time, EPA is proposing that substitutions
for PM in and outside of the nonattainment area should not be allowed
during the interim period.
g. Ozone Transport Region (OTR), Ozone Transport Commission (OTC), and
the Photochemical Assessment Monitoring System (PAMS)
The OTR and the OTC and related regional control measures, as
defined in the Act, continue after promulgation of a new or revised
ozone NAAQS. The OTC is currently in the process of evaluating the
specific control requirements applicable to the OTR and expects to
develop and submit to EPA for consideration an interim implementation
program regarding those requirements. In the event such a submission is
made to EPA, EPA will evaluate the recommendations and consider whether
to modify the portion of this proposed interim implementation policy
that addresses the OTR regional control measures.
The PAMS is also carried forward upon promulgation of new or
revised ozone NAAQS.
h. Conformity
In general, existing part D SIP's will remain in force, and as a
result, motor vehicle emissions budgets and relevant requirements in
existing part D SIP's will continue to apply for transportation and
general conformity purposes until they are superseded by new or revised
part D SIP's.
Conformity determinations will not be required to address the new
NAAQS until SIP's addressing the new NAAQS are approved by EPA.
Conformity will not apply for fine particles or the new 8-hour ozone
NAAQS until SIP's are approved by EPA. The EPA believes this is
appropriate because section 176(c) of the Act requires conformity to an
implementation plan that has been approved or promulgated under section
110 and refers to conformity to an implementation plan's purpose of
reducing violations and attaining the NAAQS; without a SIP addressing
the NAAQS there is nothing to which to conform. Although the 1990
Amendments outlined interim conformity tests that EPA required before
SIP's were submitted, these Act provisions clearly did not envision the
case of new NAAQS, and the emission reduction requirements only applied
to ozone and carbon monoxide areas designated under the then existing
NAAQS. The test applied to these areas was to contribute to annual
emission reductions consistent with the requirements of sections 182
and 187; provisions which do not apply to areas in nonattainment for
fine particles or the new 8-hour ozone NAAQS. In addition, as a policy
matter, it is not reasonable to establish demonstration of reduction in
fine particle emission reductions as a criterion for determining
conformity before the SIP process has identified an emissions inventory
that could serve as a baseline.
Areas that have not submitted ROP plans or attainment
demonstrations for the old standard would be required to conform to the
15 percent plan until a ROP plan or new attainment demonstration is
submitted. Some areas that are nonattainment under the existing NAAQS
but are attaining the new NAAQS will be permitted to defer
implementation of the ROP plan as described above. In such cases,
conformity to the ROP plan would not be required, and these areas would
demonstrate conformity to the 15 percent plan. Areas that were not
required to submit a part D SIP or a 15 percent ROP plan by virtue of
their
[[Page 65760]]
classification (previous marginal areas) and have not been
demonstrating conformity to motor vehicle emissions budgets would be
required to continue demonstrating conformity using the emission
reduction tests until SIP's with motor vehicle emissions budgets are
submitted. Areas that have approved redesignation maintenance plans
should continue demonstrating conformity using the motor vehicle
emissions budgets and relevant requirements for general conformity in
the maintenance plans.
States are free to establish, through the SIP process, a motor
vehicle emissions budget that addresses the new or revised NAAQS in
advance of a complete SIP attainment demonstration. That is, a State
could submit a motor vehicle emissions budget that does not demonstrate
attainment but is consistent with projections and commitments to
control measures and achieves some progress toward attainment. Such a
budget would apply for conformity purposes in addition to existing
budgets addressing the old NAAQS (i.e., a SIP that does not demonstrate
attainment of the new NAAQS would not supersede existing part D SIP's).
Conformity requirements that are based on the classification system
for the former NAAQS, such as the modeling procedures and the
requirements for contents of transportation plans, continue to apply
after the new or revised NAAQS are promulgated until new SIP's are
approved.
i. New Source Review
In accordance with the current NSR requirements, proposed new and
modified stationary sources of air pollution must undergo a pollutant-
specific preconstruction review and obtain authority to construct prior
to beginning their construction activities. A primary purpose of the
NSR requirements is the protection of the NAAQS, including those for
ozone and PM. The applicable NSR requirements generally are based on
the attainment status of the area where the proposed source will locate
for each pollutant for which NAAQS exist and which the source will
emit.
