[Federal Register Volume 64, Number 57 (Thursday, March 25, 1999)]
[Notices]
[Pages 14441-14444]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-7332]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-6315-1]
Extension of Attainment Dates for Downwind Transport Areas
AGENCY: Environmental Protection Agency (EPA).
ACTION: Notice; proposed interpretation; request for comments.
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SUMMARY: Today's document announces EPA's interpretation of the Clean
Air Act (Act) regarding the possibility of extending attainment dates
for ozone nonattainment areas that have been classified as moderate or
serious for the 1-hour standard and which are downwind of areas that
have interfered with their ability to demonstrate attainment by dates
prescribed in the Act. The guidance memorandum that is being printed in
today's notice is entitled ``Extension of Attainment Dates for Downwind
Transport Areas'' and was signed by Richard D. Wilson, Acting Assistant
Administrator for Air and Radiation, on July 16, 1998. This notice
follows up on the statement made in the guidance memorandum that EPA
would request comments on its interpretation.
A number of areas may find themselves facing the prospect of being
reclassified or ``bumped up'' to a higher classification in spite of
the fact that pollution beyond their control contributes to the levels
of ozone they experience. The notice addresses the problem by providing
an avenue to extend the attainment dates for areas affected by
transported pollution. The EPA intends to finalize the interpretation
in this guidance only when it applies in the appropriate context of
individual rulemakings addressing specific attainment demonstrations
and requests for attainment date extensions. If EPA approves an area's
attainment demonstration and attainment date extension request, the
area would no longer be subject to bump up for failure to attain by its
original attainment date.
DATES: The EPA is establishing an informal 30-day comment period for
today's notice, ending on April 26, 1999.
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ADDRESSES: Documents relevant to this action are available for
inspection at the Air and Radiation Docket and Information Center
(6101), Attention: Docket No. A-98-47, U.S. Environmental Protection
Agency, 401 M Street, SW, Room M-1500, Washington, DC 20460, telephone
(202) 260-7548, between 8:00 a.m. and 4:00 p.m., Monday through Friday,
excluding legal holidays. A reasonable fee may be charged for copying.
Written comments should be submitted to this address.
FOR FURTHER INFORMATION CONTACT: Denise Gerth, Air Quality Strategies
and Standards Division, Office of Air Quality Planning and Standards,
U.S. Environmental Protection Agency, MD-15, Research Triangle Park, NC
27711, telephone (919) 541-5550.
SUPPLEMENTARY INFORMATION: On July 16, 1998, the following guidance was
issued by Richard Wilson, Acting Assistant Administrator for Air and
Radiation. It should be noted that the July 16, 1998 memorandum
reprinted in this notice refers to EPA's proposed NOX SIP
call. After the memorandum was signed, EPA took final action on the SIP
call and promulgated a final rule. See 63 FR 57356 (October 27, 1998).
Guidance on Extension of Attainment Dates for Downwind Transport
Areas
Preface
The purpose of this guidance is to set forth EPA's current views on
the issues discussed herein. EPA intends soon to set out its
interpretation in an advance notice of proposed rulemaking on which the
Agency will take comment.
While EPA intends to proceed under the guidance that it is setting
out today, the Agency will finalize this interpretation only when it
applies in the appropriate context of individual rulemakings addressing
specific attainment demonstrations. At that time and in that context,
judicial review of EPA's interpretation would be available.
Introductory Summary
A number of areas in the country that have been classified as
moderate or serious nonattainment areas for the 1-hour ozone standard
are affected by pollution transported from upwind areas. For these
downwind areas, transport from upwind areas has interfered with their
ability to demonstrate attainment by the dates prescribed in the Clean
Air Act (Act). As a result, many of these areas find themselves facing
the prospect of being reclassified, or ``bumped up,'' to a higher
nonattainment classification in spite of the fact that pollution that
is beyond their control contributes to the levels of ozone they
experience. In the policy being issued today, EPA is addressing this
problem by planning to extend the attainment date for an area that is
affected by transport from either an upwind area with a later
attainment date or an upwind area in another State that significantly
contributes to downwind nonattainment, as long as the downwind area has
adopted all necessary local measures, and has submitted an approvable
attainment plan to EPA which includes those local measures. (By
``affected by transport,'' EPA means an area whose air quality is
affected by transport from an upwind area to a degree that affects the
area's ability to attain.) EPA intends to initiate rulemaking for each
area seeking such relief and contemplates providing such relief to
those who qualify. If after consideration of public comments EPA acts
to approve an area's attainment demonstration and extend its attainment
date, the area will no longer be subject to reclassification or ``bump-
up'' for failure to attain by its otherwise applicable attainment date.
