SIP GUIDANCE
NOTEBOOK 1
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SIP GUIDANCE NOTEBOOKS
NOTEBOOK I
A. Carbon Monoxide (CO )
B. Clean Fuel Fleet
C. Conformity
D. Contingency Measures
E. Designations, Classifications, and Bump—ups
F. Em lovee Commute Options (ECO). Transportation Control
Measures (TCMs) and Vehicle Miles Travelled (VMT )
G. Emissions Inventories and Statements
H. General Cross—Cutting Guidance and Miscellaneous
NOTEBOOK 2
I. Inspection and Maintenance (I/M I
J. Lead (Pb )
K. New Source Review (NSR )
L. Nitrogen Oxides (NOx) (Including NOx RACT )
M. Ozone (Attainment Demonstrations. Transport. General )
NOTEBOOK 3
N. Particulate Matter (PM-b )
0. Reasonable Further Progress
P. Redesignations
Q. Reid Vapor Pressure (RVP). Oxygenated Fuels, and
Miscellaneous Fuels
R. Sanctions and FIPs
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NOTEBOOK 4
S. SIP Procedures and Form
T. Stack Heights
U. Stage II
V. Volatile Organic Compounds (VOCs) (Including PACT )
W. Small Business Programs
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A. Carbon Monoxide (CO)
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A. Carbon Monoxide (CO )
A.l. Guidance f or Determining Significant Stationary Sources of
Carbon Monoxide - - May 13, 1991 memo from William G. Laxton
A.2. Technical Support Document to Aid States with the
Development of Carbon Monoxide State Implementation Plans - -
July 1992
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UNITED STATES ENVIRONME AL PROTECTION AGENCY ‘. ..‘ .
Office of Air Quality Planning and Standards
Research Triangle Park. North Carolina 27711
M Y 13 199
MEMORANDUM
SUBjECT: Guidance f or termining significant Stationary Sources
of Carbon Monoxide
FROM: William G. LaxtOfl, Director
Technical Support Division (M —14)
TO: see Below
The purpose of this memorandum is to provide guidance for
etermifliflg whether stationary sources contribute signifiCantlY 1
to carbon monoxide (CO) levels in an area. The guidance is being
provided in accordance with Section 187(C)(3) of the Clean Air
Act AiuendlnefltS (CAAA) of 1990. This guidance has been reviewed
by the EmiSSiOfl Sub-Work Group of the Clean
Air Act, Title I Work Group and their comments have been
incorporated. This work group includes representatives from the
Office of Air Quality planning and standards, EPA Regional
Offices, the Office of Mobile Sources, the Office of General
counsel, the Office of Planning, Policy and Evaluation, State air
quality control agencies, the State and Territorial Air Pollution
Program Administrators, and the Association of Local Air
pollution control Officials.
The determination of whether stationary sources contribute
significantlY to CO levels in an area shall be accomplished by
following the guidance and using dispersion modeling techniqUeS
contained in the Guideline Ofl Air Quality Models (Revised).
Section 6 of the modeling guideline provides a general overview
of CO models. When terrain surrounding the stationary sources is
below stack height (simple terrain), simple terrain modeling
shall be performed as discussed in Section 4 cf the modeling
guideline. If impaction of stationary source plumes Ofl terrain
greater than stack height (Complex terrain) is possible then the
sources shall be modeled with an appropriate complex terrain
model as discussed in Section 5 of the modeling guideline. If
the results of dispersion ode1iflg of one or more stationary
i-The word significafltlY” as used in this guidance
memorandum applies only to Section 187(C) of the Clean Air Act
Amendments of 1990 and should not be confused with usignificant”
as used in the New Source Review program.
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sources of Co in an area show any concentration in ambient air
that is in excess of the CO National Ambient Air Quality
Standard (NAAQS), then the area is considered to be an area where
stationary sources contribute significantly to Co levels. The
NAAQS for CO are 35 parts per million (ppm) for the one hour
standard and 9 ppm for the eight hour standard, with neither to
be exceeded more than once pe r year.
The stationary source air quality modeling analysis shall
assume the stationary sources are in compliance with the State
Implementation Plan and use allowable CO emissions for the
source, rather than actual emissions, as discussed in Section 9
of the Guideline on Air Quality Models (Revised). 2 Since the
intent is to determine whether stationary sources in and of
themselves can cause ambient air concentrations in excess of the
CO NAAQS, no background (0 ppm) shall be used when modeling the
stationary sources. Receptor sites for the modeling shall be of
sufficient number to adequately characterize the highest
concentration resulting from stationary sources, as discussed in
Section 8 of the modeling guideline.
Use of EPA’s simple screening procedure indicates that a
stationary source that emits 5,000 tons or more of CO per year
has the potential to produce concentrations in excess of the
8-hour CO NAAQS. It is not likely that a source that emits less
than 5,000 tons per year will produce concentrations that exceed
the CO NAAQS unless the emissions are at or very close to ground
level.
This guidance has two uses. The first is to identify
serious CO nonattainxnent areas in which stationary sources
contribute significantly to CO levels. Section l87(c)(l) of the
CAAA states that in such areas the State shall submit a plan
revision within 2 years after the date of enactment of the CAAA.
The plan revision must provide that the term major stationary
source for New Source Review nonattainment requirements includes
any stationary source which emits or has the potential to emit 50
tons per year or more of CO.
Serious Co nonattainment areas are those with an 8—hour
design value at or above 16.5 ppm. There are currently only
three serious CO nonattainment areas in the country. They are:
1) Los Angeles-Anaheim-Riverside, California, 2) Winnebago
County, Wisconsin, and 3) Steubenville, Ohio-Weirton, West
Virginia. A review of the emissions data in the Aerometric
Information Retrieval System (AIRS) and more up to date emissions
2 jfl cases where there is no State Implementation Plan or
allowable CO emissions in an area are undefined, the stationary
sources shall be modeled using uncontrolled emissions at design
capacity.
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data provided by EPA Region V shows that Winnebago County and
Ste benvi1le—Weirton have sources which emit in excess of 5,000
tons of CO per year. According to the data in AIRS, Los Angeles
does not have any sources which emit 5,000 tons or more of CO per
year.
The second use of this guidance is to determine areas that
may apply for waivers from mobile source controls. Section
l87(c)(2) of the c allows mobile source controls (transporta-
tion controls, inspection and maintenance, or oxygenated fuels)
to be waived by the Administrator where mobile sources do not
contribute significantly to CO levels. The General Preamble for
Title I rulemaking now under preparation will contain c’riteria
for applying for waivers from mobile source controls,. The
criteria in the draft General Preamble are: 1) stationary
sources contribute significantly to Co levels in an area
determined in accordance with the guidance contained in this
memorandum, and 2) submittal of a complete, enforceable SIP that
demonstrates attainment by the required date without the relia c
on mobile source controls.
If you have any questions or concerns regarding this
guidance or its use, please contact Tom Braverman of my staff at
FTS: 629—5383.
Addressees :
Director, Air, Pesticides and Toxics Division,
Regions I, IV, VI
‘Director, Air and Waste Management Division, Region II
Director, Air Radiation and Toxics Division, Region III
Director, Air and Radiation Division, Region V
Director, Air and Toxics Division, Regions VII, VIII, IX and X
cc: Air Branch Chief, Regions I—X
J. Calcagni
A. Eckert
T. Helms
J. Seitz
M. Shapiro
L. Wegman
R. Wilson
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- —. .1
-.
;, ‘ tinitedState’
• Environmental Protection
Air -
Office of Air Quality - EPA 52IR. 3
Plannmg and Standards 1. ‘;July 1992 . .
Resnaith Trian le Park, NC 277U -. - .
TECHNICAL 4 SUPPORT DOCUMENT
TO AID STATES WITH THE
DEVELOPMENT OF CARBON
MONOXIDE STATE:.
iMPLEMENTAT!ON PLA
•‘I : ‘
- •0s4
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TECHNICAL SUPPORT DOCUMENT TO
AID STATES WITH THE DEVELOPMENT
OF CARBON MONOXIDE STATE
IMPLEMENTATION PLANS.
Ozone/Carbon Monoxide Programs Branch
U. S. Environmental Protection Agency
Office of Air Quality Planning and Standards
Research Triangle Park, NC 27711
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E g
EXECUTIVE SUMMARY . 1
II PROVISIONS OF THE CLEAN AIR ACT OF 1990 FOR
CO NONATI’AINMENT AREAS
A. INTRODUCTION
B. REQUIREMENTS FOR MODERATE CO NONATfAINMENT AREAS LESS THAN
OR EQUAL TO 12.7 PPM
1. Emission Inventories .
2. Inspection and Maintenance Corrections
3. Periodic Inventory
4. Attainment Demonstration
5. Use of Oxygenated Fuels
6. New Source Review
7. Contingency Measures
C. REQUIREMENTS FOR MODERATE CO NONATFAINMENT AREAS GREATER
THAN 12.7 PPM
1. Vehicle Miles Traveled Forecasts
2. Contingency Measures
3. Enhanced Inspection and Maintenance
4. Attainment Demonstration
5. New Source Review
D. REQUIREMENTS FOR SERIOUS CO NONATFAINMENT AREAS
1. Major Stationary Source Definition
2. Transportation Control Measures
3. Clean Fuel Vehicle Fleet Program
4. Milestone and Attainment Failures (Economic Incentive Programs)
E. REQUIREMENTS FOR NOT-CLASSIFIED CO NONAT AINMENT AREAS . ..... 9
1. Not-Classified Areas 9
2. Section 172 (b-c) Requirements for Not-Classified Areas 9
3. Attainment Dates for Not-Classified Areas 10
III ADDITIONAL CO NONATTAINMENT AREA REQUIREMENTS OR ISSUES 11
A. MULTISTATE CO NONA1TAINMENT AREAS 11
1. MultiState Coordination
11
2. Joint Work Plan
11
3. Attainment Demonstration
11
B.
RULE EFFECTIVENESS
12
C.
AREAS WITH SIGNIFICANT STATIONARY SOURCES OF CO
12
D.
AREAS WITH LOW MOBILE SOURCE CO EMISSIONS
13
E.
REDESIGNATIONIRECLASSIFICATION
13
I. Moderate Areas That Do Not Attain (“Bump up’)
13
2. Section 179B International Border Areas
14
3. Redesignation from Nonattainment to Attainment
14
4. Redesignation from Attainment to Nonattainment
14
F.
EXTENSIONS OF ATTAINMENT DATES
15
CONTENTS
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G. MAINTENANCE PLANS .•: 15
V THE RELATIONSHIP OF THE CO S P WITH OTHER CAAA PROVISIONS
A. TITLEJI: MOTOR VEHICLES
I. On-board Diagnostics
2. Oxygenated Fuels
IV SIP-RELATED ISSUES
A. INTRODUCTION
B. INVENTORY DEVELOPMENT AND UPDATING
1. Base Year Inventory
2. Periodic Inventory
3. Modeling Inventory
4. Registration Distributions and MOBILE4. 1 Projections
5. Other Inventory Issues
6. Additional References for Inventory Development Updating
C. CONTROLS FOR STATIONARY SOURCES
1. Industrial CO Controls
2. Residential Wood Burning
D. CONTROLS FOR MOBILE SOURCES
1. Inspection and Maintenance
2. Oxygenated Fuels
3. Transportation Control Measures
4. New Light-Duty Truck Emissions Standards
5. Clean Fuel Vehicle Fleet Programs
6. Cold Temperature Starts
7. California Low Emission Vehicle Program . .
8. Federal Tier II Standards
E. OTHER MOBILE SOURCE CONTROL ISSUES.
.1.
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1. ‘Nonroad Engines and Vehicles
2. Locomotives
3. Aircraft
F. MODELING ASSESSMENTS
I. Intersection
2. Areawide Analyses
G. VMT CONSIDERATIONS
I. General Information
2. Reporting
3. Tracking
4. Forecasting
5. Contingency Measures
H. SERIOUS AREA ISSUES
1. Milestone Demonstration
2. Transportation Control Measures
3. Clean Fuel Vehicle Fleet Programs . .
CONTINGENCY MEASURES
I. Implementation of Measures
2. Interaction with VMT Offsets
3. MarginofError
J. LONG-TERM CONTROL MEASURES AND STRATEGIES
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3. Clean Fuel Vehicle Fleets .. . 38
B. NEW SOURCE REVIEW ... 38
C. ECONOMIC INCENTIVES PROGRAMS ... 39
D. CONFORMITY ... 39
1. Interim Period . . . 40
2. Emission Budgets for Transportation Conformity 40
3. Maintenance Plans 41
4. Failure to Meet a Milestone/Attainment 41
APPENDIX A: CHECKLIST A-i
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ABBREVIATIONS AND ACRONYMS
Act Clean Air Act
CAAA Clean Air Act Amendments of 1990
CO carbon monoxide
CMSA Consolidated Metropolitan Statistical Area
DOT U.S. Department of Transportation
EIP Economic Incentive Program
FHWA Federal Highway Administration
FID Flame Ionization Detection
FTA Federal Transit Administration
g/mi grams per mile
GVWR gross vehicle weight rating
HC hydrocarbon
HPMS Highway Performance Monitoring System
I/M Inspection and Maintenance
LAER Lowest Achievable Emission Rate
lbs pounds
LDT light-duty truck
LDV light-duty vehicle
LEV low emission vehicle
LVW loaded vehicle weight
MACI maximum achievable control technology
mph miles per hour
MSA Metropolitan Statistical Area
NAAQS National Ambient Air Quality Standard
NO nitrogen oxide
NSPS New Source Performance Standard
NSR New Source Review
OMS Office of Mobile Sources
ppm parts per million
RACT reasonably available control technology
RACM. reasonably available control measures
RFP Reasonable Further Progress
RIA Regulatory Impact Analysis
SIP State Implementation Plan
TCM transportation control measures
TW test weight
tpy tons per year
VMT vehicle miles traveled
VOC volatile organic compounds
UAM Urban Airshed Model
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SECTION 1
EXECUTIVE SUMMARY
Section 104 of the Clean Air Act (Act) Amendments of 1990 (CAAA) amends Part D of Title I
of the Act by adding additional provisions for carbon monoxide (CO) nonattainment areas (Subpart
3). The two additional sections to Subpart 3 are sections 186 and 187, which pertain to the
classification of CO nonattainment areas and to the submission requirements of the State
implementation plans (SIP’s) for these areas, respectively. This document provides the States with
guidance in developing their SIP for the moderate and serious CO nonattainment areas under their
administration. This guidance document should be used in conjunction with discussions between the
States and the Environmental Protection Agency (EPA) Regional Office staffs and with other relevant
EPA offices, as well as with the appropriate referenced EPA materials.
The purpose of this guidance is to provide technical specifications to support the policy presented
in the General Preamble: Implementation of Title I CAAA of 1990’ [ 57 FR 13948] (General
Preamble). The General Preamble is the appropriate guidance citation to be incorporated in the
development of SIP’s.
The major elements and requirements of sections 186 and 187 are presented in this docum ent,
with appropriate references to other EPA guidance and technical materials. The key elements of the
requirements for the CO SIP materials are:
- Existing and newly designated CO nonattainment areas are classified into three categories
with specific and additive requirements as the designations become more severe.
- The CAAA establishes several new classifications for air quality control regions for CO,
including not-classified areas, multistate nonattainment areas, and areas with significant
stationary sources of CO, with separate requirements for these areas.
- The deadlines for attainment demonstration and achievement are accompanied by bump-up
provisions which place increased requirements on these nonattainment areas.
- The development and maintenance of emission inventories and other forecasting and
tracking mechanisms, such as those for vehicle miles traveled (VMT), will play increasingly
important roles in the SIP process.
- The role of inspection/maintenance (JIM) and clean fuel fleet programs, transportation
control measures, and the use of oxygenated fuels will play increasingly important and
prominent roles in the SIP’s for CO nonattainment areas, illustrating the heavy contribution
of this pollutant by mobile sources.
— Lone rm control strategies and measures, economic incentive programs, and contingency
measures will play increasingly important and prominent roles in the SIP’s for certain CO
nonattainment areas.
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- States are required to continue control programs for CO sources for at least 10 years after
the redesignation of an area to attainment stat is. These requirements place increased
demands on the State agencies to prepare and implement programs and strategies with
longer time horizons.
- Modeling analyses and increased monitoring networks will be necessary to show continuing
maintenance or attainment of the National Ambient Air Quality tandards (NAAQS.)
- Because several other provisions of the CAAA affect Co nonattainment areas, States must
be aware of the interaction with Title H, and new source review, economic incentive
programs, and conformity requirements.
- A checklist has been prepared to assist the State agencies in preparing the SIP’s for CO.
Section II of this document outlines the provisions of sections 186 and 187 of the CAAA.
Section III presents information on general issues or requirements relevant to the preparation of the
CO SIP submittals. Section IV discusses SIP-related issues which are unique to the SIP submittals for
CO nonattainment areas. Section V discusses the relationship between the requirements of the SIP
submittals for CO nonattainment areas and other CAAA provisions. Appendix A presents a checklist
that has been developed to provide a step-by-step approach to the preparation of the CO SIP
submittal. This checklist should be helpful in ensuring that the SIP submittal is complete.
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SECTION II
PROVISIONS OF THE CLEAN AIR ACT OF 1990 FOR CO
NONArrAINMENT AREAS
A. INTRODUCTION
Title I of the CAAA establishes revised requirements for areas that have not attained the NAAQS
for CO. These requirements include attainment deadlines, area classifications, and the required
provisions of the SIP’s for these nonattainment areas. The two pertinent sections of the CAAA are
section 186 and section 187.
Section 186 establishes nonattainment classifications, moderate (design values between 9.1 and
16.4 ppm), serious (design values greater than 16.4 ppm), and “noz-c1ass fied, for nonattainment
areas that do not meet the classification scheme, and sets deadlines for the attainment of the primary
CO NAAQS within these areas. Section 187, which establishes the SIP requirements for the
nonattainment areas, further differentiates between moderate areas with design values less than or
equal to 12.7 ppm and those with design values above 12.7 ppm. Serious nonattainment areas must
meet all the requirements of moderate areas plus ‘additional requirements. The requirements of
section 187 include SIP provisions for regular emission inventories, forecasts and verification of
VMT, contingency measures, vehicle I/M programs, attainment demonstrations, transportation control
measures (TCM’s), and use of special oxygenated gasoline.