In areas designated as attainment or unclassifiable, proposed new
or modified major stationary sources must be reviewed under the
requirements for prevention of significant deterioration (PSD) of air
quality pursuant to section 165 of part C of title I of the Act.1
The PSD requirements include: (1) A demonstration that the proposed
emissions increase will not cause or contribute to a violation of any
NAAQS or applicable PSD increment; (2) a determination, where
applicable, that the proposed emissions increase from the source will
not have an adverse impact on an air quality related value in a Class I
area; and (3) compliance with best available control technology.
---------------------------------------------------------------------------
\1\ The EPA has adopted PSD regulations pursuant to part C at 40
CFR 51.166 (minimum requirements for submittal and approval of a
State PSD program) and 40 CFR 52.21 (the Federal PSD program).
---------------------------------------------------------------------------
In nonattainment areas and ozone transport regions, new and
modified major sources having the potential to emit major amounts of
the nonattainment pollutant must meet the applicable NSR requirements
contained in part D of title I of the Act.2 The primary NSR
requirements for nonattainment areas, contained in section 173 of
subpart 1 of part D, require new or modified major stationary sources
of any nonattainment pollutant to meet the following requirements: (1)
Obtain offsetting emissions reductions (offsets) from existing sources;
(2) comply with the lowest achievable emission rate; (3) demonstrate
that all major stationary sources owned or operated by the permit
applicant are in compliance with all applicable emission limitations
and standards under the Act; and (4) submit an analysis of alternative
sites, sizes, production processes, and control techniques
demonstrating that the benefits of the proposed source outweigh the
environmental and social costs imposed as a result of its location,
construction, or modification.
---------------------------------------------------------------------------
\2\ The EPA's nonattainment NSR requirements are codified at 40
CFR 51.165(a). These existing regulations do not currently include
the various changes enacted by Congress under the Clean Air Act
Amendments of 1990. The EPA issued policy memos to describe how
certain statutory NSR provisions would apply while EPA's regulations
and State NSR programs were being revised to reflect the 1990
Amendments (March 11, 1991 and September 3, 1992 memoranda from John
S. Seitz, Director, OAQPS). To meet statutory deadlines, most States
have already completed the necessary update of their NSR programs.
The EPA proposed to amend its NSR regulations on July 23, 1996 as
part the NSR reform rulemaking (61 FR 38250-38344).
---------------------------------------------------------------------------
Additional NSR requirements specifically for ozone and PM
nonattainment areas are contained in subparts 2 and 4 of part D,
respectively. These subparts set forth criteria for establishing area
classifications and various NSR requirements based on those
classifications. Subpart 2 (Additional Provisions for Ozone
Nonattainment Areas) contains, among other things, provisions for
emissions offset ratios, major source thresholds, and source
modification requirements for major sources of VOC. Subpart 2 also
contains provisions concerning the treatment of NOx as an ozone
precursor in certain ozone nonattainment areas and ozone transport
regions. Subpart 4 (Additional Provisions for PM Nonattainment Areas)
contains, among other things, NSR requirements for PM-10, including a
70 tons per year (tpy) major source threshold for PM-10 sources in
serious nonattainment areas, and the applicability of PM-10 NSR control
requirements to major stationary sources of PM-10 precursors.