Background
The Act may be interpreted to allow a later attainment date than
generally applicable to a particular ozone nonattainment area if
transport of ozone or its precursors (nitrogen oxides (NOX)
and volatile organic compounds (VOCs)) prevents timely attainment. This
principle has already been advanced in EPA's Overwhelming Transport
Policy, which allowed a downwind area to assume the later attainment
date if it could meet certain criteria, including a demonstration that
it would have attained ``but for'' transport from an upwind
nonattainment area with a later attainment date. See Memorandum from
Mary D. Nichols, Assistant Administrator for Air and Radiation,
entitled, ``Ozone Attainment Dates for Areas Affected by Overwhelming
Transport,'' September 1, 1994. In the four years since the issuance of
that memorandum, the history of the efforts to analyze and control
ozone transport has led EPA to believe that it should expand the
policy's reach to ensure that downwind areas are not unjustly penalized
as a result of transport.
In March 1995, EPA called for a collaborative, Federal-State
process for assessing the regional ozone transport problem and
developing solutions, and the Ozone Transport Assessment Group (OTAG)
was subsequently formed. See Memorandum from Mary D. Nichols, Assistant
Administrator for Air and Radiation, entitled ``Ozone Attainment
Demonstrations,'' March 2, 1995. The OTAG was an informal advisory
committee with representatives from EPA, thirty-seven states in the
Midwestern and eastern portions of the country, and industry and
environmental groups. OTAG's major functions included developing
computerized modeling analyses of the impact of various control
measures on air quality levels throughout the region and making
recommendations as to the appropriate ozone control strategy. Based on
OTAG's modeling analyses, it developed recommendations concerning
control strategies. These recommendations, issued in mid-1997, called
upon EPA to calculate the specific reductions needed from upwind areas.
In November 1997, using OTAG's technical work, EPA issued a
proposed NOX State implementation plan (SIP) call, directing
certain States to revise their SIPs in order to satisfy section
110(a)(2)(D) by reducing emissions of NOX to specified
levels, which in turn will reduce the amounts of ozone being
transported into nonattainment areas from upwind areas. 62 FR 60318
(November 7, 1997). In July 1997, the EPA promulgated a revised 8-hour
ozone NAAQS. 62 FR 38856 (July 18, 1997). That promulgation included
regulations providing that the 1-hour NAAQS would be phased out, and
would no longer apply to an area once EPA determined that the area had
air quality meeting the 1-hour standard. 40 CFR 50.9(b). Until the 1-
hour standard is revoked for a particular area, the area must continue
to implement the requirements aimed at attaining that standard.
The Current Problem
The Act called on areas classified as moderate ozone nonattainment
areas to submit SIPs that demonstrate attainment by 1996 (unless they
receive an extension), and called on serious nonattainment areas to
demonstrate attainment by November 1999 (unless they receive an
extension). Section 181 and 182(b) and (c). For many of these areas,
EPA has preliminarily determined in the proposed SIP call that
transport from upwind areas is contributing to their nonattainment
problems. Such transport also appears to be interfering with their
ability to demonstrate attainment by the statutory attainment dates.
The graduated control scheme in sections 181 and 182 of the Act
expressed Congress's intent that areas be assigned varying attainment
dates, depending upon the severity of the air quality problem they
confront. Sections 181 and 182 provide for attainment ``as
expeditiously as practicable,'' but
[[Page 14443]]
establish later deadlines for attainment in more polluted areas, and
additional control measures that the more polluted areas must
accomplish over the longer time frame. Thus, many of the upwind areas
have later attainment dates than the downwind areas which are affected
by emissions from the upwind States. On the other hand, section
110(a)(2)(D)(i)(I) of the Act requires SIPs to prohibit ``consistent
with the other provisions of [title I],'' emissions which will
``contribute significantly to nonattainment in * * * any other State.''