One of the main goals of the CAAA was to overhaul previous Act provisions regarding planning
for NAAQS attainment. These Amendments modify the existing law and set standards and
requirements to address previous failure to attain CO standards. Title I of the CAAA (“Provisions for
Attainment and Maintenance of NAAQS”) amends and supplements Title I of the Act (“Air Pollution
Prevention and Control”). The revised general requirements for all SIP’s, regardless of the
attainment demonstration required, appear early in Title I of the CAAA and should be reviewed, but
will not be covered in this document.
B. REQUIREMENTS FOR MODERATE CO NONA’FrAINMENT AREAS LESS ThAN OR
EQUAL TO 12.7 PPM
1. Emission Inventories
Section 187(a)(1) requires moderate CO areas to submit comprehensive emissions inventories
from. alL sources b j’ November 15, 1992, as described in section 172(c)(3). Draft 1990 base year
inventories’ addressuig actual CO emissions during the peak CO season for the area should have been
submitted by May, 1, 1992. as specified in an EPA guidance document (‘Emission Inventory
Rtiirements for Carbon onoxide Scat Implementation Plans,’ EPA, OAQPS, EPA-450/4-9 I-Oil,
Mardi 1991).
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2. Inspection and Maintenance Corrections
Section 1 87(a)(4) requires States with moderate CO nonauainrnent areas that already include JIM
programs, or that were required by the pre-1990 Act to include I/M programs in their SIP’s, to
submit to EPA immediately upon enactment any revisions necessary to provide for a program no less
stringent than that required prior to enactment or committed to in the SIP in effect at the time of
enactment, whichever is more stringent. Requirements for I/M programs are contained in section
182(a)(2)(B). In short, the moderate areas must maintain existing J/M programs and make corrections
to those programs to meet existing JIM policy; when updated policy is published, these areas must
submit revisions to address any revised guidance. (See “Notice of Proposed Rulemaking on
Requirements for Preparation, Adoption, and Submittal of Implementation Plans:
Inspection/Maintenance Program Requirements,” expected in Federal Register, 1992.)
Section 202(m) requires the Administrator to promulgate regulations requiring manufacturers to
install diagnostic systems on all new light-duty vehicles and light-duty trucks. Section 202(m)(3)
requires States with J/M programs to amend their SIP’s within 2 years of EPA requiring them to do
so by including inspection of on-board diagnostics systems. (See “Notice of Proposed Rulemaking on
On-Board Diagnostics” [ 56 FR 48272]. The final regulation is expected in the summer of 1992.)
3. Periodic Inventory
Section 187(a)(5) requires States with moderate CO nonattainment areas to submit periodic
inventories beginning on September 30, 1995, and then every 3 years thereafter until redesignated to
attainment. The periodic inventory must meet the same requirements as the base year inventory. By
meeting these specific periodic inventory requirements, States will also satisfy the general.periodic
inventory requirements of section 172(c)(3). (See “Guidance for Initiating Ozone/CO SIP Emission
Inventories Pursuant to the 1990 Clean Air Act Amendments,” EPA, February 1991. See also
General Preamble [ 57 FR 13948, April 16, 19921 Section IH.A.2.(a).)
- 4. Attainment Demonstration
No attainment demonstration is required for moderate CO areas with CO design values of 12.7
ppm or less.
5. Use of Oxygenated Fuels
Section 211(m) requires any State containing all or part of a CO nonattainment area with a design
value of 9.5 ppm or greater (based on 1988 and 1989 data) to submit SIP revisions containing
oxygenated fuel requirements. Section 187(b) requires such SIP revisions within 2 years of
enactment. Because section 211(m) is more detailed than section 1 87(b)(3), and applies to a greater
number of CO nonattainment areas, the substantive requirements of section2ll(m) should be followed
in preparing SIP revisions. (Design value and interpretation methodology guidance contained in a
June 18, 1990, memorandum from William Laxton, Director, Technical Support Division, to the
Regional Division Directors, should be used to determine which areas are subject to this
requirement.) The oxygenated gasoline program must require gasoline in the specified control area to
cont:ain not less than 2.7 percent oxygen by weight, during that portion of the year in which the areas
are prone to high ambient concentration of CO. The length of the control period is to be established
by the Administrator and shall not be less than 4 months in length unless a State can demonstrate that,
because of meteorological conditions, a reduced period will assure that there will be no CO
exceedances outside of such reduced period. These requirements are to generally cover all gasolii
4.
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sold or dispensed in the larger of the consolidated metropolitan statisticai area (CMSA) or the
metropolitan statistical area (MSA) in which the nonattainment area is located. Even though it may
be only a small portion of a CMSA that is designated as a nonattainment area, the entire CMSA must
enact oxygenated fuel programs. However, a contiguous State is not required to establish a program
for any portion of the CMSA which is in the contiguous State and is entirely in attainment.
Oxygenated fuel requirements must generally take effect no later than November 1, 1992. (See
“Oxygenated Fuels Labeling Regulations-Notice of Proposed Regulations,” (56 FR 31148, July 9,
19911; “Supplemental Notice of Proposed Guidance on Establishment of Control Periods Under
Section 211(m) of the CAA as Amended,” [ 57 FR 4408, February 5, 19921; and “Proposed
Guidelines for Oxygenated Gasoline Credit Programs under section 211(m) of the CAA as Amended,”
(57 FR 4413, February 5, 1992].)
6. New Source Review
The Part D, New Source Review (NSR), permit requirements of section 173 apply in CO
nonattainment areas. All moderate CO nonanainment areas’ with a design value of 12.7 or less must
submit proposed Part D NSR programs no later than November 15, 1993, in accordance with the
requirements of section 172(c)(5) and section 173. The major stationary source threshold for all
moderate areas remains unchanged at 100 tpy of CO. (See upcoming NSR update package, expected
fall 1992, and General Preamble [ 57 FR 13948J Section lll.G. See also Section V.B. of this
document.)
7. Contingency Measures
For CO areas with design values of 12.7 ppm or less, contingency measures are needed to satisfy
the provisions under section 172(c)(9) and are due by November 15, 1993, as set by EPA under
section 172(b). These provisions require contingency measures to be implemented in the event that
an area fails to reach attainment by the applicable attainment date.
Such contingency measures, once triggered, are to take effect automatically, without further
action by the State or the Administrator. The trigger for section 172(c)(9) contingency measures is a
finding by EPA that an area failed to attain the CO NAAQS by the applicable attainment date
(December 31, 1995). The requirement for contingency measures will “take effect without further
action by the State or the Administrator” which means that no further rulemaking activities by the
State or EPA would be needed to implement the measures. Certain actions, such as notification of
sources, modification of permits, etc., would probably be needed before a measure could be
implemented effectively. States must show that their contingency measures can be implemented with
minimal further action on their part and with no additional rulemaking actions. In general, EPA will
expect all actions needed to effect full implementation of the measures to occur within 60 days after
EPA notifies the State of its failure.
Due to the specification that contingency measures, once triggered, must take effect without
further action by the State or EPA, all contingency measures must be adopted and enforceable prior to
submittal to EPA on November 15, 1993.
The CAAA do not specify how many contingency measures are needed or the magnitude of
eni i reductions they must provide if an area fails to attain the CO NAAQS. The EPA believes
th z one appropriate choice of contingency measuies would be to provide for the implementation of
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sufficient VMT reductions or emissions reductions to counteract the effect of 1 year’s growth in VMT
while the State revises its SIP to incorporate all of the new requirements of a “serious” CO area.
Some examples of contingency measures for these areas include:
• Measures required by’the next higher classification (e.g., an enhanced I/M
program)
• Transportation control measures
• An employer trip reduction program
• An economic incentive program (the following are taken from Appendix W of
the upcoming “Notice of Proposed Rulemaking” on economic incentive
programs):
Fee Programs — Road pricing mechanisms are fee programs that are available to
curtail low occupancy vehicle use, fund transportation system improvements and
control measures, spatially and temporally shift driving patterns, and attempt to effect
land usage changes. Primary examples include increased peak period roadway, bridge,
or tunnel tolls (this could also be accomplished with automated vehicle identification
systems as well), and toll discounts for pooling arrangements and zero-emitting/low-
emitting vehicles.
Tax Code Provisions — Mobile source tax code incentive strategies include waiving or
lowering any of the following for zero or low-emitting vehicles: vehicle registration
fees, vehicle property tax, sales tax, taxicab license fees, and parking taxes.
Subsidies — A State may create incentives for reducing emissions by offering direct
subsidies, grants, or low interest loans to encourage purchase of lower-emitting capital
equipment or a switch to less-polluting operating practices. Examples of such
programs include clean vehicle conversions, starting shuttle bus or van pool programs,.
and mass transit fare subsidies.
Early Reduction Programs — An example would include an old car scrappage
program.
• A more stringent oxygenated fuels program than is statutorily required.
The EPA concludes that, to be beneficial, contingency measures must be implemented within 12
months after the finding of failure to attain the CO NAAQS. Contingency measures for CO areas
should achieve emissions reductions that are adequate to counteract the effect of 1 year’s growth in
VMT. States should therefore be aware that late implementation of contingency measures may result
in the failure to achieve the requisite level of emissions reductions. The examples listed above are
merely suggestions. States should select contingency measures which can be implemented within the
12-month period following the failure.
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C. REQUIREMENTS FOR MODERATE CO NONATFAINMENT AREAS GREATER THAN
12.7 PPM -
In addition to the requirements noted below, these CO nonattainment areas must also meet all the
requirements listed in Section B.
I. Vehide Miles Traveled Forecasts
Section 1 87(a)(2)(A) requires that States include a forecast of VMT for each year before the
attainment year in the SIP revision for CO submitted to EPA by November 1992 under section
1 87(a)(7). The SIP revision must provide for annual forecast updates and annual reports attesting to
the accuracy of the forecasts, as well as estimates of actual VMT in each year for which a forecast
was required. (See “Section 187 VMT Forecasting and Tracking Guidance,” EPA, March 1992,
issued January 1992.)
2. Contingency Measures
Section 187(a)(3) requires areas with design values greater than 12.7 ppm to implement
contingency measures if any estimate of actual VMT or any updated VMT forecast for the area
contained in an annual report for any year prior to attainment exceeds the number predicted in the
most recent VMT forecast. (See “Margin of Error” discussion, Section 111.1.3 of this document,
regarding exceedance trigger.) Contingency measures are also triggered by failure to attain the
NAAQS for CO by the attainment deadline. Contingency measures must be submitted with the CO
SIP by November 15, 1992. These contingency requirements for SIP’s supersede the contingency
requirements contained in the 1982 ozone and CO SIP guidance (46 FR 7182, January 21, 1981).
3. Enhanced Inspection and Maintenance
Section 187(a)(6) requires CO nonattainment areas with a design value greater than 12.7 ppm to
implement enhanced I/M programs in urbanized nonattainment areas with 1980 populations of
200,000 or greater (as defined by the Bureau of the Census). The plan must meet the requirements of
section 182(c)(3). (See “Notice of Proposed Rulemaking on Requirements for Preparation, Adoption,
and Submittal of Implementation Plans: Inspection/Maintenance Program Requirements,” expected in
Federal Register, 1992.) -
4. Attainment Demonstration
Section 187(a)(7) requires a demonstration of attainment by November 15, 1992. This can be
met through application of a modeling analysis, following the guidance contained in the current EPA
“Guideline on Air Quality Models (Revised).” A SIP control strategy, also due by November 15,
1992, must be included to ensure that the area meets the specific annual emissions reductions deemed
necessary for the area to attain the standard by the attainment date. (See Section IV.F of this
document for a discussion of “Modeling Assessments.”)
5. New Source Review
AIJ CO r aaainment areas with a design value greater than 12.7 ppm must submit Part D NSR
progran me ing the requirements of section 172(c)(5) and section 173 by November 15, 1992. (See
upcoming NSR update package, expected fall 1992, and General Preamble [ 57 FR 13948J Section
111G. See also Section V.B of this document.)
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D. REQUIREMENTS FOR SERIOUS CO NONATTAINMENT AREAS
1. Major Stationary Source Definition
Section 187(c)(1) states that the term “major stationary sourcew shall include any stationary
source that emits or has the potential to emit 50 tpy or more of CO. (See memorandum from
William Laxton, Technical Support Division, to Regional Air Division Directors, “Guidance for
Determining Significant Stationary Sources of Carbon Monoxide,” May 13, 1991.) Such designations
shall be included in the SIP to be submitted by November 15, 1992. Without such a determination,
“major stationary source” shall refer to any stationary source that emits (or has the potential to emit)
100 tpy or more of CO.
2. Transportation Control Measures
The TCM’s for serious CO areas must be equivalent to those required for severe areas. Section
1 87(b)(2) and I 87(a)(2)(B) requires serious CO areas (and Denver, Colorado) to adopt and implement
enforceable TCM’s to offset any growth in emissions from growth in VMT and, in conjunction with
other control measures, to comply with the periodic emissions reduction requirements of the CAAA.
In addition, serious areas must adopt employee trip reduction programs, as described in section
182(d)(1)(B), though Denver has no such requirement. The TCM’s are due November 15, 1992.
Applicable TCM’s are listed in section 108(f ). (See Section IV.D.3 of this document.)
3. Clean Fuel Vehicle Fleet Program
Section 246(a)(2)(B) requires that all CO nonattainment areas with 1980 populations of 250,000
or more and design values of 16.0 ppm or greater submit SIP revisions providing for clean fuel
vehicle fleet programs by May 15, 1994. The programs must require a specified percentage of fleet
vehicles in model year 1998 and thereafter to be clean fuel vehicles that use only clean alternative
fuels when operating in the area. (See “Clean Fuel Fleet Credit Programs, Transportation Control
Measure Exemptions, and Related Provisions” [ 56 FR 50196].)
4. Milestone and Attainment Failures (Economic Incentives Programs)
Economic incentives and transportation control programs, as described in section 182(g)(4), are
required for serious areas under several different types of failure: failure to submit a milestone
demonstration, section 1 87(d)(3); failure to meet the milestone, section 1 87(d)(3); or failure to attain
the standard by the applicable attainment date, section 187(j). In all such cases, the State shall
submit a plan revision containing such incentives within 9 months of failure or of EPA notification to
the State of the failure. (See Section V.C of this document.)
E. REQUIREMENTS FOR “NOT-CLASSIFIED” CO NONA1TAINMENT AREAS
1. “Not-doss jfled” Areas
A “not-classified” area is an area that retained its nonattainment designation at enactment, under
section 107(d)(1)(c), but for which data are not available to conclude whether or not the area violated
the standard for CO during the 2-year period from 1988 to 1989. Subpart 3 of Part D does not
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the standard for CO during the 2-year period from 1988 to 1989. Subpart 3 of Part D does not
apply, though some parts of Subpart 1 do. Unless such areas are redesignated to attainment in section
107(d)(1)(c), certain SIP revisions are due no later than 3 years from the date of designation (i.e., by
November 15, 1993). The requirements for “not-classified” areas are contained in the following
sections. -
2. Section 172 (b-c) Requirements for “Not-class ified TM Areas
The CO “not-classified” areas will remain in nonattainment until the five redesignation
requirements (i-v) under section 1O7(d)(3)(E) are met. The provisions contained in this section are
described below. Not-classified CO areas must meet certain SIP requirements under section 172(c),
Subpart I as discussed below. Specifically, all “not-classified” areas must submit an emissions
inventory and a nonattainment NSR program.
a. Reasonable Available Control Measures (RACM)
Because these areas are already in or near attainment, EPA does not believe that any measures
other than what may already be in place or are otherwise required under the Act are “reasonably
available.” Therefore, no additional control measures are required as part of RACM.
b. Attainment demonstration
Section 187(a)(7) specifically exempts moderate areas with design values of 12.7 ppm or less
from requiring an attainment demonstration. The EPA will presume that existing SIP requirements
and any existing and future Federal requirements (e.g., the Title II rules) will be sufficient to provide
for attainment in these areas. Likewise, no attainment demonstration is required for “not-classified’
areas.
c. Reasonable Fualher Progress (RFP)
Since EPA presumes that a “not-classified” area is already in or near attainment, a RFP
requirement is deemed to have been met by any existing SIP requirements, plus Federal measures.
d. Emissions Inventory
An emissions inventory is specifically required under this section and is not tied to an area’s
proximity to attainment. Moreover, even if these areas are already attaining or near attainment, they
will need such an inventory to develop an approvable maintenance plan under section 175A. The
emissions inventory should be included in the SIP revision that is required 3 years from designation.
The emissions inventory must be submitted by November 15, 1993. The emissions inventory that is
submitted to fulfill this requirement may also serve as the basis for a redesignation request.
e. New Source Review
All ncmattainment areas, including “not-classified’ areas, are required to adopt NSR programs
meeting the requirements of section 173. as amended. By November 15, 1993, all “not-classified”
areas must submit rules to implement the new Part D NSR permit requirements of section 172(c)(5)
artds zio l73ofthe C.- AA. In the meantime, all existing NSR rules remain in effect. (See
npcoming NSR update package, expected fall 1992, and General Preamble [ 57 FR 13948] Section
ll1.G. See also Section V.B of this document.)
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The EPA will not require nonattainment NSR rules for “not-classified” areas that have submitted
a complete redesignation request that includes the appropriate air quality monitoring evidence that the
area is no longer violating the NAAQS. However, these areas 1 must continue to apply their existing
NSR program or comply with the NSR permitting requirements of 40 CFR Part 51, Appendix S.
f. Monitoring
Section 172(b) and (c) explicitly states that nonattainment areas should meet the “applicable”
monitoring requirements of section 1 1O(a)(2). This includes maintaining an ambient monitoring
network to assure that the NAAQS continue to be met at the problem locations in the area.
g. Contingency Measures
Since “not-classified” areas generally present less serious CO problems than Moderate areas, and
contingency measures are not likely to be necessary to assure attainment for these areas, EPA believes
it appropriate not to apply the requirement for contingency measures for these areas under a de
miniinis approach. This approach is authorized by Alabama Power v. Cosde (636 F.2d 323, 360-61,
404-05, DC Circuit 1980), which held that EPA may exempt de minimis actions from a statutory
requirement when the burdens of regulation would yield little or no value.