As described earlier in this document, the detailed provisions of
subparts 2 and 4 of part D of title I of the Act that currently apply
to existing ozone and PM-10 nonattainment areas would not apply
directly to the implementation of the proposed new or revised ozone
NAAQS or the proposed annual and 24-hour fine particle NAAQS, which EPA
is proposing elsewhere in today's Federal Register. However, as part of
EPA's proposed interim policy for transitioning from the current
program to implementation of potential new or revised ozone and PM
NAAQS, EPA is proposing to continue the implementation of the existing
NSR requirements with respect to ozone and PM under a policy of no
backsliding. In the case of ozone, this proposed position is further
supported by the fact that EPA is also proposing to defer the effective
date of the revocation of the existing 1-hour ozone NAAQS until such
time that EPA determines that an area has a SIP which provides for
achievement of the new NAAQS. This proposed interim implementation
policy discussed in more detail below, does not address potential new
PSD increments for any new or revised NAAQS because the Act provides
EPA with an additional 2 years from the date of NAAQS promulgation to
address such issues.
Numerous issues will need to be resolved as part of the development
of the final integrated implementation program to address new or
revised NAAQS for ozone and PM and a regional haze program (see ANPR
for Implementation of New or Revised Ozone and Particulate Matter (PM)
National Ambient Air Quality Standards (NAAQS) and Regional Haze
Regulations published elsewhere in today's Federal Register. Some of
these issues, particularly as they relate to fine particles, directly
affect the implementation of the NSR requirements. Of particular
concern is the lack of necessary analytical and technical tools and
guidance governing the preconstruction review of new and modified
stationary sources associated with fine particles. For example, the use
of dispersion models to predict air
[[Page 65761]]
quality impacts of new and modified sources is at the heart of the
required NAAQS compliance demonstration under the PSD program. Air
quality dispersion modeling for ambient fine particle concentrations is
in its infancy.
Another problem is that little information exists in emissions
inventories regarding PM size distribution and corresponding settling
velocities. Emissions factors for estimating the amount of fine
particles from new and modified sources are generally not available and
may take considerable time to develop and validate. The ability to
predict the amounts of fine particle emissions is complicated by the
emissions contribution made by precursors, including sulfates,
nitrates, and VOC.
In addition, ambient fine particle concentrations in many areas
experience a significant contribution from secondary fine particle
transformation and transport. The EPA is currently in the process of
developing a comprehensive modeling system which will account for
secondary fine particle formation and will also eventually incorporate
a method for nesting small local impacts from individual point sources
within a greater modeling domain. The ultimate success of this system
hinges upon the collection of sufficient monitoring data to verify
protocol modeling results.
Finally, while ambient monitoring methods for measuring fine
particles are to be proposed commensurate with the proposal of any new
NAAQS for PM, sufficient monitors are not expected to be available
immediately after promulgation of any new or revised NAAQS to satisfy
the requirement that new and modified sources collect ambient fine
particle data needed for individual PSD air quality analyses.
Consequently, in the absence of the necessary analytical and
technical tools, as well as a final implementation strategy for fine
particles, source owners and operators would have difficulty predicting
amounts of fine particles being emitted from their own proposed source
and from existing sources, and also would be unable to carry out a
comprehensive air quality analysis for fine particle emissions.3
The EPA believes that without the appropriate implementation tools and
policy, such new preconstruction review responsibilities clearly would
place an unreasonable burden on sources, as well as the permitting
authorities, in terms of their ability to satisfy the NSR requirements.
---------------------------------------------------------------------------
\3\ When EPA promulgated the NAAQS for PM-10, EPA also adopted,
as necessary, amendments to the PSD regulations to establish new
requirements applicable to that newly-regulated form of PM. Based on
such new requirements, each PSD application subject to EPA's part 52
PSD regulations, and not eligible to be grandfathered, was required
to address significant emissions increases of PM-10 as of the
effective date of the revised NAAQS for PM (52 FR 24672, July 1,
1987). The EPA adopted, for purposes of PM-10, a new significant
emissions rate, significant monitoring concentration, grandfathering
provisions and special monitoring provisions to enable applicants to
determine the applicability of any proposed PM-10 emissions to the
preconstruction review requirements.