The EPA interprets section 110(a)(2)(A) to incorporate the same
requirement in the case of intrastate transport. Sections 176A and 184
provide for regional ozone transport commissions that may recommend
that EPA mandate additional regional control measures to allow areas to
reach timely attainment in accordance with section 110(a)(2)(D)(i)(I).
These provisions demonstrate Congressional intent that upwind areas
be responsible for preventing interference with timely downwind
attainment. They must be reconciled with express Congressional intent
that more polluted areas be allotted additional time to attain. As EPA
pointed out in its overwhelming transport policy, Congress does not
explicitly address how these provisions are to be read together to
resolve the circumstance where more polluted upwind areas interfere
with timely attainment downwind, during the time provided for those
upwind areas to reduce their own emissions.
In the 1994 overwhelming transport policy, EPA stated that it would
harmonize these provisions to avoid arguably absurd or odd results and
to give effect to as much of Congress' manifest intent as possible. The
EPA struck a balance in the overwhelming transport policy by requiring
that the upwind and downwind areas reduce their contribution to the
nonattainment problem while avoiding penalizing the downwind areas for
failure to do the impossible.
In the 1994 policy, EPA reasoned that Congress did not intend the
section 110(a)(2)(D)(i)(I) obligation to supersede the practicable
attainment deadlines and graduated control scheme in sections 181 and
182, especially since section 110(a)(2)(D)(i)(I) specifically applies
only ``to the extent consistent with the provisions of [title I].'' The
same rationale applies in the intrastate context under section
110(a)(2)(A).
Developments since the issuance of the overwhelming transport
policy in 1994 have prompted EPA once again to interpret these
provisions so that they can be reconciled in light of existing
circumstances. Since the issuance of that policy, EPA and the States,
through OTAG, have made significant progress in addressing interstate
transport in the eastern United States, and have worked to analyze the
flow of transport and to allocate among the States their respective
responsibilities for control. During the period required for this
effort, which took longer than was anticipated, the resolution of the
regional transport issue was held in abeyance. The effort to address
regional transport recently resulted in EPA's proposed NOx
SIP call, expected to be finalized in the next few months. For areas in
the OTAG region affected by transport, the conclusion of the OTAG and
SIP call processes in September 1998 will result in assignments of
responsibility that will assist in the design of SIPs and the formation
and implementation of attainment demonstrations.
Because EPA had not previously determined how much to require
upwind States in the OTAG region to reduce transport, downwind areas
were handicapped in their ability to determine the amounts of emissions
reductions needed to bring about attainment. While operating in this
environment of uncertainty, many of these downwind areas confronted
near-term attainment dates. Moreover, as described in the
NOX SIP call proposal, the reductions from the proposed
NOX SIP call will not likely be achieved until at least
2002, well after the attainment dates for many of the downwind
nonattainment areas that depend on those reductions to help reach
attainment.
The Solution
The EPA believes that a fair reading of the Act would allow it to
take these circumstances into account to harmonize the attainment
demonstration and attainment date requirements for downwind areas
affected by transport both with the graduated attainment date scheme
and the schedule for achieving reductions in emissions from upwind
areas. Thus, EPA will consider extending the attainment date for an
area that:
(1) Has been identified as a downwind area affected by transport
from either an upwind area in the same State with a later attainment
date or an upwind area in another State that significantly contributes
to downwind nonattainment. (By ``affected by transport,'' EPA means an
area whose air quality is affected by transport from an upwind area to
a degree that affects the area's ability to attain);
(2) Has submitted an approvable attainment demonstration with any
necessary, adopted local measures and with an attainment date that
shows that it will attain the 1-hour standard no later than the date
that the reductions are expected from upwind areas under the final
NOX SIP call and/or the statutory attainment date for upwind
nonattainment areas, i.e., assuming the boundary conditions reflecting
those upwind reductions;
(3) Has adopted all applicable local measures required under the
area's current classification and any additional measures necessary to
demonstrate attainment, assuming the reductions occur as required in
the upwind areas. (To meet section 182(c)(2)(B), serious areas would
only need to achieve progress requirements until their original
attainment date of November 15, 1999);
(4) Has provided that it will implement all adopted measures as
expeditiously as practicable, but no later than the date by which the
upwind reductions needed for attainment will be achieved.
EPA contemplates that when it acts to approve such an area's
attainment demonstration, it will, as necessary, extend that area's
attainment date to a date appropriate for that area in light of the
schedule for achieving the necessary upwind reductions. The area would
no longer be subject to reclassification or ``bump-up'' for failure to
attain by its original attainment date under section 181(b)(2).