3. Aftainment Doles for Not-ClassWed Areas
Section 172(a)(2) requires an attainment date of no later than 5 years from an area’s
nonattainment designation. Since “not-classified” areas are deemed to have been designated on the
date of enactment of the CAAA (November 15, 1990), that attainment date is November 15, 1995.
If a complete redesignation request is submitted prior to the SIP submittal date, all future
effective SIP submittal requirements are invalidated.
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SECTION ifi
ADDITIONAL CO NONATTAINMENT AREA
REQUIREMENTS OR ISSUES
A. MULTISTATE Co NONAUAINMENT AREAS
1. Multistate Coordination
Section 187(e) establishes the requirements for muItistate CO nonattainment areas,” defined as
single CO nonattaininent areas that cover more than one State. Each State so affected must take all
reasonable steps to coordinate both the SIP revisions required and the implementation of SIP’s that
apply. Failure to take such coordination steps could result in EPA disapproval of SIP revisions
submitted under this section. Under section 187(e)(2), a State failing to provide a demonstration of
attainment for that State’s portion of a multistate CO nonattainment area may petition EPA to make a
finding that such a State could have demonstrated attainment, but for the failure of one or more other
States in the area to adequately implement measures required in the multistate CO plan. Such a
determination would absolve the State from the imposition of the section 179 sanctions under a
finding of failure to provide an adequate attainment demonstration.
2. Joint Work Plan
Each multistate CO nonattainment area should develop and submit to EPA a joint work plan to
demonstrate early cooperation and integration. The work plan should include a schedule for
developing the emissions inventories, the VMT forecasts, and the attainment demonstration (if
required) for the entire multistate area. The work plan can be in the form of a letter and cosigned by
ill States in the nonattainment area. The work plan should have been submitted by July 31, 1992.
Each State within a multistate CO nonattainment area is responsible for meeting the re uiremenIs
relevant to their portion of the nonattainment area.
3. Attainment Demonstration
In order to be sufficient to avoid a section 1 87(e)(2) finding of failure to demonstrate attainment,
an attainment demonstration must meet the requirements outlined in section 187(a)(7) which requires
areas to submit a plan showing that the CO NAAQS will be attained by the applicable attainment date
as well as provide for such specific annual emissions reductions as are necessary to attain the
standards by thai date. Moderate, multistate CO nonattainment areas with design values of 12.7 ppm
oir less.at die nn e of classification are not required to meet the requirements of developing an
attainment demi. nstration, as in section 187(a).
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B. RULE EFFECTLVENESS
While CO emissions are predominantly from mobile sources, some stationary source emissions
reductions may be creditable in a CO nonattainment strategy as a result of improved rule
effectiveness. However, rule effectiveness will apply only to a very limited subset of CO-emitting
sources — controlled stationary sources.
Rule effectiveness is a measure of the degree to which compliance with a rule is achieved across
sources and tune. The actual emissions reductions realized by a control program is a function of the
degree of rule effectiveness achieved. The rule effectiveness factors are applied to appropriate
sources in the SIP emissions inventory in order to obtain the most accurate estimate of actual
emissions. In order to adequately document rule effectiveness improvements, a rule effectiveness
study approved by EPA’s Stationary Source Compliance Division (SSCD) must be performed to
demonstrate the improvement.
A rule effectiveness study requires coordination between the State and EPA and will require both
a field inspection and an office investigation. The effectiveness ratio calculations will be based on a
comparison of actual emissions to the allowable emissions for sources included in the study. These
emissions must be documented as part of the field investigation phase of the study, and the
calculations must be based on emissions testing, sampling, and usage data identified for each source
during the investigation. A State may develop its own local category-specific rule effectiveness
factors, upon approval, instead of applying the 80 percent default figure. Procedures for determining
rule effectiveness are incorporated in a November 7, 1991 EPA draft, “Rule Effectiveness Study
Protocol and Procedures for Estimating and Applying Rule Effectiveness in Post-1987 Base Year
Emission Inventories for Ozone and Carbon Monoxide State Implementation Plans,” (EPA, OAQPS,
June 1989, revision due summer 1992) and in “Emission Inventory Requirements for Carbon
Monoxide State Implementation Plans” (EPA-450/4-91-01 1, March 1991).
C. AREAS WITH SIGNIFICANT STATIONARY SOURCES OF CO
Section 187(c)(3) calls for the Administrator to issue guidelines and rules for determining
whether stationary sources contribute significantly to CO levels in an area. In the case of a serious
area in which stationary sources contribute significantly to CO levels, section 187(c)(1) requires the
State to revise the definition of major stationary sources in that area to include any stationary source
that emits (or has the potential to emit) 50 tpy or more of CO.
A significant CO stationary source problem is determined through the results of dispersion
modeling of one or more stationary sources of CO in the area. (See guidance in EPA memorandum,
dated May 13, 1991, from William G. Laxton, Director, Technical Support Division, regarding
“Guidance for Determining Significant Stationary Sources of Carbon Monoxide.”) See section
187(c)(2) for CO nonattainthent areas where mobile source requirements do not contribute
significantly and section III.D. below.
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D. AREAS WITH LO V MOBILE SOURCE CO EMISSIONS
The waiver provisions of section 1 87(c)(2) provide the Administrator with discretionary authority
to waive certain mobile source requirements in both moderate and serious CO nonattainment areas
where mobile sources do not contribute significantly to CO nonattainment levels in the area.
Specifically, the Administrator may waive any requirements that pertain to transportation controls,
IIM, or oxygenated fuels on a case-by-case basis, where the Administrator determines by rule that the
mobile source contribution is convincingly demonstrated to be de minimis in relation to the cause of
the area’s overall CO problem.
The EPA will only consider granting a waiver from controls on mobile CO sources under section
I 87(c)(2) if it is clear that mobile source emissions in the aggregate are insignificant in the violating
areas, and if there is a SIP submittal demonstrating attainment of the CO NAAQS by the required
date without such mobile source controls. This would be in addition to a showing under section
1 87(c)(3) that stationary sources “contribute significantly to carbon monoxide levels in the area.” The
- attainment demonstration should use EPA-approved modeling techniques (i.e., a complete modeling
analysis is needed considering point, area, and mobile source emissions). The waiver would be
granted upon approval of the CO SIP. The State makes the request for a waiver at the submittal of
the CO SIP as part of the SIP. The waiver of mobile source measures would no longer apply if a
subsequent maintenance plan demonstration relied on such mobile source measures.
E. REDESIGNATION/RECLASSIFICATION
I. Moderate Areas That Do Not Attain (“Bump up”)
Under section 1 86(b)(2)(A), the Administrator must make a determination within 6 months
following the attainment date (December 31, 1995 for CO moderate areas classified on the date of
enactment) whether such areas attained the standard based on their quality-assured, publicly-available
design value as of the attainment date. Any moderate CO area that the Administrator finds has not
attained the standard by the attainment date will be reclassified as serious by operation of law. This
upward reclassification is termed “bump up.”
Upon reclassification to serious, an area must meet all applicable requirements for a serious CO
area under section 187(b). Under section 187(f) the Administrator may adjust any applicable
deadlines (other than the attainment date) where such deadlines are shown to be infeasible. December
31, 2000 becomes the area’s new attainment date.
States that have not attained, but have met all applicable requirements contained in their SIP’s
(provided that they have not exceeded the NAAQS more than once during the year of the attainment
deadline), may apply for up to two 1-year extensions of the attainment date under section 1 86(a)(4).
Such an application should be made as soon as the.necessary air quality data are available.
Under section 107(d)(3)(F), no nonattainment area (or any portion thereof) can be redesignated to
not-classified.
2. Section I 79B International Border Areas
t!Jnder Section 179B of the amended Act, an area that can demonstrate that it is affected by
foreign sources (e.g., Mexico), will not be “bumped up” if the area has met its own SIP
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requirements. To qualify, if a State must establish to the satisfaction of EPA that it would have
attained the CO NAAQS but foremissions emanating from outside the United States, it will not be
subject to the bump-up provisions for failure to attain for CO in section 186(b)(2).
The emissions inventory for modeling for such an area must include vehicle emissions occurring
in the United States that are generated by vehicles registered in an adjacent foreign country; such an
inventory must be completed by the State prior to modeling the United Sçates’ portion of emissions
and attempting to demonstrate attainment. Because very few areas are likely to be affected by this
provision, EPA will determine on a case-by-case basis whether the State has satisfactorily made the
required demonstration. (See General Preamble Section V.C [ 57 FR 139481.)
3. Redesignation from Nonattainment to Attainment
Redesignation to attainment can occur only upon the Administrator’s finding that the five
redesignation requirements of section 107(d)(3)(E) are met: (1) the area has met the NAAQS, (2) the
SIP has been fully approved under section 110(k), (3) the improvement in air quality is due to
permanent and enforceable reductions in emissions resulting from SIP implementation, (4) a
maintenance plan (section 175A) has been submitted and approved, and (5) the State containing such
area has met all requirements applicable to the area under section 110 and Part D. In addition, EPA
will not approve redesignations until the area has valid Part C Prevention of Significant Deterioration
(PSD) rules in place and has them approved.
Under section 107(d)(3)(D), the Governor may initiate redesignation independent of notification
by the Administrator. In such a case, the Administrator shall approve or deny such a designation
within 18 months of receipt of a complete State redesignation submittal. The existing SIP remains in
effect during this time.
4. Redesignation from Attainment to Nonattainment
Under section 107(d)(3), the Administrator may notify the State’s Governor that “on the basis of
air quality data, planning and control considerations, or any other air quality-related considerations
the Administrator deems appropriate,” the designation of an area should be revised to nonattainment.
Such a notice shall be made public. The Governor shall submit a nonattainment designation request
to the Administrator within 120 days of such a notification.
Under section 107(d)(3)(D), the Governor, on his/her own, may initiate designation, independent
of notification by the Administrator. In such a case, within 18 months of receipt of a State
nonattainment designation submittal, the Administrator shall approve or deny such a designation. The
existing SIP remains in effect for the affected area during this time.
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F. EXTENSIONS OF ATFAINMENT DATES
Section 186(a)(4) allows a State ti apply to the Administrator for an extension of the attainment
date by a period of 1’ year (the “extension year”), provided that the State has complied with all SIP
requirements and no more than one exceedance of the NAAQS for CO has occurred in the year
preceding the extension year. No more than two i-year extensions may be issued for a single
nonattainment area. The Administrator may take from 3 to 6 months into the next year to review the
necessary air quality data to make an extension determination.
G. MAINTENANCE PLANS
Section 175(A) requires that upon submission of a request for redesignation of a nonattainment
area under section 107(d), a State must also submit a SIP revision to provide for the maintenance of
the primary NAAQS for CO for at least 10 years after redesignation. The plan should contain all
those measures calculated as necessary to maintain attainment of the NAAQS. To ensure that the plan
extends 10 years from redesignation, the State should submit a maintenance plan that extends at least
12 years. (See “Ozone and Carbon Monoxide Areas Designated Nonattainment,” EPA, OAQPS,
October 26, 1991. The redesignation guidance will be issued at a future date.)
Subsequently, 8 years after redesignation of an area to attainment [ section 175(A)(b)], the State
shall submit to the Administrator an additional revision of the applicable SIP for maintaining the
primary NAAQS for 10 years after the expiration of the initial 10-year period. Until the maintenance
plan is approved and redesignation from nonattainment to attainment approved, the existing SIP
continues to apply.
Maintenance plans must include the contingency provisions, in section 175(A)(d), “as the
Administrator deems necessary to assure that the State will promptly correct any violation of the
standard which occurs after the redesignation of the areas as an attainment area.” At a minimum, the
contingency measures must contain any measures removed from the SIP during the redesignation
process because it was determined that such measures were not needed in the SIP in order to maintain
the standard.
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SECTION 1V
SIP-RELATED ISSUES
A. INTRODUCTION -
For areas with Co levels greater than 12.7 ppm, the SIP contains a control strategy aimed at
achieving attainment by a specified date. The control strategy is based on specific emissions
reductions that are either measured or carefully calculated under established procedures for making
emissions projections based on emissions inventories. The ability of a SIP to adequately reflect an
achievable control strategy and an attainable demonstration of compliance with the NAAQS rests upon
the State’s ability to develop adequate emissions inventories and models.
In some cases, EPA has pending SIP submissions. Generally, EPA would not act on SIP’s
submitted prior to the CAAA. However, if there are overlapping portions of pending SIP’s and the
required SIP’s of the CAAA, that part of the pending SIP that is still in force and applicable may be
acted upon. Areas that were designated as nonattainment areas prior to enactment of the CAAA and
had previous SIP requirements under the existing act will be subject to EPA action only as required
by the CAAA.
B. INVENTORY DEVELOPMENT AND UPDATING
1. Base Year Inventory
Section 187(a)(l) requires States in moderate and serious nonattainment areas to submit a
“comprehensive, accurate, current inventory of actual emissions from all sources” within 2 years of
enactment (November 15, 1992). The base year inventory represents actual, typical daily peak season
CO emissions. The peak CO season shall reflect the 3 consecutive months when peak CO air quality
concentrations occur (generally the winter months). For areas where winter is the peak CO season,
the 1990 base year inventory shall include the winter months beginning in 1989 and extending into
1990 (e.g., December 1989 and January and February 1990). All stationary point and area sources
and all highwaylnonroad mobile sources must be included in the inventory. A State is not required to
include vehicle emissions occurring in the United States generated from vehicles registered in the
adlacent foreign country in the base year inventory. (All States except California should use the
updated MOBILE4. 1 to estimate mobile source emissions in development of all 1990 base year.
inventories.) (See “Emission Inventory Requirements for Carbon Monoxide State Implementation
Plans,’ EPA, OAQPS, EPA-450/4-91-0l1, March 1991, issued January 1991.)
2. Periodic Ii tientory
A wding to s - un I S7’ a)(5), moderate (and serious) Co nonattainment areas are required to
submit periodic (revised base year) inventories by September 30, 1995, and then every 3 years
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thereafter until the area is redesignated as an attainment area. The periodic inventory represents
actual emissions. The first periodic inventory must be based on 1993 emission rate and activity level
information, section 187(a). (See “Emission Inventory Requirements for Carbon Monoxide State
Implementation Plans,” EPA, OAQPS, EPA-450/4-9 1-011, March 1991, issued January 1991.)
3. Modeling Inventoiy
Section 187(a)(7) and 187(d)(1) requires moderate nonattainment areas exceeding a design value
of 12.7 ppm to submit an attainment demonstration plan (by November 15, 1992) that demonstrates
attainment by December 31, 1995. To make the attainment demonstration, base year and projected
modeling inventories are needed. The base year modeling inventory will have a base year consistent
with the CO design value and the peak CO season, while the projected modeling inventory will have a
1995 base year. The projected modeling inventory will be used to determine if the proposed SIP
control strategies are adequate to reach attainment by the designated date. (See “Emission Inventory
Requirements for Carbon Monoxide State Implementation Plans,” EPA, OAQPS, EPA-45014-91-011,
March 1991 issued January 1991.)
Serious nonattainment areas must also submit an attainment demonstration plan (by November
15, 1992) which demonstrates how attainment will be achieved by no later than December 31, 2000.
As above, the base year modeling inventory will have a base year consistent with the CO design
value, while the projected modeling inventory will have a 2000 base year.
The CO base year modeling inventory shall represent actual emissions representative of the base
year episodes selected for modeling. Emissions are determined for an average, 24-hour operating day
during the peak CO season; thus the modeling inventory must be temporally allocated to hourly
values. Guidance on deriving hourly emissions estimates for the representative operating day in the
peak CO season can be obtained from the dispersion modeling guidance document “Procedures for the
Preparation of Emission Inventories for Carbon Monoxide and Precursors of Ozone, Volume II:
Emission Inventory Requirements for Photochemical Air Quality Simulation Models,” (EPA, OAQPS,
EPA-450-/4-4-91-014, May 1991.)
Spatial allocation of emissions over square grid cells varies with the model used (RAM model or
UAM) in that the choice of model will determine the appropriate grid square size. (See the
discussion in Section 3.4 of “Emission Inventory Requirements for Carbon Monoxide State
Implementation Plans,” EPA, OAQPS, EPA-450/4-91-O1 1, March 1991.) Further guidance on spatial
allocation can be found in Procedures for the Preparation of Emission Inventories for Carbon
Monoxide and Precursors of Ozone, Volume II : Emission Inventory Requirements for Photochemical
Air Quality Simulation Models” (EPA, OAQPS, EPA-450-/4-4 -91-014, May 1991.) (See details on
modeling in section IV.F of this document.)
4. Registration Distributions and MOBJLE4.1 Projections
Since MOBILES is not expected in final form until late summer 1992, leaving CO nonattainment
areas little time to use it for their attainment demonstrations (due November 15, 1992), these areas
should use MOBILE4. 1 instead of MOBILES for their projections. As a result, States will have to
make thanges to die vehicle registration distributions used for these projections. To do this, they can
either update the distributions for the projection year, based on local information, or provide EPA
with their current distributions, and EPA will supply an updated distribution figure for them.
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5. Other Inventory Issues
The following are the most recent guidance and documentation on emissions inventories:
1. “Procedures for Preparing Emission Projections” (EPA-45014-91-019, July 1991).
2. “Emission Inventory Requirements for Carbon Monoxide State Implementation Plans,”
(EPA-450/4-9 1-011, March 1991) a revision of “Emission Inventory Requirements for
Post-1987 Carbon Monoxide State Implementation Plans,” (EPA -450/4-88-020,
December 1988).
3. ‘Guidance for Initiating Ozone/CO SIP Emission Inventories Pursuant to the 1990
Clean Air Act Amendments,” (EPA, February 1991).
Some specific changes to note are:
• In the base year and periodic inventories, States will be required to report CO
emissions on a daily basis, rather than an 8-hour basis.
• The revised model, MOBILE 4.1, must be used to estimate highway vehicle
emissions for CAAA SIP inventories.
• All CO SIP emissions inventory data should be provided to EPA in an AIRS
(Aerometric Information Retrieval System) compatible format or directly into
AIRS.