---------------------------------------------------------------------------
The proposed interim policy for NSR will apply the principle of no
backsliding, as described earlier in this document, to provide interim
protection of any new or revised NAAQS after promulgation until EPA
amends its existing NSR requirements and approves SIP's based on those
amendments. The description of the proposed interim implementation
policy for NSR is divided into a general discussion of geographic
applicability for NSR, and separate discussions of how the existing NSR
requirements will be implemented for ozone and PM.
Interim Implementation Policy for Geographic Applicability of the
Existing NSR Requirements. The NSR requirements generally apply to new
or modified major stationary sources with respect to any particular
pollutant based on the attainment status of the area (relative to each
affected pollutant) in which a new or modified source will locate. As
described earlier in this document, EPA is proposing that the existing
PM-10 area designations and classifications remain in effect until new
designations are undertaken after promulgation of the new or revised
NAAQS and that the ozone designations and classifications remain in
effect for so long as the current 1-hour ozone NAAQS remains in effect.
Thus, for the interim period following promulgation of any new or
revised NAAQS for ozone and PM, EPA is also proposing that the existing
NSR requirements continue to apply to sources of VOC (and NOX,
where applicable) and PM-10 (and PM-10 precursors, where applicable) on
the basis of the attainment, unclassifiable, and nonattainment area
designations and classifications that exist at the time of promulgation
of any new or revised NAAQS for ozone and PM, respectively, except for
those possible circumstances where a redesignation based on an existing
ozone or PM NAAQS is approved by EPA subsequent to the promulgation of
new or revised NAAQS. In such cases, EPA is proposing that once such
redesignation is in effect, the area's attainment status based on the
EPA-approved redesignation will determine the applicability of the NSR
requirements for the affected pollutant during the interim period.
Interim Implementation Policy for Ozone NSR. During the interim
period following promulgation of any new or revised NAAQS for ozone,
EPA is proposing that permit applications for new and modified major
sources of VOC (or NOX, as applicable) which locate in an area
designated as nonattainment for the 1-hour ozone NAAQS, or in an ozone
transport region, must continue to satisfy the applicable nonattainment
NSR requirements under part D of title I of the Act. The specific
criteria which must be satisfied are to be based on the classification
of the particular ozone nonattainment area or ozone transport region,
except that for marginal and moderate nonattainment areas which do not
attain the existing 1-hour ozone NAAQS by November 15, 1996 and are not
attaining the new ozone NAAQS, EPA is proposing that the applicable NSR
requirements for VOC and NOX be determined by all of the statutory
NSR requirements for the next higher classification. That is, in ozone
nonattainment areas classified as marginal that failed to attain, the
major source threshold would remain unchanged at 100 tpy of VOC or
NOX, but the interim offset ratio would be at least 1.15:1 (the
offset ratio for moderate areas); and in moderate areas that fail to
attain, the major source threshold would be lowered to 50 tpy of VOC or
NOX (the threshold for serious areas), and the interim offset
ratio would be at least 1.2:1 (the offset ratio for serious areas).
Section 182(b) (6)-(8) of subpart 2 of part D also contains special
requirements for modifications to existing sources in serious (and
severe) ozone nonattainment areas which would also apply to moderate
nonattainment areas that do not attain by November 15, 1996 and are not
attaining the new ozone NAAQS. These requirements include a new de
minimis test involving a significance threshold based on aggregated
emission increases of greater than 25 tpy of VOC or NOX for
proposed modifications; requirements and optional procedures for major
modifications which emit, or have the potential to emit, less than 100
tpy or VOC or NOX; and requirements and optional procedures for
major modifications which emit, or have the potential to emit, 100 tpy
or more of VOC or NOX. Under a separate rulemaking, EPA has
proposed its
[[Page 65762]]
interpretation of these complex provisions.4
---------------------------------------------------------------------------
\4\ The EPA proposed its interpretation of the requirements
contained in section 182(c) (6), (7), and (8) of subpart 2 of part D
in the July 23, 1996 NSR reform proposed rulemaking (61 FR 38250,
38297-38302).