Legal Rationale
The legal basis for EPA's interpretation of the attainment date
requirements employs and updates the rationale invoked in the Agency's
overwhelming transport policy. By filling a gap in the statutory
framework, EPA's interpretation harmonizes the requirements of sections
181 and 182 with the Act's requirements (sections 110(a)(2)(D)(i)(I),
110(a)(2)(A), 176A and 184) on inter-area transport. It reconciles the
principle that upwind areas are responsible for preventing interference
with downwind attainment with the Congressional intent to provide
longer attainment periods for areas with more intractable air pollution
problems. It also takes into account the amount of time it will take to
achieve emission reductions in upwind areas under the NOX
SIP call, which EPA expects to finalize in September 1998.
The EPA's resolution respects the intent of sections 181 and 182 to
provide longer attainment dates for areas burdened with more onerous
air pollution problems, while allowing
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reductions from upwind areas to benefit the downwind areas. Under EPA's
interpretation, upwind areas will be required to reduce emissions to
control transport, but should not find that the requirements imposed
upon them amount to an acceleration of the time frames Congress
envisioned for these areas in sections 181 and 182. Downwind areas will
be provided additional time to accommodate the delayed control
contributions from upwind areas, while at the same time being held
accountable for all measures required to control local sources of
pollution.
The EPA's interpretation of the Act allows it to extend attainment
dates only for those areas which are prevented from achieving timely
attainment due to a demonstrated transport problem from upwind areas,
and which submit attainment demonstrations and adopt local measures to
address the pollution that is within local control. The EPA believes
that Congress, had it addressed this issue, would not have intended
downwind areas to be penalized by being forced to compensate for
transported pollution by adopting measures that are more costly and
onerous and/or which will become superfluous once upwind areas reduce
their contribution to the pollution problem.
This interpretation also recognizes that downwind areas in the OTAG
region have been operating in a climate of uncertainty as to the
allocation of responsibility for controlling transported pollution.
Section 110(a)(2)(D) is not self-executing and, until the
NOX SIP call rulemaking, downwind areas in the OTAG region
could not determine what boundary conditions they should assume in
preparing attainment demonstrations and determining the sufficiency of
local controls to bring about attainment. By allowing these areas to
assume the boundary conditions reflecting reductions set forth in the
NOX SIP call and/or reductions from the requirements
prescribed for upwind nonattainment areas under the Act, EPA will hold
upwind areas responsible for reducing emissions of transported
pollution, and downwind areas will be obliged to adopt and implement
local controls that would bring about attainment but for the
transported pollution.
The EPA's interpretation harmonizes the disparate provisions of the
Act. It avoids accelerating the obligations of the upwind States so
that downwind States can meet earlier attainment dates, which would
subvert Congressional intent to allow upwind areas with more severe
pollution longer attainment time frames to attain the ozone standards.
In addition, EPA's interpretation of the Act takes into account the
fact that, under the SIP call, upwind area reductions will not be
achieved until after the attainment dates for moderate and serious
ozone nonattainment areas. To refuse to interpret the Act to accomplish
this would unduly penalize downwind areas by requiring them to
compensate for the transported pollution that will be dealt with by
controls adopted in response to the requirements of the NOX
SIP call or to achieve attainment in an upwind area. The EPA is thus
interpreting the requirements to allow the Agency to grant an
attainment date extension to areas that submit their attainment
demonstrations and all adopted measures necessary locally to show
attainment. This solution preserves the responsibility of these
downwind areas to prepare attainment demonstrations and adopt measures,
but does not penalize them for failing to achieve timely attainment by
reclassifying them upwards, since such attainment was foreclosed by
transport beyond their control.
Under this policy, once EPA has acted to approve the attainment
demonstration and extend the area's attainment date, the area would no
longer be subject to reclassification or ``bump-up'' for failure to
attain by its original attainment date under section 181(b)(2).
The EPA requests comment on the interpretation in the guidance
memorandum reprinted above.
Dated: March 18, 1999.
Robert D. Brenner,
Acting Assistant Administrator for Air and Radiation.
[FR Doc. 99-7332 Filed 3-24-99; 8:45 am]
BILLING CODE 6560-50-P