• States with SIP emissions inventories prepared under the proposed post-1987
policy (52 FR 45044, November 24, 1987) that have 1987, 1988, or 1989 base
years and that have been determined by the EPA Regional Offices to be
complete, comprehensive, and accurate will be allowed to update certain
portions of these inventories to a 1990 base year instead of having to totally
redevelop the inventories with 1990 data.
• The periodic and modeling inventories are associated with tracking required
emissions reductions and attainment demonstration and are additions to the
post-1987 policy.
6. Additional References for Inventory Developnzent Updating
I. “Procedures for the Preparation of Emission Inventories for Carbon Monoxide and
Precursors of Ozone - Volume 1: General Guidance for Stationary Sources,” Third
edition (EPA, OAQPS, EPA-450/4-91-016, May 1991).
2. “Procedures for Emission Inventory Preparation, Volume IV: Mobile Sources,”
(EPA, OMS, EPA-450/4-81-026d, summer 1992).
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C. CONTROLS FOR STATIONARY SOURCES
Stationary source control information for CO is limited because the motor vehicle sector (and, in
some cases, residential wood combustion as area sources) is the major contributor to CO
nonattainment in most areas. Industrial CO controls have rarely been considered an important part of
urban area CO control plans. Industrial sources are controlled under the Act largely through NSR
(required in all CO nonattainment areas).
In limiting the States’ opportunities to set up a growth allowance, the CAAA establishes
emissions offsets as the primary regulatory mechanism for accommodating major new source growth
without jeopardizing the Act’s mandate for reasonable progress toward NAAQS attainment. The
basic requirement in section 173(a)(1) remains the same in that to issue a permit the State must
demonstrate that the new source growth does not interfere with the approved demonstration of
reasonable progress for the area. (See General Preamble (57 FR 13948] Section III G.2.)
A lowest achievable emission rate (LAER) is still required for major new or modified sources.
Section 172(c)(i) maintains the provision that CO areas develop RACM and reasonably available
control technology (RACT) controls for existing major sources (sources of 100 tpy or more). The
major stationary source definition lowers to 50 tpy in serious CO nonattainment areas if stationary
sources significantly contribute to the nonattainment problem. (For the development of RACM and
PACT controls, see “Control Technologies for CO Emissions,” EPA, OAQPS, EPA-45013-79006,
March 1979.)
1. Industrial CO Controls
Control information on industrial sources is limited. An EPA consultant, PEDCo, estimated the
costs and reductions for a number of industrial source CO controls for a national regulatory analysis.
(See letter and attachments from Donald I. Hens to Susan E. Schechter, PEDCo Environmental, Inc.,
Cincinnati, OH, May 14, 1979). Four general industry categories are covered.
1. Iron and Steel
2. Aluminum
3. Solid Waste Disposal
4. Chemicals
Most controls provide reductions of 90 to 99.5 percent. Table 1 is a compilation of the control
devices and efficiencies from this study. (See also “Control Technologies for CO Emissions,” EPA,
OAQPS, EPA-450/3-79006, March 1979.)
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Table 1
Industrial CO Controls
Representatii
Control
Efficiency
Source Category Control Measure (%)
Iron and Steel Industry
Basic Oxygen Furnace Open Hood System 95.0
Carbon Steel Electric Arc Furnace Direct Shell Evacuation 90.0
Coke Oven Charging Stage Charging 99.0
Gray Iron Cupola Thermal Incineration 90.0
Iron Ore Sinter Plant Windbox Incinerator 90.0
Solid Waste Disposal
Conical Wood Burner 02 Analyzer 50.0
Municipal Incinerator 02 Analyzer 50.0
Aluminum Industry
Aluminum Anode Baking Incinerator 99.0
Prebake Aluminum Cell Incinerator 99.0
Chemical Industry
Carbon Black Incinerator 99.5
Cyclohexanol Incinerator 98.0
Ethylene Dichioride Incinerator 98.0
Maleic Anhydrida Incinerator 98.0
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2. Residential Wood Burning
In 1988, EPA promulgated a new source performance standard (NSPS) for new residential wood
heaters (53 FR 5860, February 26, 1988). (See also “Regulatory Impact Analysis (RIA) Residential
Wood Heater NSPS,” EPA, December 1986.) The standard is structured in two phases and requires
wood stove manufacturers to have their units certified through laboratory testing to certain prescribed
(particulate matter) emission limits. The limits are increasingly stringent from phase Ito II.
The goal of the NSPS is to improve the performance of wood heaters nationwide. Three types of
units have been certified:
I. Catalytic — The catalyst provides for combustion at lower temperatures, thus reducing
emissions. The catalyst is a thin molded ceramic base coated with a slurry containing
palladium or platinum.
2. Noncatalytic — Noncatalytic units employ design features (e.g., secondary combustion
chambers) that enhance combustion by manipulating key parameters such as firebox
temperature, turbulence, residence time of combustion gases, and preheated secondary air.
3. Pellet’: Pellet stoves burn small cylindrical compressed pellets made from wood, sawdust,
and other biomass fuel. The pellets are fed to the firebox by a motorized auger which
allows the operator to control the rate of fuel feed.
The NSPS may not be sufficient in itself to bring about attainment in nonattainment areas for
particulate matter (PM-b) and CO where emissions from wood stoves and fireplaces are significant.
A document entitled “Guidance Document for Residential Wood Combustion Emission Control
Measures” (EPA, OAQPS, EPA-450/2-89-015, September 1989) describes measures available for
additional control in four areas: public education and awareness, improving wood burning
performance, reduction in use, and curtailment.
Public education and awareness include educating the public about the health effects of emissions
from wood burning and the need for controls to reduce unhealthful wood smoke concentrations.
Improving wood burning performance includes the converting of existing “conventional” stoves
to cleaner burning units. Such units include the three types that have been certified (catalytic,
noncatalytic, and pellet) and devices that have not been certified but which can document similar or
better emissions performance. Numerous “in-home” field test studies have documented the reduced
emissions of CO and PM-10 and enhanced efficiency of these types of certified devices. (See
Emission Factor Document for AP-42, Section 1.10, “Residential Wood Stoves,” December 1991.)
In addition, EPA has reviewed in-home field test data for devices not certified, such as masonry
stoves, that indicates improved emissions over uncontrolled wood stoves. (In both cases, the
appropriate type of data is in-home field test data (versus laboratory) that more accurately portrays
emissions included in nonattainment area emission inventories.)
Measures to reduce wood stove and fireplace use include programs to convert wood burners to
alternative lbrms of heat or fireplace technology (e.g., gas logs). Such measures also include
restrictions on the number and density of wood stoves and fireplaces in housing units.
‘Not all pellet stoves are certified. Some models are not affected” by the wood heater NSPS for failure to meet
all the applicability criteria, including a 35-2-I or less air-to-fuel ratio.
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Curtailment is a temporary measure to reduce wood burning over short periods of time when
atmospheric inversions trap wood-burning emissions and cause concentrations to reach levels well in
excess of the standards. The curtailment is usually for 24-hour periods.
D. CONTROLS FOR MOBILE SOURCES
Title I of the Act specifically mandates the following motor vehicle controls:
• Basic IIM in CO nonattainment areas with a design value of 12.7 ppm or less
(subject to section 187(a)(4) savings clause) and enhanced I/M in urbanized
areas within CO nonattainment areas with a design value above 12.7 ppm and
1980 populations of 200,000 or greater.
• Employer Trip Reduction Programs in serious CO areas; TCM’s in serious CO
areas and Denver.
Tide II of the Act mandates the following control measures:
• Oxygenated fuels in most CO nonattainment areas.
• New emission standards for light-duty trucks.
• Fleet clean fuel programs in CO areas with design values of at least 16.0 ppm
and population greater than 250,000.
• A federally mandated cold temperature CO standard.
I. Inspection and Maintenance
The EPA is preparing to propose a rule regarding both basic and enhanced I/M program
requirements for CO areas. The EPA currently favors the high-tech IIM option for an enhanced
program including a biennial centralized program with vehicles tested using a transient exhaust
emission test. The CO emissions reductions from enhanced l/M should be modeled using
MOBILE4. I (or MOBILES where available). The regulations will provide guidance on the final
program elements and on modeling inputs. -
2. Oxygenated Fuels
The oxygenated fuel requirements were proposed in “NPRM for Oxygenated Gasoline Labeling,”
“Proposed Guidelines for Oxygenated Gasoline Credit Programs,” and “Proposed Guidance on
Establishment of Control Periods by Area,” [ 56 FR 31149, July 9, 1991J. The oxygenated gasoline
program must require gasoline in the specified control area to contain not less than 2.7 percent
oxygen by weight, during that portion of the year in which the areas are prone to high ambient
concentrations of CO. The length of the control period is to be established by the Administrator and
shall not be less than 4 months in length unless a State can demonstrate that, because of
meteorological conditions, that a reduced period will assure that there will be no CO exceedances
outside of sasch ’ reduced period. These requirements are to generally cover all gasoline sold or
dispemat hzthe larger of the CMSA or the MSA in which the nonattainment area is located.
Howe a contiguous State need not establish a program for any portion of the CMSA which is in
the cautiguous State and is entirely in attainment. Emissions reductions from oxygenated fuels can be
modeled usfng MOBILE4. I. (See also “Proposed Waiver Guidelines for Oxygenated Gasoline
Waivers under section 21 l [ m) [ 3] [ cJ,” (56 FR 43593, September 3, 1991], “Supplemental Notice of
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Proposed Guidance on Establishment of Control Periods Under Section 211 [ ml of the CAA as
Amended,” [ 57 FR 4408, February 5, 19921 and “Proposed Guidelines for Oxygenated Gasoline
Credit Programs under section 211 [ ml of the CAA as Amended,” [ 57 FR 4413, February 5, 1992.])
Oxygenated gasoline is required for all States with CO nonattainment areas with design values of
9.5 ppm or greater based on 1988 and 1989 data. For areas that have CO design values of 9.5 ppm
or greater for any 2-year period after 1989, the Act requires that a revision to the SIP shall be
submitted within 18 months after the stated 2-year period.
3. Transportation Control Measures
The EPA is currently developing guidance on an assortment of TCM’s. The TCM’s attempt
either to increase vehicle speed by reducing congestion or to reduce VMT. Increasing vehicle speed
to no higher than 58 mph decreases the per-vehicle emissions of CO. Since total emissions are
directly proportional to VMT, decreasing VMT will decrease emissions. The EPA has published
information documents regarding 16 TCM’s identified in section 108 of the Act:
• Programs for improved public transit.
• Restriction of certain roads or lanes to, or construction of such roads or lanes
for use by, passenger buses or high-occupancy vehicles.
• Employer-based transportation management plans, including incentives.
• Trip-reduction ordinances.
• Traffic flow improvement programs that achieve emission reductions.
• Fringe and transportation corridor parking facilities serving multiple occupancy
vehicle programs or transit service.
• Programs to limit or restrict vehicle use in downtown areas or other areas of
emission concentration, particularly during periods of peak use.
• Programs for the provision of all forms of high-occupancy, shared-ride
services.
• Programs to limit portions of road surfaces or certain sections of the
metropolitan area to the use of non-motorized vehicles or pedestrian use, both
as to time and place.
• Programs for secure bicycle storage and other facilities, including bicycle
lanes, for the convenience and protection of bicyclists in both public and
private areas.
• Programs to control extended idling of vehicles.
• Programs to reduce motor vehicle emissions, consistent with Title II, which are
caused by extreme cold start conditions.
• Employer-sponsored programs to permit flexible work schedules.
• Programs and ordinances to facilitate non-automobile travel, provision and
utilization of mass transit, and to generally reduce the need for single-occupant
vehicle travel, as part of transportation planning and development efforts of a
locality, including programs and ordinances applicable to new shopping
cehters, special events, and other centers of vehicle activity.
• Programs for new construction and major reconstructions of paths, tracks, or
areas solely for the use by pedestrian or other non-motorized means of
transportation when economically feasible and in the public interest; and
• Programs to encourage the voluntary removal from use and the marketplace of
pre-1980 model light-duty vehicles and trucks.
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The EPA previously issued guidance on implementing TCM’s in SIP’s in 1990, including a list
of TCM reference documents (See “Revised Final Report: Transportation Control Measures State
Implementation Plan Guidance,” EPA, September 1990, and “Transportation Control Measure
Information Documents,” draft, EPA, OMS, October 1991). The U.S. Department of Transportation
(DOT) has also evaluated measures to relieve traffic congestion. (See “Evaluation of Travel Demand
Management Measures to Relieve Traffic Congestion,” DOT, FHWA, FHWA-SA-90-005, February
1990.) The TCM Information Documents, which provide a qualitative discussion of the 16 TCM’s
listed in section 108, will be available in the spring/summer of 1992. A Federal Register notice will
announce their availability.
The EPA’s Office of Mobile Sources (OMS) is producing a document tl at will estimate the
emission effects of TCM’s and changes in travel activity. A draft of this document is expected
summer 1992. In addition, EPA is developing a Best Practices Manual, also expected summer 1992.
This document will provide analytical guidance on a range of transportation issues, including TCM’s,
...from the practitioner’s perspective.
4. New Light-Duty Truck Emission Standards
Title II of the Act requires new trucks to meet a more stringent set of CO tailpipe emission
standards than the current set of standards. Light-duty trucks (LDT’s) with a gross vehicle weight
rating (GVWR) up to 6,000 lbs and a loaded vehicle weight (LVW) up to 3,750 lbs must meet a CO
standard of 3.4 g/mi with a 5-year or 50,000-mile useful life guarantee. This is the same as the
current standard for cars. The new standard for LDT’s with GVWR of up to 6,000 lbs and LVW of
3,751 - 5,750 lbs or LDT’s with GVWR of more than 6,000 lbs and a test weight (TW) of 3,151 to
5,750 lbs is 4.4 g/mi. The LDT’s over 6,000 lbs GVWR and over 5,750 lbs TW must meet a CO
standard of 5.0 g/mi. These standards are to be fully phased in by 1999 and can be modeled using
MOBILE4. 1.
5. Clean Fuel Vehicle Fleet Programs
Section 246(a)(2)(B) requires that all CO areas with a 1980 population of a least 250,000 and a
CO design value of at least 16.0 ppm submit SIP revisions providing for clean fuel vehicle fleet
programs by May 15, 1994. Areas where mobile sources are not a significant contributor to the
nonattatnment status may be able to obtain a waiver from the clean-fuel program. (See section m.D
of this document. Other areas may opt into this program.)
The fleet clean fuel program is phased in over 3 years beginning in the 1998 model year. More
stringent Phase II standards begin with model year 2001 (or earlier, depending on availability of clean
fuel vehicles).
The EPA will set the clean fuel fleet emission standard, guidelines for a credit program,
regulations for vehicle conversions to meet the standards, and regulations exempting these vehicles
from certain TCM’s. More information should be available as EPA proposes and finalizes the
standard. (See “Clean Fuel Fleet Credit Programs, TCM Exemptions, and Related Provisions,” [ 56
FR 501961 October 3, 1991.)
6 . told Temperature CO Standard
T?P EPA will require cars to achieve a 10 g/mi CO emission standard at 200 F, with a 5-year or
50,000-mile useful life guarantee for their emission control systems beginning with the 1994 model
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year. Comparable standards will be established for LDT’s. This requirement will be phased in over
3 years, with 40 percent of cars required to meet this standard in 1994, 80 percent in 1995, and 100
percent in 1996 and thereafter. The final rule for this is pending. (See the draft final rule [ 40 CFR
Part 86].) Cold temperature standards for LDT’s must be set by EPA at a level comparable in
stringency to the standard for cars. Emission benefits can be modeled using MOBILE4. 1.
7. Cahjàrnia Low Emission Vehide Program
The California low emission vehicle (LEV) program sets more stringent vehicle exhaust
standards. Compliance with these standards can be achieved with the use of advanced vehicle
emission control technology, clean burning fuels, or a combination of the two. Section 177 provides
the opportunity for individual States to require compliance with standards which are different than the
Federal standards, as long as such standards are identical to the California standards and are adopted
at least 2 years prior to commencement of the model year.
8. Federal Ther II Standards
The CAAA calls for EPA to determine whether or not more stringent standards for LDV’s
(LDV’s) and LDT’s should be established. These standards would become effective after model year
2003 but before model year 2006. Pending standards set forth in the CAAA are one-half of Tier I
levels. The study may examine standards more or less stringent than those suggested in the Act (but
more stringent than Tier I). Standards will be promulgated if: (1) there is a need for further
reductions, (2) the standards are technologically feasible, and (3) the reductions achievable through
these standards are cost effective.
The Act also contains provisions for Tier II cold start standards. If, as of June 1, 1997, six or
more nonattainment areas have a CO design value of 9.5 ppm or greater, the Tier II standards will
become effective. The Tier II LDV standard at 20” F lowers to 3.4 g/mi. Equivalent standards will
be established for LDT’s.
E. OThER MOBILE SOURCE CONTROL ISSUES
- The following mobile source categories may be included in SIP inventories under future-Federal
rulemaking.
1. Nonroad Engines and Vehicles
In November 1991, EPA completed a study that provides a full inventory of emissions from
nonroad engines and vehicles in 24 nonattainment areas. (See “Nonroad Engine and Vehicle
Emission Study — Report,” EPA, 21A-2001, November 1991.) This study was required by
section2 13(a) of the Act. If these sources are determined to be significant contributors to ozone or
CO concentrations in more than one nonattainment area, section 2 13(a) also requires EPA to regulate
these sources’ emissions within 12 months after completion of the study. The EPA will propose a
determination of significance for nonroad sources in the summer of 1992, along with its first
proposed regulations for these sources. Categories to be regulated are not yet determined.
Locomotives and aircraft were not part of the section 2 13(a) study, because the Act provides
separaidy for these categories.
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An EPA contractor is currently revising the inventories provided in the initial section 213(a)
study so that they co form to the final nonattainment area boundaries that were published in the
Federal Register on November 6, 1991. The contractor will also prepare nonroad inventories for
several additional serious and above ozone nonattainment areas and CO nonattainment areas with
design values greater than 12.7 ppm.