---------------------------------------------------------------------------
The NSR requirements under part D provide that emissions offsets
may be acquired from existing sources either within the affected ozone
nonattainment area or from another ozone nonattainment area with an
equal or higher classification than the affected nonattainment area. In
addition, when offsets from another nonattainment area (of equal or
higher classification) are proposed, it must be shown that emissions
from such nonattainment area contribute to a violation in the affected
nonattainment area. The EPA is proposing that for purposes of the
interim implementation policy, the term ``equal or higher
classification'' is to be based on the actual classifications of the
affected ozone nonattainment areas. For example, if the nonattainment
area where a new source proposes to locate is a moderate nonattainment
area that failed to attain by November 15, 1996 and, therefore,
continues to be treated as a moderate area although the NSR
requirements for serious areas apply under the interim policy, the
offsets may still be obtained under section 173(c) of the Act from
other ozone nonattainment areas classified as moderate or higher.
For areas designated as attainment or unclassifiable for the
existing 1-hour ozone NAAQS, EPA is proposing that permit applications
for major new and modified sources which would have a significant
increase in VOC emissions, must satisfy the applicable existing PSD
requirements. These requirements include compliance with the best
available control technology and the completion of the required air
quality analysis. In addition, there are no PSD increments for ozone.
Interim Implementation Policy for PM NSR. The EPA is also
proposing, as part of its interim implementation policy for NSR, that
the preconstruction review for PM will continue to involve only the
review of PM-10 emissions and their ambient impacts, while deferring a
specific review of potential fine particle emissions and their ambient
impacts. This policy would provide that the review of fine particle
emissions, including the applicant's demonstration of compliance with
the fine particle NAAQS, will not be required until EPA promulgates
amendments to the existing NSR requirements concerning any newly-
regulated form of PM under the integrated implementation program and
SIP's are revised accordingly and approved by EPA. The EPA cannot
reasonably amend its own regulations until it is technically able to
predict and measure emissions of fine particles generated by individual
sources and better understand and estimate the formation and dispersion
of ambient fine particle concentrations in the atmosphere.
For proposed new or modified sources of PM locating in areas
designated as nonattainment for PM-10, EPA is proposing that during the
interim period following promulgation of any new or revised PM NAAQS,
permit applicants must continue to satisfy the applicable State or
local nonattainment NSR requirements for PM-10 consistent with part D
(subparts 1 and 4) of title I of the Act. The part D nonattainment NSR
requirements apply to major new sources of PM-10 and modifications to
existing major sources of PM-10 that would have a significant net
emissions increase of PM-10, i.e., 15 tpy or more. The applicable major
source threshold will continue to be based on the PM-10 level defined
by the classification of the affected PM-10 nonattainment area. That
is, if the nonattainment area is not classified as serious, a 100 tpy
PM-10 emissions threshold will apply. For serious PM-10 nonattainment
areas, a 70 tpy major source threshold will apply.
For areas designated as attainment or unclassifiable for the
existing PM-10 NAAQS, permit applications for major new or modified
stationary sources with the potential to emit significant amounts of
PM-10 emissions (i.e., 15 tpy or more) must also continue to satisfy
the applicable PSD requirements for PM-10. The specific requirements
for PM include a demonstration that the source will: (1) Not cause or
contribute to a violation of the annual or 24-hour PM-10 NAAQS, (2) not
cause or contribute to a violation of the annual or 24-hour PM-10
increments, (3) not have an adverse impact on any air quality-related
value associated with ambient PM-10 concentrations in a Class I area,
and (4) apply best available control technology for PM-10 emissions.
The EPA intends the same interim implementation policy as described
above for PM to apply--whether or not EPA decides to delete the 24-hour
PM-10 NAAQS as an alternative to the proposed revision of the existing
24-hour PM-10 NAAQS. This is based on the need to continue to review
and control PM-10 emissions and their ambient impacts as a surrogate
for addressing the proposed 24-hour fine particle NAAQS during the
interim period.
Dated: November 27, 1996.
Carol M. Browner,
Administrator.
[FR Doc. 96-30898 Filed 12-12-96; 8:45 am]
BILLING CODE 6560-50-P