The revised, EPA-supplied inventories may be used directly in SIP submittals, though EPA will
also provide the methodologies used to construct the inventories so that an area may modify the
estimates based on additional, local activity rates. Estimates for recreational vessels in particular may
benefit from local information. The EPA will not supply commercial vessel inventories except for the
six areas inventoried in “Commercial Marine Vessel Contributions to Emission Inventories,” which
was prepared for EPA by Booz-Allen-Hamilton, Inc. in October, 1991. Other areas may construct
their own commercial vessel inventories using the methodology described in this report or the
methodology described in Chapter 7 of the 1989 version of Volume IV of “Procedures for Emission
Inventory Preparation.”
When preparing projections for nonroad inventories, States should refer to the document
“Procedures for Preparing Emission Projections,” (EPA, OAQPS, 450/4-91-019, July 1991). For
States other than California, growth and activity rates for nonroad equipment should not be offset by
assuming a decrease in emission factors at this time.
2. Locomotives
Diesel engine equipment has undergone significant modernization in the last decade leading to
downward trends in CO emissions. New engines are cleaner and more fuel efficient, and are serviced
more frequently. Decisions are scheduled to be made by EPA over the next 5 years about how to
regulate new locomotives. Because fleet turnover is slow, new standards will not have much of an
emission impact before 2000.
3. Aircraft
New aircraft emission standards for hydrocarbons (HC) were established in 1984. Design
changes necessary to meet these new standards have also resulted in a slight reduction in CO
emissions. (See “Procedures for Emission Inventory Preparation, Volume IV: Mobile Sources,”
Draft, Chapter 5: Emissions from Aircraft, EPA, October 30, 1991.) As the older aircraft are
phased out, additional reductions will result.
The CO emissions from aircraft are particularly high when the aircraft is operating in the
taxi/idle modes. Single-engine taxiing or reduced-engine taxiing can reduce emissions. Reducing taxi
and idle times for the aircraft will also reduce CO emissions.
F. MODELING ASSESSMENTS
Both urban areawide and hot spot intersection modeling are required for SIP attainment
deatonsrrations Urban areawide modeling is generally required to assess the mesoscale component of
the COprobkm . while h r spot modeling is required to assess microscale (i.e., localized) effects of
umgested inc rs ctions. Tr results of the urban areawide and hot spot intersection modeling need to
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be added together and the sum shown must be below the CO NAAQS to demonstrate attainment.
Other approaches for CO attainment demonstration may be approved on a case-by-case basis by EPA.
States are encouraged to consult their Regional Office.
The term “hot spot” refers to a small area where source and dispersion characteristics can lead to
very high concentrations of CO. A typical hot spot occurs Where motor vehicle traffic is high and
slow-moving due to congestion or traffic control devices. Hot spot modeling is recommended for CO
attainment demonstrations and CO maintenance plans.
1. Intersection
Modeling of CO for roadway intersection air quality analyses should follow the procedures
contained in “Guideline for Modeling Carbon Monoxide from Roadway Intersections,” (EPA, October
1990, under revision). The recommended hot spot intersection model is CAL3QHC. (See “User’s
- Guide for CAL3QHC, ” EPA, September 1990, under revision.) States conducting analyses prior to
the release of the revised modeling guidance should use the guidance currently available. Areas
conducting analyses after the release of the revised guidance should use the revised guidance. This
model combines CALINE3 dispersion with a traffic model to calcutate delays and queues that occur at
traffic intersections. The EPA is allowing the continued use of either the TEXIN2 or CALINE4
intersection models in areas where their use has been previously established. The mobile source
emission factor input to these models should be calculated through the use of the MOBILE4. 1 model.
2. Areawide Analyses
For areawide analyses, the recommended model is either RAM (see Catalano, J.A., D.B. Turner
and H. Novak, “User’s Guide for RAM,” 2nd ed., EPA, EPA/600/8-87/046, 1987) or the Urban
Airshed Model (see “Guideline for Regulatory Application of the Urban Airshed Model for Areawide
CO,” EPA, May 1992). The Urban Airshed Model (UAM) is the preferred areawide model for
stagnation situations.
Where point sources of CO are of concern, such as large steel plants, these sources should be
modeled using the screening and refined procedures described in Sections 4 and 5 of the “Guideline
on Air Quality Models,” (EPA, EPA-45012-78-027R, July 1986, under revision).
G. VMT CONSIDERATIONS
1. General Information
Section 187(a)(2)(A) requires that States with moderate and serious nonattainment areas with
design values greater than 12.7 ppm must submit a forecast of VMT for each year before the
attainment year in the SIP revision for CO submitted to EPA by November 1992 under section
187(a)(7). This includes annual updates of the forecasts, as well as annual evaluations as to the
accuracy of the forecasts. States should follow the guidance incorporated in “Section 187 VMT
Forecasting and Tracking Guidance” (EPA, March 1992, issued January 1992). States that wish to
develop alternative forecasting and tracking methods must demonstrate technical equivalency to the
guidance.
Motor vehicles are the dominant source of CO in most nonanainment areas. The CO emissions
from highway motor vehicles are a product of gram-per-mile emission factors (reflecting periods both
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of travel at certain speeds and parking) and the number of miles driven. The emission factors are a
function of trip length and traffic flow, with average traffic speed being the most common indicator of
flow. The more VMT growth there is likely to be in an area, the more effort is required to reduce
both per-vehicle and stationary source emissions to attain the ambient CO standard by the required
deadlines. Consequently, the CO attainment plan is built largely around forecasted VMT in the
attainment year.
Approvable CO nonattainment SIP’s must contain a good tracking system and contingency
measures to hedge against uncertainty in the initial VMT forecasts by providing for detection of
deviations from the forecast and potential mid-course corrections prior to the attainment date. In
particular, EPA guidance calls for the use of systematic traffic ground counts as the underlying data
for estimates in the future of actual VMT, at least in the urbanized area.
2. Repoifing
The statutory requirement for annual VMT reports suggests that Càngress intended the reports,
and any action that they indicate is necessary, to be completed reasonably soon after the close of the
reporting period. Annual reports on actual VMT and subsequent forecasts should be submitted
annually no later than each September 30. Since most States now submit Highway Performance
Monitoring System (HPMS) data reports to the Federal Highway Administration (FHWA) around
June 30, this time line allows States additional time to respond to FHWA data validity questions, and
to prepare updated projections, projected-versus-actual comparisons, and other elements for the report
to EPA. The first forecast includes the year 1993 and each year prior to the year of attainment.
Annual reports must contain estimates of actual VMT in the nonattainment area in each year for
which a forecast is required.
In accordance with section 187(d)(1), States containing serious CO nonattainment areas must also
submit (by March 31, 1996) a demonstration that emission reductions achieved by December 31,
1995, were as expected in the SIP. Data to estimate actual 1995 VMT may not be available this
early, in which case the most recent forecast of 1995 VMT may be used.
The SIP should identify the organization responsible for submitting these reports. Pursuant to
section 121, the SIP must provide for consultation among all affected agencies, including, but not
limited to, the State Department of Transportation, local metropolitan planning organizations, the
State Department of Environment (or its equivalent), local air agencies, and local councils of
government.
Each annual report should provide a comprehensive history of VMT forecasts and estimates of
actual VMT. The report submitted on September 30, 1994 should also contain the original 1993,
1994, and 1995 VMT forecasts, as well as updated forecasts of 1994 and 1995 VMT. Any changes
in boundaries should be accounted for in such reports. (See NSection 187 VMT Forecasting and
Tracking Guidance,” EPA, March 1992, issued January 1992, for checklist of documentation required
with the annual reports.)
Each State containing a moderate or a serious CO nonattainment area with a design value greater
than 12.7 ppm at the time of classification should commit in its SIP to keeping all information
supporting the annc .il reporrs referred to in this section for 3 years and to allowing EPA to audit that
supporting inforrnan n. Su.n an audit would be conducted in consultation with FHWA.
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3. Tracking
The EPA specifies the use of the HPMS for purposes of tracking 1993 and later year VMT.
With this approach, traffic counts taken at various points on an urban area’s road network are directly
expanded into an estimate of areawide VMT using statistics on the number of roadway miles
associated with each sampling section. Since HPMS will be used to track VMT after 1990, areas
using a network model to estimate 1990 VMT must accept the risk entailed in comparing data derived
from two different estimation methods, recognizing that the discrepancy may not be apparent until the
later HPMS data are reported.
Since the HPMS system cannot spatially resolve VMT within the boundaries of the FHWA-
defined Federal Aid Urbanized Area, and since the Federal Aid Urbanized Area, in turn, may not
fully encompass the nonattainment area and generally does not follow political subdivisions, States
should identify a VMT tracking area for purposes of VMT forecasting and tracking. aSection 187
VMT Forecasting and Tracking Guidance, (EPA, March 1992, issued January 1992) defines a VMT
tracking area.
4. Forecasting
By November 15, 1992, all States containing moderate and/or serious CO nonattainment areas
with design values greater than 12.7 ppm at the time of classification must forecast annual VMT for
each year from 1993 until the year in which the SIP forecasts attainment.
Since moderate nonattainment areas must attain the primary NAAQS for CO by December 31,
1995, an affected State must forecast 1993, 1994, and 1995 VMT by November 15, 1992, unless the
SIP demonstrates that the area will reach attainment prior to 1995, in which case the State only needs
to forecast VMT through the year of attainment.
Since serious nonattainment areas must attain the primary NAAQS for CO by December 31,
2000, a State containing an area classified as a serious nonattainment area must forecast 1993, 1994,
1995, 1996, 1997, 1998, 1999, and 2000 VMT by November 15, 1992, unless the SIP demonstrates
that the area will reach attainment prior to 2000, in which case no forecast is required for years after
the attainment date.
All States containing a serious CO nonattainment area (currently only the Los Angeles South
Coast Air Basin nonattainment area is so classified) should forecast VMT in the VMT tracking area
by applying growth factors, based on a validated network-based travel demand modeling process (the
Network Travel Demand Model MethodN), to the actual annual 1990 VMT. (See Section 3.0 and 4.2
of section 187 VMT Forecasting and Tracking Guidance, EPA, March 1992, issued January 1992.)
All States containing a moderate CO nonattainment area with a design value greater than 12.7
ppm at the time of classification should forecast VMT in the VMT tracking area by the method just
described for serious CO areas if validated travel demand models are currently availabli, or if such
models could be made available in time to allow the required SIP revisions and submissions. If the
validated travel demand model is unavailable, the State may submit a request to the EPA Regional
Administrator for an EPA commitment to propose approval of a SIP based on the Historical VMT
Method. (See Section 4.3 of section 187 “VMT Forecasting and Tracking Guidance,” EPA, March
1992. issued January 1992.) The EPA Regional Administrator will review the request in consultation
with the FHWA regional office and will attempt to respond to the request within 30 days.
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Affected States that track actual VMT using an HPMS-like alternative for a VMT tracking area
smaller than the full urbanized area, and do not use the network model method for forecasting, should
use historical data from the alternative counting program to forecast growth, if data were collected in
the 1985-1990 period. If not, the State should justify some other forecasting method as being
reliable, or forego use of the alternative HPMS-like method. (See Section 4.3 of section 187 “VMT
Forecasting and Tracking Guidance, EPA, March 1992, issued January 1992.)
5. Contingency Measures
•The VMT forecast for the attainment year is the basis for the area’s attainment demonstration.
Section 1 87(a)(3) requires that a State subject to the VMT forecasting/tracking provision must provide
in its SIP for the implementation of contingency measures if the annual estimate of actual VMT or a
subsequent VMT forecast exceeds the last forecast of VMT or if the area fails to attain the CO -
NAAQS by the attainment date. For CO areas with design values of 12.7 ppm or less, contingency
measures are needed to satisfy the provisions under section 172(c)(9) and are due by November 15,
1993, as set by EPA under section 172(b). These provisions require contingency measures to be
implemented in the event that an area fails to attain by the applicable attainment date. All
contingency measures for CO areas with design values above 12.7 ppm must be adopted and
enforceable and submitted to EPA by November 15, 1992, as set by EPA under section 172(b).
Contingency measures, once triggered, are to take effect automatically, without further rule-
making action by the State or the Administrator. Certain actions, such as notification of sources,
modification of permits, etc., would probably be needed before a measure could be implemented
effectively. States must show that their contingency measures can be implemented with minimal
further action on their part and with no additional rulemaking actions. (See General Preamble, 57 FR
13948, Section III.B.2.b.)
The EPA concludes that, to be beneficial, contingency measures must be implemented within 12
months following the finding of failure to attain the CO NAAQS — after the finding that actual VMT
or newly forecasted VMT exceeds previously forecasted VMT. Contingency measures for CO areas
should achieve emissions reductions to counteract the effect of 1 year’s growth in VMT. Therefore,
States should be aware that late implementation of contingency measures may result in the failure to
achieve the requisite level of emissions reductions. The examples listed in Section II.B.7 of this
document are merely suggestions. States should select contingency measures which can be
implemented within the 12-month period following the failure.
H. SERIOUS AREA ISSUES
1. Milestone Demonstration
By March 31, 1996, all States containing serious CO nonattaininent areas must submit to the
Administrator a “milestone demonstration that the area has achieved the specific emissions reductions
required by December 31, 1995. This is to ensure that a serious area is well on track toward meeting
the attainment date of December 31, 2000. Affected States should use the annual VMT forecasts
developed in accordance with VMT forecasts for the 1992 SIP submittal as the starting point for the
serious area mi estone inventory required under section 187(d)(1). The Administrator shall determine
whether or no a State’s demonstration is adequate within 90 days after the Administrator’s receipt of
a demonstration containing all information required by the Administrator.
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Failure to meet the milestone demonstration will necessitate submission of a plan revision within
9 months after such failure. The State shall submit a plan revision as required under section
187(d)(3) to implement an economic incentive and transportation control program, as described under
section 1 82(g)(4) in order to meet the emissions reductions of the December 31, 2000 attainment date.
Economic incei tives and transportation control programs are required for failure to submit a
milestone demonstration, failure to meet the milestone, or failure to attain the standard by the
applicable attainment date. A State should anticipate any such failures and begin to develop such
programs as soon as possible, without waiting for such failure to occur.
2. TranspoiWlion Control Measures
Serious CO areas (and Denver, Colorado) must adopt and implement enforceable TCM’s to
offset any growth in emissions from growth in VMT and, in conjunction with other control measures,
as necessary to comply with the periodic emissions reduction requirements of the CAAA. The
TCM’s, which are required to offset any growth in emissions from growth in VMT and number of
vehicle trips and to achieve necessary reductions in mobile source emissions, are due by November
15, 1992. States should choose from the list of TCM’s and other measures in section 108(t). These
requirements are contained in section 187(b)(2) for CO areas and section 187(a)(2)(B) for Denver.
All serious CO areas covered by the clean fuel vehicle fleet program (except for areas in New
York State, should any such area ultimately be bumped to serious), as well as Denver, must explain
why any section 108(f) measure is not adopted, what proposed emission reduction measures will
provide comparable reductions, or why such reductions are not necessary to attain the CO NAAQS.
This requirement may be met by an attainment demonstration, using EPA modeling techniques, that
shows the other adopted control measures are sufficient to provide for attainment by the required
date. (See “Guidance on Air Quality Models,” revised, EPA, EPA-450/2-78-027R, July 1986.)
This later requirement must be met by any serious CO area meeting the section 246 definition of
“covered area.” Section 246 defines “covered areas” as areas with a CO design value of 16 ppm or
greater, excluding those areas in which mobile sources do not contribute significantly to CO
exceedances. Currently, this requirement would apply to the Denver and Los Angeles areas. Areas
that are not “covered areas” are not required by this provision to justify their rejection of TCM’s.
(See General Preamble, 57 FR 13948, Section lII.B.3.b.)
The EPA is developing further guidance on the quantification of TCM’s. Either OMS or the
Regional Offices should be consulted.
3. Clean Fuel Vehicle fleet Programs
Section 246(a)(2)(B) requires that all CO nonattainment areas with 1980 populations of 250,000
or more and design values of 16.0 ppm or greater submit SIP revisions providing for clean fuel
vehicle fleet programs by May 15, 1994. The programs must require a specified percentage of fleet
vehicles in model year 1998 and thereafter to be clean fuel vehicles that use only clean alternative
fuels when operating in the area.
For LDV’s and LDT’s, the required percentage must be 30 percent in 1998, 50 percent in 1999,
and 7O percent in 2000 and thereafter. For heavy-duty trucks, the percentage must be 50 percent in
each of the respective years. Light-duty vehicles and LDT’s in fleets participating in this program for
these model years must also meet the Title II clean fuel vehicle standards for model year 2001. If
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LDV’s and LDT’s of 6,000 lbs GVWR or less are not available in California before model year
2001, the phase-in schedules will be delayed accordingly.
Some of the major program requirements include the fbllowing: that the fuel providers make
clean alternative fuel available to fleet operators; that Federal fleets (except certain vehicles certified
by the Secretary of Defense as needing an exemption based on national security grounds) be included
in the program; and that credits consistent with EPA regulations due 1 year from enactment be issued
for (I) purchasing more vehicles than required, (2) purchasing vehicles that exceed the established
standards, or (3) purchasing vehicles prior to the effective date of the program. In addition, certain
TCM’s may not apply to covered fleet vehicles consistent with EPA regulations.
I. CONTINGENCY MEASURES
I. ImpleinentWion of Measures
By November 15, 1992, a State containing a moderate and/or a serious CO nonattainment area
with a design value greater than 12.7 ppm at the time of classification must commit in its SIP to
implement specific measures if any estimate of VMT in the area or a subsequent VMT forecast
exceeds the number predicted in the most recent prior forecast or if the area fails to attain the CO
NAAQS. Such measures take effect automatically without further action by the State or the
Administrator.
The CAAA do not specify how many contingency measures are needed or the magnitude of
emission reductions (or VMT reductions) they must provide. The EPA believes that, for serious
nonattainment areas, a logical contingency measure for failure to attain by the attainment date would
be the adoption of a requirement for a minimum 3.1 percent oxygen content of gasoline subject to the
waiver provisions in section 21 1(m)(3). This suggested contingency measure parallels the
requirement under section 211 (m)(7) for serious areas which fail to attain the CO NAAQS by
December 31, 2000, to adopt and implement an oxygenated fuels program of at least 3.1 percent.
For serious areas that fail to meet rate of progress requirements, for moderate areas that fail to attain
by the attainment date, and for all areas that exceed a VMT forecast, States may select contingency
measures for the reduction of CO emissions. (See General Preamble, 57 FR 13948.) For additional
contingency measure examples, refer to Section 1I.B.7 of this document.
The EPA interprets the requirement for contingency measures to “take effect without further
action by the State or the Administrator” to mean that no further rulemaking activities by the State or
EPA would be needed to implement the measures. Certain actions, such as notification of sources,
modification of permits, etc., would probably be needed before a measure could be implemented
effectively. States must show that their contingency measures can be implemented with minimal
further action on their part and with no additional rulemaking actions. In general, EPA will expect
all actions needed to effect full implementation of the measures to occur within 60 days after EPA
notifies the State of its failure.
2.. Inleraction with VMT Offtets
The EPA believes that, for an exceedance of a VMT forecast, one appropriate choice of
continge c measures would be to provide for the implementation of sufficient VMT reductions or
emissions reductions to counteract the effect of 1 year’s growth in VMT while the State revised Its
SIP (including VMT projections) to provide for attainment by the applicable date. These measures
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may offset either the excess VMT in the nonattainment area or the additional CO emissions in the
area that are attributable to the additional VMT. Since EPA will requ.ire the State to revise its SIP
within 1 year of finding that VMT levels are exceeding forecasts, the contingency measures should be
capable of reducing VMT or resultant emissions by an amount equal to the projected annual growth
rate for VMT. In other words, if VMT is expected to increase at a rate of 2 percent per year, the
contingency measures under this alternative should be capable of reducing future VMT (or offsetting
VMT growth) by 2 percent.
3. Mw in of Error
The need to preserve the integrity of the attainment demonstration and tci react to unexpected
VMT growth must be balanced against the desirability of preventing a false trigger of the contingency
measures caused by the uncertainty in the VMT estimation and reforecasting processes. This
uncertainty can result in a merely transitory appearance in 1 year that actual or newly reforecasted
VMT exceeds the original VMT forecast, with the situation reversing in the next year or the year
thereafter.
The sampling and non-sampling error inherent in HPMS points to a practical and theoretical need
for a margin of error around VMT estimates and forecasts so that contingencies are not triggered for
small, and possibly random, deviations from forecasted VMT. At the same time, actual annual VMT
cannot be allowed to creep above the original attainment-producing forecast without limit. Though
successively higher forecasts may remain within the established margin of error compared to the
previous forecasts, they could, in fact, be drifting further and further from the original forecast.
In order for a margin of error to serve the purpose of preventing a false trigger of contingency
measures without allowing unchecked VMT growth, actual annual VMT and later forecasts should
never be allowed to be more than the defined margin above the forecast that is the basis for an
approved attainment demonstration. The use of an attainment-producing forecast as the base for
•.measuring deviations ensures that growth in VMT remains consistent with the attainment
demonstration (except for a de minimis deviation), or, if it does not, that contingency measures are
triggered.
Consequently, contingency measures will be triggered upon a finding by EPA that an estimate of
actual annual VMT or an updated VMT forecast exceeds the most recent prior VMT forecasts by
more than 5.0 percent in 1994, 4.0 percent in 1995, and 3.0 percent thereafter. These declining
percentages are based on expected improvements that will be made in calculation of VMT.
Contingency measures will also be triggered even if the margin of error is less than the specified
percentage for that year if, cumulatively, estimates of actual VMT or VMT forecasts exceed the VMT
forecast relied upon in the attainment demonstration for the area by more than 5.0 percent. (See
General Preamble 57 FR 13948.)
J. LONG-TERM CONTROL MEASURES AND STRATEGIES
Some serious CO nonanainment areas (and perhaps areas with long-term attainment dates for
other pollutants) may need additional time to fully develop and adopt certain ‘Iong-term” measures
that would be the preferred means to reach attainment. These measures would include those that
require complex analyses and decision making and coordination among a number of government
agencies.
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Such areas will be allowed reasonable additional time to complete full development and adoption
under the following conditions: (1) the plan containing the demonstration of attainment must identify
each measure for which additional time would be needed for full development and adoption, (2) the
plan must show that the long-term measures cannot be fully developed and adopted by the submittal
date for the attainment demonstration, (3) the plan must contain an enforceable commitment by the
relevant agency that development and adoption will occur on an expeditious schedule to achieve
specified emissions reductions from each long-term measure for each year through the attainment
year, (4) the plan must contain “backstop” measures that would be implemented to achieve equivalent
emissions reductions unless the long-term measure is adopted on schedule, and (5) the long-term
measures must not be needed to meet any emission reduction requirement during the first 6 years
after enactment. -
The “backstop” measures required under condition 4 must be submitted with the 1992 attainment
demonstration in fully adopted form. The “backstop” measures must be designed to go into effect
automatically on a schedule sufficient to achieve all of the reductions identified with each long-term
measure for each year through the attainment year. The “backstop” measures may represent broad,
across-the-board reductions in emissions, rather than thoroughly analyzed and developed control
measures. For this reason, EPA does not anticipate the actual implementation of “backstop” measures
in most cases, as States will have ample opportunity to submit SIP revisions incorporating the fully
developed long-term measures and to delete the “backstop” measures from the SIP. Additionally, if a
long-term measure cannot be developed, then the State has the option of submitting a SIP revision
identifying a fully developed and adopted alternative measure to replace the original long-term
measure prior to any necessary implementation of “backstop” measures.
Thus, a State may find that progress can be achieved with measures that are fully developed by
the 1992 SIP submittal date. However, the State may determine that expeditious attainment of the
NAAQS is impossible, unless the SIP also includes measures which cannot be fully developed until
after the 1992 SIP is due. In its 1992 SIP submittal, the State must clearly describe each of these
long-term measures and show that each measure cannot be fully developed and adopted until a
specified future date, despite expeditious implementation efforts. The 1992 SIP must include with
each long-term measure an enforceable schedule binding responsible agencies to achieve identified
emissions reductions from each measure.
- Along with these provisions, the State’s 1992 SIP submittal must include “backstop” measures.
The “baekstop” measures must be fully adopted and scheduled for implementation to achieve
reductions equivalent to those assigned each year by the long-term measures. When each long-term
measure is fully developed, it must be submitted to EPA as a SIP amendment. This amendment
would also propose deletion of the associated “backstops.” The EPA’s approval of the long-term
measures would also rescind from the SIP the “backstop” measures.
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SECTION V
THE RELATIONSHIP OF THE CO SIP WITH OTHER
CAAA PROVISIONS
A. TITLE II: MOTOR VEHICLES
1. On-Board Diagnostics
Section 202 requires the manufacturers’ installation of on-board diagnostic systems on new
LDV’s and LDT’s, beginning with model year 1994. States that have SIP’s containing JIM programs
must amend their plans within 2 years of EPA requiring them to do so, to provide for inspection of
on-board diagnostic systems. (See “Notice of Proposed Rulemaking on On-Board Diagnostics,” [ 56
FR 48272]. Final rulemaking expected July 1992.)
2. Oxygenated Fuels
Section 2 11(m) requires CO nonattainment areas with a design value of 9.5 ppm or greater
(based on the 2-year period of 1988 and 1989) to submit a SIP revision to implement the use of
oxygenated fuels (see section 187(b)(3)]. Such provisions apply to fuel retailers in the larger of the
CMSA’s in which the nonattainment area is located or, if the area is not located in a CMSA, the
MSA in which the area is located. However, a contiguous State need not establish a program for any
portion of the CMSA which is in the contiguous State and is entirely in attainment. For any town
included in a CMSA subject to the “oxyfuel” provisions, the entire county will be subject to the
oxyfuel program. The oxygenated gasoline program must require gasoline in the specified control
area to contain not less than 2.7 percent oxygen by weight, during that portion of the year in which
the areas are prone to high ambient concentration of CO. The length of the control period is to be
established by the Administrator and shall not be less than 4 months in length unless a State can
demonstrate that, because of.meteorological conditions, that a reduced period will assure that there
will be no CO exceedances outside of such reduced period. (Waivers for a shorter period must be
submitted by the Governor and demonstrated to the Administrator and must include meteorological
data.) A waiver to section 2 11(m) may be granted by the Administrator upon a State’s demonstration
that such requirements would prevent or interfere with the attainment of the primary NAAQS for any
air pollutant other than CO, or upon demonstration of inadequate supply of the oxygenated fuel.
During the period when section 211(m) (2) applies, trade in marketable oxygen credits from
gasolines with higher oxygen content than required to offset the sale or use of gasoline with a lower
oxygen content than required will be permitted. However, no credits may be transferred between
nonanainment areas. Although EPA strongly recommends zhct States adopt credit programs, such
uredit pro ms are still optional for States to adopt. A Stau may adopt a per-gallon 2.7 percent
ni quirein at as its option.
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Upon failure of a serious CO nonattainment area to achieve attainment by the specified
attainment date, the State shall submit a plan revision for the area providing for the implementation of
3.1 percent oxygenated fuel. (See “Oxygenated Fuels Labeling Regulations-Notice of Proposed
Regulations,” [ 56 FR 31148, July 9, 1991]; “Supplemental Notice of Proposed Guidance on
Establishment of Control Periods Under Section 211(m) of the CAA as Amended,” (57 FR 4408,
February 5, 1992]; and “Proposed Guidelines for Oxygenated Gasoline Credit Programs under
section2ll(m) of the CAA as Amended,” [ 57 FR 4413, February 5, 1992].)
3. a Fuel Vehicle Reets
Section 246(a)(2)(B) requires all CO nonattainment areas with a 1980 population of 250,000 or
more and a design value of 16.0 ppm or greater to provide for clean fuel vehicle fleet programs no
later than May 15, 1994. The programs must require a specified percentage of fleet vehicles in
model year 1998 and thereafter to be clean fuel vehicles and use clean alternative fuels when
operating in the nonattainment area.
B. NEW SOURCE REVIEW
The EPA is in the process of amending its NSR regulations to reflect the changes mandated by
the CAAA. For guidance on offsets, refer to the upcoming NSR update package (expected fall 1992).
In the meantime, this section is meant to provide the minimum statutory requirements States must use
to revise their existing NSR nonattainment permit pian provisions. While the NSR provisions can
lead to construction bans and increased emissions offsets for new and modifying sources, these
sources are generally not the predominant contributors to CO nonattainment. Nonetheless, CO
nonattainment areas must meet NSR requirements. (See General Preamble, 57 FR 13948, Section
!I1.G.)
The CAAA require States to adopt SIP revisions subject to EPA approval that incorporate the
new preconstruction permitting requirements for new and modified sources. The EPA has previously
announced its interpretation that the new NSR requirements did not go into effect with passage of the
CAAA, but rather become effective in accordance with the schedule for State adoption of SIP
jevisions. (See J. Seitz memo, “New Source Review (NSR) Program Transitional Guidance,” p.6,
March 11, 1991.) New rules for most CO nonattainment areas are due 3 years from the date of
nonattainment designation.
If these deadlines pass without States submitting NSR revisions, EPA may impose sanctions on
delinquent States. The sanctions include reducing a State’s highway funds, sectionhl9(b)(1), or
increasing emissions off ets (to at least 2 to 1) for new and modified sources, section 179(b)(2). In
addition to imposing sanctions, EPA is also required to promulgate a F l? when it finds that a State
has failed to make a required SIP submittal or has made an incomplete submission. Finally, EPA
may impose a construction ban where the Administrator determines that a State “is not acting in
compliance with any requirement or prohibition of the Act relating to the construction of new sources
or the modification of existing sources. . . “ [ CAAA section 1 13(a)(5)I.
C. ECONOMIC INCENTIVE PROGRAMS
The use of economic incentives are explicitly allowed for in the general SIP requirements [ Section
I IO(a)(2)J, the general provisions for nonattainment SIP’s [ section 172(c)(6) ], and in the system of
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regulations for controlling emissions from consumer or commercial products [ section 183(e)(4)J. In
some cases,,economic incentives are mandated such as upon State failure to submit a milestone
demonstration or to meet a required specific emission reduction milestone, or for serious CO
nonattainment areas to attain the standard. [ See section 187(d)(3) and 187(g)J. States are encouraged
to incorporate economic incentive programs as early as possible, even in anticipation of attainment or
milestone failure.
Section 182(g)(4)(A) defines a State economic incentive program as one that is consistent with
EPA rules (expected in November 1992). Although section 182(g)(4) refers to ozone economic
incentive programs, this definition also applies to economic incentive programs for CO. Such
programs may include systems of emission fees, marketable permits, or State fees on the sale or
manufacture of products, as well as incentives and requirements to reduce vehicle emissions and
VMT, including any of the transportation control measures in section 108(f).
It is expected that the Economic Incentive Program (EIP) rules will be broadly applicable to any
type of EIP, and will provide flexibility to States in the development of innovative, market-based
programs for permitted stationary, area, and mobile sources. The EIP rules will require that EIP’s
submitted by States for approval to the EPA as part of a SIP for a nonartainment area contain design
features that will ensure that emissions reductions credited to the program will be quantifiable and
consistent with the SIP attainment and RFP demonstrations; any credited emissions reductions will be
surplus to reductions required by, and credited to, other implementation plan provisions to avoid
double counting of reductions; programs are federally enforceable and that credited reductions are
permanent within the timeframe specified within the program; and no interference with other
requirements of the Act will occur. The proposed rules will identify key program provisions which
must generally be included to ensure that the above requirements will be met. However, it is not
expected that the rules will limit flexibility and innovation beyond those constraints that are necessary
to meet these requirements.
D. CONFORMITY
Section 176(c) provides the framework for ensuring that Federal actions conform to air quality
plans under section 110. Before any agency, department, or instrumentality of the Federal
Government engages in, supports in any way, provides financial assistance for, licenses, permits; or
approves any activity, that agency has an affirmative responsibility to ensure that such action
conforms to the applicable implementation plan (e.g., SIP, FIP, Tribal Implementation Plan). (See
“Guidance for Determining Conformity of Transportation Plans, Programs and Projects with Clean
Air Act Implementation Plans During Phase 1 of the Interim Period,” EPA and DOT, June 1991.)
The Notice of Proposed Rulemaking (NPR) for conformity is expected in the fall of 1992. The intent
of the conformity provisions is to ensure that air quality considerations play a greater role in federally
supported transportation planning efforts as well as other Federal activities. (See General Preamble,
57 FR 13948, Section 111.11.2.)
Conformity to an implementation plan means that proposed activities must not (1) cause or
contribute to any new violation of any standard in any area, (2) increase the frequency or severity of
any. existing violation of any standard in any area, or (3) delay timely attainment of any standard or
any. required interim emission reductions or other milestones in any area. Once EPA promulgates
transporration conformity to FHWA and Federal Transit Administration (FTA) regulations, each State
must submit a SIP revision to EPA and DOT, indicating the procedures by which conformity
assessments will be made. The EPA’s rule establishing the criteria and procedures for determining
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general conformity will require each State to submit a SIP revision to EPA establishing conformity
procedures consistent with the rule.
I. Interim Period
Until the effective date of the EPA final rule establishing the criteria and procedures for
determining conformity, transportation conformity should be determined according to “Guidance for
Determining Conformity of Transportation Plans, Programs and Projects with Clean Air Act
Implementation Plans During Phase I of the Interim Period,” (EPA/DOT, June 1991). During the
period between the effective date of EPA’s final rule and the approval of SIP revisions demonstrating
RFP and attainment (Phase II of the interim period), the transportation conformity criteria will be
consislent with section 176(c)(3).
2. Emission Budgets for Transpoilation Conformity
For nonattainment areas required to demonstrate RFP and attainment, the SIP revision will
contain statements of the motor vehicle emissions on which the demonstrations are based. These
statements will become the “emission budgets” (for the criteria pollutant and its precursors) for
highway and transit vehicles. The transportation plans and programs produced by the transportation
planning process will be required to result in emissions which are within the budget. Regional
emissions analyses will be required to demonstrate that emissions from the transportation system after
the plans and programs are implemented will not exceed the emissions budget, despite any difference
that may exist between the area’s current and forecasted population, employment, and travel demand
and those that were assumed at the time of SIP preparation and adoption.
Emission budgets should be stated clearly and unambiguously in the SIP so that future
comparisons can be made accurately. At the State’s option, one or more alternative emission budgets
may be included in the SIP, each of which is shown to produce milestone compliance and/or
attainment.
Moderate CO nonattainment areas with design values of 12.7 ppm or less are not required to
demonstrate attainment and therefore will not have an existing basis for establishing emission budgets
for the purpose of conformity. For these areas, States may choose one of two options to include in
the SIP:
Option 1: The State may elect to extend the interim conformity criteria of section 176(c)(3) (A)
for the entire period prior to EPA approval of either a section 175A maintenance SIP or,
following bump-up, a SIP that meets RFP and attainment requirements.
Option 2: The State may voluntarily submit, as a SIP revision, an attainment demonstration and
corresponding motor vehicle emissions budget, like higher classified areas. This may show that
transportation plans that cause emission increases are in fact compatible with attainment, thereby
providing the transportation planning process flexibility to adopt such plans later.
3. Maintenance Plans
For States with areas redesignated to attainment and operating under a maintenance plan under
section 107(d), the emissions budget concept for conformity still applies. A budget for motor vehicle
emissions must be established in the maintenance plan and shown to be consistent with the
maintenance demonstration in light of expected emissions from other sources.
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4. Failure to Meet a Milestone/Attainment
Failure to meet a milestone or to attain by the appropriate date will require development of a new
emissions budget as part of replanning. Until a new SIP is approved or a Federal plan is
promulgated, the previous budgets will remain in effect for the purpose of demonstrating conformity.
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APPENDIX A: CHECKLIST
A. MiNIMUM REQUIREMENTS
1. Moderate CO Nonoitainment Areas (less than or equal to 12.7 ppm):
o Emissions inventory by November 15, 1992
o IIM corrections by November 15, 1992 (committal SIP under section 110 (k) (4) expected)
o Periodic inventory by September 30, 1995, and every 3 years thereafter
o Oxygenated fuel programs in effect by November 1, 1992
o Section lfl(c)(9) contingency measures due by November 15, 1993
2. Moderate CO Nonauainment Areas (greater than 12.7 ppm):
o As above
o VMT forecasts by November 15, 1992
o Pnhanced IIM, in urbanized areas with 1980 populations of 200,000 or more, by November 15, 1992
(committal SIP under section 1 10(k)(4) expected)
o Attainment demonstration by November 15, 1992
o SIP control strategy by November 15, 1992
o NSR programs submitted by November 15, 1992
o Section 187(a)(3) contingency measures due by November 15, 1992
3. Serious CO Nonattainmen: Areas.
o As above
o TCM’s and employer trip reduction programs by November 15, 1992
o Clean fuel vehicle fleet programs by May 15, 1994
4. “Not-Classified’ Areas
o SIP revisions due 3 years from date of designation (November 15, 1993)
o Emissions inventory included in SIP revision
o Attainment date no later than 5 years from designation (November 15, 1995 for areas designated on
enactment of CAAA)
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5. Other Deadlines
o Multistate work plans by July 31, 1992
o Redesignation areas submit SIP revision with maintenance plans to ensure NAAQS for at least 10
years after redesignation
6. SIP Control Stra1e
o Base year inventory by November 15, 1992
o Periodic inventory by September 30, 1995
o Modeling inventory by November 15, 1992
o Attainment demonstration plan (serious areas) by November 15, 1992
B. ADMINISTRATIVE CHECKLIST
1. Were the following terms defined?
Nonattainment Area _Yes _No
RACT/RACM _Yes _No
TCM’s _Yes _No
Contingency Measures _Yes _No
Comments:
2. Did the plan contain evidence of involvement and consultation of the public, Local governments, and
Stale legislators?
Yes No
Comments:
3. Was a certificate submitted documenting a public hearing?
Yes No
Comments:
4. Did the plan provide for public availability of emission data?
Yes No
Comments .
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S. Did the plan document the State’s authority to detennine compliance of CO sources (including
recordkeeping, inspections, and source testing)?
Yes No
Comments:
6. Did the plan document the State’s authority to i,’qall , maintain, and use emission monitoring and
controlling devices? -
Yes No
Comments:
7. Were copies of laws or regulations provided that define the State’s authorities?
Yes No
Comments:
8. Did the Staie delegate authority to a local agenq to implement portions of this plan?
Yes No
Comments:
9. Did the plan identj/ji the organizations that are developing, implementing and enforcing the plan?
Yes No
Comments:
10. Were the responsibilities of each organization identified?
Yes No
Comments:
11. Di i the plan inch de a list of any memorandum of understanding among agencies responsible for
developing, implementing, and enforcing the plan?
Yes No
Comment.v
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12. Did the plan include a swnnzaiy of procedures used to involve the public, government, and elected
officials in developing the plan?
___Yes ___No
Comments:
13. Were any comments from the above sources discussed in the plan?
___Yes ___No
Comments:
14. Did the plan contain a description of resources available to responsible agencies?
___Yes No
Comments:
C. ATTAINMENT DEMONSTRATIONS FOR AREAS GREATER THAN 12.7 PPM
I. Did the plan discuss the methodology used to demonstrate attainment?
Yes No
Comments:
2. Was urban area wide modeling utilized for the attainment demonstration?
___Yes No
Comments:
3. Was hoispot modeling utilized for the attainment demonstration?
Yes No
Comments.
D. BASE YEAR EMISSION INVENTORY. CHECKLIST
R€ to Quality Review Guideline for 1990 Base Year Emission Inventories (EPA-450/4-91-022
Sept th er 1991).
A-4
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E. MOBILE SOURCES
1. Were the vehicle emissions divided into categories (light duly, heavy duly, diesel, automobile, truck, etc)?
Yes No
Comments:
2. Were methods included for esthnathzg traffic parameters?
Yes No
Comments:
3. Were references included/or traffic parameters?
Yes ___No
Comments:
4. Does the plan indude emissions from railroads and aircraft?
Yes No
Comments: -
F. AREA SOURCES
1. Does the plan describe how area sources that overlap with the geographical boundaries of the
nonatlairsment area were included in the emissions invenloay?
Yes No
Comments:
G. EMISSIONS PROJECTIONS
1. Were population projecdons consistent wish other growth indicators (housing, VMTs, etc.)?
Yes No
Coinmerus:
2. Did the invenioty specify how growth is incorporated into the baseline projection invensoly?
Yes No
Comment
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3. Did mobile source projections factor in more stringent emission controls for automobiles produced in the
future?
Yes No
Comments:
H. RACT/RACM AND CONTROL STRATEGIES
1. Did the plan describe the control measures to be implemented?
Yes No
/
Comments:
2. Did the plan describe the implementation schedule?
Yes No
Comments:
3. Was the enforcement agency responsible for control measures identified?
___Yes ___No
Comments:
4. Will all currently available control measures be implemented by the appropriate deadlines?
___Yes No
Comments:
5. Did the plan describe the methods used to calculate control effectiveness?
Yes ___No
Comments:
6. Were alternate control strategies considered?
Yes No
Comments:
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7. Did the plan describe maintenance procedures for control techniques?
Yes No
Comments:
I. IMPLEMENTATION SCHEDULE
1. Did the plan include a timetable for the implementation of RACTIRACM?
Yes ___No
Comments:
- 2. Will the impiementalion schedule be aeiueved?
___Yes No
Comments:
3. Did the plan identify the implementation enforcement agency?
Yes No
Comments:
J. RELATIONSHIP TO OTHER PROGRAMS
1. Did the plan identify sources operating with Part D (NSR) permits?
Yes No
Comments:
2. Were offset requirements defined for new sources?
Yes No
Comments:
3. Were any preconszruaion bans in effect?
Yes No
Comments:
A-7
-------
4. Did the plan indude any additional Stale or local standards?
_Yes ___No
Commen&
K. REPORTING REQUIREMENTS
1. Did the plan report emission data using the new pennitting requirements of the amendments to the
CAA?
Yes No
Comments:
2. Were reporting mechanisms identified for attainment failure?
Yes No
Comments:
3. Were record-keeping procedures described?
Yes No
Comments:
A-8
-------
B. Clean Fuel Fleet
-------
B. Clean Fuel Fleet
B.1. Opt-out from the Clean Air Act (CAA) Fleet Program - -
Sept. 11, 1992 letter from Richard D. Wilson
B.2. Approval and Promulgation of Air Quality Implementation
Plans; the States of Connecticut, Massachusetts, New Hampshire,
and Rhode Island; Conditional Approval of Substitute Program for
the Clean-Fuel Fleet Program (Proposed Rule) 58 FR 31928 (June 7,
1993)
B.3. Conditional Approval of Maryland’s, Virginia’s and
Delaware’s Requests to Substitute Programs for the Clean Fuel
Fleet Program (Final Rule) 58 FR 50846 (Sept. 29, 1993)
B.4. Conditional Approval of California’s Substitute Program for
the Clean Fuel Fleet Program 58 FR 62532 (Nov. 29, 1993)
B.5. Follow-up to the Clean Fuel Fleet Workshop -- Apr. 18, 1994
letter from Marcia L. Spink
B.6. Clean Fuel Fleet Program - - July 3, 1994 findings letter to
Virginia
B.7. Substitute Programs for the Clean Fuel Fleet Programs - -
Aug. 29, 1994 memo from Thomas J. Maslany
B.8. New York State’s Substitute for the Clean Fuel Fleet Program
-- Sept. 9, 1994 memo from Conrad Simon
B.9. Substitute Programs for the Clean Fuel Fleet Programs - -
Nov. 10, 1994 memo from Mary T. Smith
B.10. Approval and Promulgation of Air Quality Implementation
Plans; Commonwealth of Massachusetts; Substitution of the
California Low Emission Vehicle Program for the Clean Fuel Fleet
Program (Opt Out (Direct Final Rule) 60 FR 6027 (Feb. 1, 1995)
B.l1. Substitute Programs for the Clean Fuel Fleet Program --
May 5, 1995 memo from Elaine Wright
-------
;——:
?A ‘s, . i:JAp, ij I
Michael J. Bradley, Executive Director, NESCAUM
James 4 mbrjght. Executive Director, MARAMA
129 Portland Street
Boston, MA 02114
Dear Messrs. Bradley and Hambright:
This is a response to your letter of July 16. l99
regarding opt-out from the Clean Air Act (CM) fleet program.
Your 1ol ter ex r ed concern that the November 15, 1992 dat ’?
for opt—out reque 1s was fast approaching nd there may riot, be
sufficient information to aiJow for full consideration of the
implications nf opt—out. As a potential o1ution, you requested
EPA accept a minimal SIP submission fe c the Clean Fuel Fleets
program for November 1992.
I understand the difficulty of making opt—out dsCiSIOnz at
t.his time. Sovotal elements of the EPA portion of the fleet
program are not yet in place. The national energy 1eg slat1on
which is near completion in Congress will likely have major
implications for fleets over the nezt decade, potentially making
a quick decision to opt—out imprudent. Also, there are
remaining uncertainties as to- whether or not states will
ultimately opt into the California’LEV proqram and, if so. the
details of that opt—in. ‘And, of course, any opt—out request
must be considered in the conta P 0-f the pressing needs for
emisnion reductions in many states.
The CM fleet program is not the only no” in.tiativo under
the 1990 Clean Air Act Amendments which is facing uncertain
circumstances as the November 1992 SIP submittBl date.
approaches. We -have ) een addressing thi, concern internally for
quite some time n w and have’ developed an approach which I
believe will meut. your ncod and lead to’ the best possible
decisio!Lr5g&fdiflg the fleet prograise
A ’ tailed in the enclosed EPA memorandum, under
section’ j(4) in’ some limited’circumatances that merit
special’ daration. EPA may accept coimnittal SIPs from the
state. EPA has determined that circumstances of state decisions
to opt-out from the fleet program merit such special
r.onslderation. Ira such SituSt3onv. after receipt of the
conanittal SIP, EPA would have six months to approve or
disapprove the coim ittal SIP. After approval the state wo fld
have one year to submit a fully adopted and technically and
adniinmatratively complete SIP. Assuming the pattern laid out
—.-— .-. eoøa
j..._
wmuiiaW p ...C . 1..
aAv*
£ ur1me- A O)
JI
‘ .uujI,’IJiJ
SFP 11992
OPiIC*IAL FOllil
T R A N S M ITT A L
-------
4 U 44P ( FROM EPA PSD D A HJ A OR TO 3 U22SO33g2 P002 ,’OQ2
—I—
abovG, the final SIP prr vi inn covering the fleet proqrain would
be due in May of 1994. This is Ihe same as the deadline for thc
SIP ubrnittal a. pr cribed in oction 246 of the Act.
Thus, under this approach, stdt considering opt—out would
have the additional tiim. to allo’.’ the remaining elements of the
program to be promu1ga ed hy EPA and other uncertainties to be
resolved. ‘remature opt—out decisions are not necessary since,
even if a 3tate ubrnit a committal SIP later this year. in 1444
it can submit a SIP implPmenting ttie c fleet program or
complete it opt-out SIP.
I hope this apprn rt meets your needs. We look forward to
working witu the LaLes to resolve your concern3 obout thc Elect
program and to build a fleet program which you can fuiJy
su ,pnrt Thank YOU F r yrnir interest. £‘lease contact Glenn
r’assavant of iiiy sLaff in Ann Arbor (313—668—4408) if we can be
of furthcr ac istance.
Cir.cerely yours, -
ORIGINAL IGN D BY
RICHARD 0. WILSON
Richdz.d D. Wilson
Director, Officc of Mobile Sources
Enclosure
RDSD;SRP8 y ornv:HainP :2563 Plymoutn Q: jI73;a/s/ Z 9O93W
Last Reviewed bY Gle.nzi Passavant 0/3/92:Control o.OM —g2—01fl
Reviewed by DZingcr:bjr:X27647:ANR_45 .R/S/92:Waflg No. 3150T
-------
4ittr ’ ‘ ‘ Federal Register I Vol. 58. No. 107 / Monday, June 7, 1993 / Proposed Rules
-eauirements previously promulgated
)SM will be implemented by the
o. In making the determination as to
tther this rule would have a
significant economic impact, the
Dopartment relied upon the data and
assumptions for the counterpart Federal
r gulatiori&.
List of Subjects in 30 CFR Part 938
Intergovernmental relations. Surface
mining, Underground mining.
Dated: May 27. 1993.
JrlTr y D. Jarrett,
Act ing Assist ant Director. Eastern Support
Canter.’
IFR Doc. 93-13301 Filed 6. 4—93j 8:45 am)
DIWNGCOOE431O-C 5.1
ENVIRONMENTAL PROTECTION
AGENCY
4OCFR Part 52
jCTI3—1 -6335, MA2I-I—5837, NHIO —I-
5836, RI8-I-5834; FRL.4663-63
Approval and Promulgation of Air
Quality Implementation Plane; the
States of Connecticut, Massachusetts,
New Hampshire, end Rhode Island;
Conditional Approval of Substitute
Program for the Clean-Fuel Fleet
ram
MCY: Environmental Protection
i gency (EPA).
ACTION: Proposed rule.
SU .IMARY: EPA is proposing to approve
State Implementation Plan (SIP)
revisions submitted by the States of
Connecticut. Massachusetts. New
Hampshire. and Rhode Island. Each of
those States in EPA Region I have
itidividually requested conditional
approval of a commitment to submit a
rubstitute program for the Clean Air Act
Clean-Fuel Fleet program. Section
1 82(c)(4) of the Cloe i Air Act provides
that, in order to opt-out of the fleet
program. states must submit a substitute
program or programs which achieve at
least equal long-term emission
reductions of ozone-producing and toxic
air bmissions. This action is being taken
vnder section 110 of the Clean Air Act.
Specifically. EPA proposes conditional
approval under section 110(k)(4) of
these commitments, and thereby
proposes to preserve the opportunity of
those states to opt-out of the Clean-Fuel
Fleot program. Section 1lO(k)(4)
provides that. if a State fails to comply
with its commitment, such conditional
oval will be treated 8S a
proval.
S: Comments must be received on
or before July 7. 1993. Public comments
on this document are requested and will
be considered before taking final action
on this SIP revision.
ADDRESSES Comments may be mailed to
Linda M. Murphy, Director, Air,
Pesticides and Toxics Management
Division, U.S. Environmental Protection
Agency, Region I. JF K Federal Bldg,
Boston, MA 02203. Copies of the State
subinittals and EPA’s technical support
document are available for public
Inspection during normal business
hours, by appointment at the Air,.
Pesticides and Toxics Management
Division, U.S. Environmental Protection
Agency. Region I, One Congress Street,
10th floor, Boston, MA 02203 and the
Bureau of Air Management, Connecticut
Department of Environmental
— Protection, State Office BuIlding. 165
Capitol Avenue. Hartford. CT 06101;
Division of Air Quality Control,
Massachusetts Department of
Environmental Protection, One Winter
Street, 8th Floor, Boston, MA 02108; Air
Resources Division, New Hampshire
Department of Environmental Services.
64 North Main Street, Caller Box 2033,
Concord, NIl 03302—2033; and the
Division of Air and Hazardous
Materials. Rhode Island Department of
Environmental Management. 291
Promenade Street, Providence, RI
02908—576?.
FOR FURTHER INFORMATION CONTACT:
Robert C. Judge. (617) 565—3233.
SUPPLEMENTARY INFORMATiON: The States
of Connecticut, Massachusetts. New
Hampshire, and Rhode Island have
submitted commitments to adopt )
substitute program in order to opt out of
the Cleen Fuel Fleet Program. A formal
SIP revision request was submitted by
the State of Connecticut on November
13, 1992. Massachusetts submitted a
request for parallel processing on
November 13, 1992. and a formal
request on May 7, 1993. Now Hemp.hiru
submitted a request for parallel
processing on November 13, 1992. and
a formal request on January 14. 1993.
Rhode island submitted a droll request
on October 29, 1992. and a formal
request on January Ii. 1993.
Section 182(c)(4) of the Clean Air Act
(CA / I) allows states to opt-out of the
Clean-Fuel Fleet Program by submitting
for EPA approval, a State
Implementation Plan (SIP) revision
consisting of aprogram or programs
resulting in equal or greater long-term
emission reductions in ozone-producing
and toxic air emissions. EPA can
approve such a revision “only if it
consists exclusively of provisions other
than those required under (Title 1) for
the area.” Section 182(c)(4) provides
that EPA is to approve or disapprove tho
revision by May 15. 1993. that EPA is
to publish the revision upon receipt.
and that such notice shall constitute a
notice of proposed rulemaking on
whether or not to approve the revision.
Section 182(c)(4) also provides that such
notice shall be deemed to comply with
the requirements of Sections 553
through 551 of the Administrative
Procedures Act concerning notice and
comment. This notice serves that
purpose.
EPA has determined that States
intendihg to opt out of the fleet program
could do so by submitting a
comml! ment to opt out of the fleet
program, by November 15. 1992. If EPA
condiUonally approved that
commitment, then the State would be
required tosubmit a fully adopted SIP
revision fulfilling that commitment by
May 15. 1994 (the deadline for
submitting SIP revisions to implement
the fleet program pursuant to section
24 11(a) of the CA.A). If the State fails to
submit a SIP revision fulfilling Its
commitment, the conditional approval
will be treated as a disapproval and the
State will be obligated to submit a fully-
adopted SIP revision to implement the
fleet program in accordance with
section 246(a) of the CAX. EPA believes
that this approach is consistent with the
provisions of the Act and will ensure
that, by May 15, 1994, the deadline for
the submission ofthe fleet program SIP
revisions, a SIP revision eitheE
implementing the fleet program or a
substitute achieving equal or greater air
quality benefit will have been submitted
to EPA.
In their SIP revisions, Connecticut.
Massachusetts, and Rhode Island each
evaluated the relative effectiveness of
“opting-in” to the California low
emission vehicle (LEV) program. New
Hampshire evaluated the benefits of
“opting-in” to the Federal reformulated
gasoline program. A copy of the State’s
commitment is available at the address
listed in the Addresses section above.
Today. EPA is proposing conditional
approval of these commitments under
section l10(k)(4) p1 the Act.
EPA may require much greater detail
describing why and how the substitute
programs achieve long-term reductions
in ozone-producing and toxic air
emission equal to or greater than those
provided by the federal clean-Fuel fleet
program in each state’s final submittal
to meet its commitment. A failure to
submit the necessary detail in the SIP
submittal will result in EPA disapproval
of that submittal. EPA expects that the
States will consider their reasonable
further progress goals in making their
decision whether to opt-out of the clean-
Fuel fleet program.
-------
- Federal Register / :Vol. 50. No. 107 / Monday. June ! 1993/ Proposed Rules
31929
would constitute Federal inquiry into-,
the economic reasonableness of the•
Slate actions. The Clean Air Act forbids
EPA to base its actions concerning SiPs
on such grounds.
On January 6, 1909. the Office of
Management and Budget (0MB) waived
Table 2 and Table 3 revisions (54 FR -
2222) from the requirements of Section
3 of Executive Order 12291 for a period
of two years. EPA has submitted a
request for a permanent waiver for Table
2 and Table 3 SIP revisions. 0MB has
agreed to continue the temporary waiver
until such time as ft rules on EPA’s
request.
Nothing in this action should be
construed as permitting or allowing or
establishing a precedent for any future
request for revision to any State
Implementation plan. Each request For’
revision to the State Implementation
plan shall be considered separately in
light of specific technical, economic,
and environmental factors and in
relation to relevant statutory and
regulatory requirements.
The Administrator’, decision :o
approve or disapprove the SIP revision
will be based on whether It moats the
requirements of section 110(a)(2)(A)—(K)
Proposed Action - . - end I 10(e)(3) of tho Clean Air Act, as
EPA Is proposing io conditiona1ly -: amendad, and EPA regulations at 40
approve State Implementation Plan - ( ‘R POd 5L -
(SIP) revisions submitted Inaividually
by the States of Connecticut. •
Massachusetts. New }Iampshiro. Rhode
Isla id. These States In EPA Region I
have each requested conditional
approval of a commitment to s bmit a
substitute program for the Clean Air Act
Clean.Fuel Fleet program. - - __________________________________
Under 5 U.S.C. 605(b). I certify that
this SIP revision will not have a - WLUNG coo sso-eo-M FEDERAL EMERGENCY
significant economic impact one _________________________ MANAGEMENT AGENCY
substantial number of small entities. -
(See 46 FR 8709.) • ‘ 40 CFR Pad 52 44 CFR Pad 67
This action has bean classified us a
Table 2 action by the Regional . 10H20-15388; FRL—4661—Il Pocket No. FEMA—70681
Adm nistrotor under the procedures’ Approval and Promulgation of Proposed flood Elevation
January 19, 1909 (54 2214—2225k Implementation Plans, Ohio Determinations
Under 5 U.S.C. 605(b), the - AGENCY: U.S. Environmental Protection AGENCY: Federal Insurance
Administrator certifies that SIP Agency (USEPA). Administration, FEMA.
approvals under Sections 107,110 and AcnoN: Notice of extension of public ACTiON: Proposed rule .
172 of the Clean Air Act will not have comment period .
a significant economic Impact on a SUMMARY: Technical Information or
substantial number of small entities. SIP SUMMAR USEPA is giving notice that comments are requested on the
approvals (or redosignations) do not’ ‘:the public comment period for a notice proposed base (100-year) flood
create any new requirements but simply i oF proposed rulemaking published Aprl elevations and proposed base flood
approve requirements that are already 12. 1993 (FR 19075) has been extended elevation modifications for the
State law. SIP approvals (or - 30 days. The AprIl 12, 1993 rulemaking communities listed below. The base
redesignations), therefore do not add - - proposed to approve and disapprove (100-year) flood elevations are the basis
any additional requirements for small ., specific portions of a requested site• for the floodplain management
entitles. Moreover, due to the nature of specific State Implementation Plan (SIP) - measures that the community is
the Federal.Stote relationship under the * revision to the ozone control provisions . required eithor to adopt or to show
Cloan Air Act, preparation ala . .. of the Ohio SIP for the Columbus Coatod evidence of being already In afflict in
flexibility analysis for a SIP approval Fabrics (GCfl facility In Franklin order to qualify or remaIn qualified for
Regulatory Process. I . ‘:. . s.
Under the Regulatory Flexibility Act..
5 U.S.C. 600 et seq., EPA must prepare
a regulatory flexibility analysis . —.
assessing the impact of any proposed or
final rule on small entities. Smell
entities Include small businesses, small
not-for-profit enterprises, and
government entities with jurisdiction.,
over populations loss than 50,00
SIP approvals undor section 110 and
subchapter 1, part D of the CAA do not.
croate any now requirements, but
simply approve requirements that the-’
State is already Imposing. Therefore,,..
because the federal SIP approval does
not impose any new requirements, I
certify that It does not have significant
impact on any small entities affected. .
Moreover, due to the nature of the-,. -
federal-state relationship under the ,. -
CAA. preparation of a regulatory .
flexibility analysis would constitute -.
federal Inquiry into the economic ‘.. -
reasonableness of State action. The CAA
forbids EPA to base Its actions
concerning SiPs on such grounds.
- Union Electric Co. v. U.S. EPA. 427 U.S.
246,96 S. Ct. 2518 (1976); 42 U.S.C.
Section 7410(a)(2). . .-. . . .... , -
County, Ohio. USEPA is extending the
comment period an additional 30 days.
based on an extension request by an
attorney ro resenting Columbus coetod
FabricI. to June 14, 1993.
DATES: Comments must be postmarked
on or before June 14, 1993.
ADDRESSES: Written comments should
be sent to: William L MacDoweli, Chief,
Regulation Development Section, Air
Enforcement Drench (AE—l7J), U.S.
Environmental Protection Agency.
Region 5,77 West Jackson Boulevard,
Chicago. Illinois 60604.
ron runmtn INFORMATION CONTACT:
Bonnie J. Bush, Air Enforcement Branch
(AE—17J), 77 West Jackson Boulevard,
Chicago, IllInois 60604, (312) 353—6684.
This action has been classified as a
Table Three action by the Regional
Administrator under the procedures
published In the Federal Register on
January 19, 1989. (54 FR 2213—2225).
On January 6, 1989, the Olfiie of
Management end Budget waived Tables
Two end Three SIP revisions (54 FR
2222) from the requirements of Section
3 of Execu h ç Prdor 12291 for a period
of 2 years.USEPA has submitted a
request for a permanent waiver for
Tables Two and Three SIP revisions.
CM I I has agreed to continue the
temporary waiver until such time as it
rules on USEPA’s request.
Authorltyi 42 U.S.C. 7401—7671q.
Doted: May 19,1993.
Valdas V. Adamkus.
Regional Administmtor. -
1FR Doc. 93—13281 FlIed 0—4—93; 8:45 aml
Bfl.UNO CODE 5560-50-U
List of Subjects in 40 CFR Part 52
Air pollution control, Hydrocarbons.
Intergovernmental relations, and Ozone.
Autherity 42 U.S.C. 7101—7671q.
Dated: May 27,1993. -
Paul C. Keough,
Acting RegionolAd:ninislrotor. Region I.
IFR Doc. 93—13228 Filed 6—4—93; 8:45 aml
-------
846 Federal Register I Vol. 58, No. 187 / Wednesday, September 29, 1993 / Rules and Regulations
Thu Department of Veterans Affairs
Nurse Pay Act liberalizes the rules for
determining whether a veteran or
eligible person can change a program of
education. On ‘page 29027 VA amended
38 cFR 21.4234 in order toimplement
this provision of law. 38 cFR 21.7614,
which governs changes of program of
education under the Montgomery Cl
Dill—Selected Reserve contains a’,
reference to 38 CFR 21 .4234 whIch Is no
longer accurate. This revision eliminates
that Inaccuracy.
The Department of Veterans Affairs,
the Department of Defense and the
Department of Transportation have
determined that this amended
regulation does not contain a major rule
as that term Is defined by E.O. 12291.
entitled Federal Regulation. The
regulation will not have a $100 million
annual effect on the economy, and will
not cause a major Increase In costs or
prices for anyone. It will have no
significant adverse effects on
competition. amployrnenf Investment,
productivity, innovation, or on the
ability of the United States-based’
enterprises to compete with foreign-
based enterprises In do iestic or export
narkets.
The Secretary of Veterans Affairs, the
cretary of Defense and the Secretary
1 Transportation have certified that this
amended regulation will not have a
signhiicant economic Impact on a
substantial number of small entities as
they are defined In the Regulatory
Flexibility Act (RFA). 5 U.S.C. 601-612.
Pursuant to 5 U.S.C. 605(b), the
amended regulation, therefore, is
exempt from the Initial and final
_regulatory flexibility analyses
requirements of sectIons 603 and 604.
This certification can be made
because the amended regulation directly
affects only individuals. It will have no
significant economic Impact on small
entities, Le., small businesses, small
private and nonprofit organizations and
small governmental jurisdictions.
The Department of Veterans Affairs,
the Department of Defense and the
Department of Transportation find that
good cause exists for making the
amendments to § 21 .7614. like the
provisions of law It implements.
retroactively effective on. Jtsne 1.1091.
It Is necessary to implement these
provisions of law as soon as possible.
There provisions no Iniended to
ve wbenefit forthQ individuaL The
r. m bn ; intended In the
lntion.wjlLbe .achieved through
,.i. .npt implementation. Hence, a
delayed effective date would be contrary
to statutory design, would complicate
nih,,inistrntion of these provisions of
law; and might result in the denial of a
benefit to someone who Is entitled to It.
ListofSubjectsin38CFlPart2 l
Civil rights, claims. Education. Grant
programs-education, Loan programs-
education. Reporting and recordkeeping
requirements, Schools, Veterans.
Vocational education, Vocational
rehabilitation.
Approve& AprIl 13.1993.
Jesse Erawu,
SeaetaryofVefe,ansd lffoirs .
Approved: August 6,1993.
W.S
Dftwctor ,Acsesslon PoIic Military
Monpowerond Personnel Policy. U.S.
Deparbnenl of Defense.
Appreved August 18,1993.
CL. “ ‘d . Jr.,
Ac1in O j OJjkeoffieadinessand.Reserm
Forthereasoussetout lnthe
preamble, 38 CFR part 21, subpart Lie
amended as set forth below.
PART 21—VOCATIOKAL.
REHABILITATION AND-EDUCATION
Subpart L—EducatlonalAssl8tance foe-
Membera of the Selected’ Reeorve
1. The authority citation for part 21,
subpart L continues to road as follows:
Authorftj 10 U.S.C C i. 106; 38 U.S.C..
501(4
2. Section 21.7614 Is revised to read
as follows.
§21.7614 Changesof program.
In determining whether a change of
program of education may be approved
for the payments of educational
assistance, VA will apply §21.4234 of
this part.
(AuthorIty: 10 U.S.C 2136(b). 38 U.S.C 3691:
Pub. L. 98—525, Pub I.. 101 —366) (June 1’.
1991)
IFR Doc. 93—23722 Filed 9—28—93:8:45 am)
nurse coor nm-u-U
ENVIRONMENTAL PROTECTiON
AGENCY
40 CFR Part $2
(DE17-1- 961; MD22-1-5962 VA27—1—
5963; FRL—4702-6]
Conditional Approval of Maryland’s,
Virginia’s and Delaware’s Re uests.To
Sub Utute Programs for the Clean Fuel
FIe . L Program
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
,
SUMMARY: The States of Maryland and
Delaware, and the Commonwealth of
Virginia. have requested conditIonal
approval of a commitment to submit a
substitute program for the Clean Air Act
clean fuel fleet program. Section
182(cJ(4) of the Clean Air Act (CAA)
provides that, In order to opt out of the
fleet program, States must submit a’
substituteprogram or programs which
achieve at least equal long-term
emission reductions of ozone producing
and toxic air emissions. By this action,
EPA is only approving State
Implementation Plan-(SIP) revisions to
preserve the opportunity of the States of
Maryland and Delaware. and the
Commonwealth of Virginia, to opt-out of
the clean fuel fleet program. EPA I, not
taking action on those substitute
programs, themselves.
EFFECTIVE DATE; This action wfll become
effective on November 29, 1993 unless
notice Is received on or before October
29, 1993 that adverse or critical
comments will be submlttedJf the
effective date Is delayed, timely notice
will be published In the Federal
Re tter.
ADDRF$8F5: Comments may b.’mailed to
Thomas J. Maslany, Director, Air,
Radiation, and Toxlcs Division, U.S.
Environmental Protection Agency,
Region 111,841 Chestnut Building.
Philadelphia, PA 19107. Copies of the
documents relevant to this action are
available for public Inspection, during
normal business hours at the Air,
Radiation, and Tonics Division, U.&
Environmental Protection Agency,
Region 1ff. 841 Chestnut Building.
Philadelphia, PA 19107; Maryland
Department of the Ehvimnment, 2500
Broenlng Highway, Baltimore,
Maryland, 21224; the Virginia
Department of the Environment Quality.
Ninth Street Office Building, Richmond,
Virginia, 23219, and the Delaware
Department of Natural Resources and
Environmental Control. 59 KIngs
Highway. P.0 Box 1401. Dover
Delaware 19903.
FOR FURThER INFORMATION CONTACT:
Kelly Sheckler, (215) 597-0545.
$UPPLB NTARY INFORMATION;
I. Summary and Action
Section 182(c)(4) of the Clean Air Act
(CAA) allows States to “opt-out” of the
dean fuel fleet program by submitting
for EPA approval a State
Implementation Plan. (SIP) revisIon
consisting of a program(s) resulting In as
much or greater lougterm emission
reductions In ozone-producing and
toxic air emissions as the CM clean
fuel fleet program. EPA can approve
such a revision “only if it consists
-------
V
I cderal Register / Vol. 58. No. 187 I Wcdncsda. September 29. 1993 I Rules and .Regulations50847
cxdusivcly of provision ’othcr than
those required under title I of the Clean
Air Act for.the area.” Section 182(c)(4)
further providesthatEPA is to approve
or disapprove the revision by May 15.
1993. end that EPA isto publish the
revision upon receipt. with such notice
being deemed to be a rulemaking notice
on whether or not to approve the
revision.
EPA also has determined that, States
intending.to opt-out of the fleet program
could do so by submitting.by the
November 15.1992 deadline a
commitment to opt-out of the fleet
program. If EPA conditionally approved
that commitment, then the State would
be required to submit a fully adopted
SIP revision fulfilling that commitment
by a date certain;but no later than May
15. 1994 (the deadline for submitting a
SIP revision to implement the fleet
program pursuant to section 246(a) of
the CAM. If the State rails to submit a
SIP revision fulfilling its commitment.
the conditional approval will be treated
as a disapproval and the State will have
an obligationto submit e.fully-adopted
SIP revision to lmplemé il the fleet
program in accordance with section
246(a). EPA believes that this approach
is consistent with the proviSions of the
Act and Willensurethat, by May is, -
1994. the deadline forthe submission of.,
the fleet program SIPrevisions, aSIP
revision eitherimplementing the fleet
program or a substitute achieving
equivalent air qualitybenelits wdl have
been submittedloEPA.
The States:o1.Marylar d and Delaware.
and the Commonwealth of Virginia have
submitted SlPirevisioniwhich include
a commitment .10 adopt:a:substitute
program in orderto opt-outofithe dean
fuel fleet program or.to submit the clean
fuel fleet program. - .
Moryland:Jn a letter datedNpvember
i 1992, the Governor of Maryland
committed to either adopt the federal
clean fuel fleet program or an alternative
substitute program end submit to EPA a
SIP revision by May 15, 1994. The
alternative program being considered is
the California Low Emissions Vehicle
(LEV) program. Section 177 of the Clean
Air Act allows states to adopt the
California LEV program. The LEV
program is a motor vehicle emissions
certification program, developed by the
California Air Resources Board, which
requires motor vehicle manufacturers to
introduce progressively deaner vehicles
into lihe marketplace. Under the LEV
program, each vchide manufacturer
most meet an increasingly stringent
snfrs wc.glitcdstan&ard icr eadi year
koni U raItI adeplion through model
241fl3. hi th iunt that Maryland
• 1 . ’-ç rieti foopr-orri of the fcdcr;il ch:an
Fuel fleet program through the adoption
of the California LEV program.
Maryland will retain, as a requirement
for Maryland fleets a low emission
vehidepurchase requirement that is at
least as stringent as the federal clean
fuel fleet program.
Virginia: In a letter dated January25.
1993. the Director of the Virginia
Department of Air Pollution Control
(now called the Department.oI
Environmental Quality) committed to
either adopt the federal clean fuel fleet
program or an alternative substitute
program and submit to EPA a SIP by
May 15. 1994. The alternative substitute
programs being considered are the
California LEV program (see discussion
above for description of the LEV
program) and the Federal Energy Policy
Act (EPAcI) fleet program.
Delawore:ln aletter dated February
26, 1993, the Secretary of the
Department of Natural Resources and
Environmental Control committed to
either adopt the federal clean fuel fleet
program or an alternative substitute
program and submit to EPA a SIP by
May 15, 1994. One alternative substitute
program being conside e , is the
California LEVpmgthñI see discussion
above for desaiption of the LEV
prograrâ).
Acqpyoleach-states tommitments is
available at the address listed in the
Addresses section above.
EPA is approving these requests to
reserve the opportunity to opt.out of the
clean fuel fleet program as SIP revisions
without prior proposal because the
Agency views these as noncontroversial
amendments and anticipates no adverse
comments. This action will be effective
November29, 1993. unless by October
29. 1993 noticais received that adverse
or critical comments will be submitted.
II such notice is received, this action
will be withdrawn before the effective
date by simultaneously publishing two
subsequent notices. One notice will
withdraw the final action and another
will begin a new rulemaking by
announcing a proposal of the action and
establishing a comment period. If no
such comments are received, the public
is advised that this action will be
effective on November 29. 1993.
EPA has reviewed these requests for
revision of the federally ’approved State
Implementation Plans for conformance
with the provisions of the 1990
amendments enacted on November 15.
1990. EPA has determined that this
action conforms with those
requirements and is conditionally
approving these commitments under
section I 1O(kfle) of the CAA.
LI’, will require much greater detail
describing why and how the substitute
program is sufficient to provide long-
term reductions in ozone producing and
toxic air emissions equal to or greater
than those provided’bylhe federeiclean
fuel fleet program in the state’s
submittal to meet its.commitment. A
faflarelo submit the necessary detail in
the SIP submittal would result in EPA
disapproval. EPA expects that the States.
will consider their reasonable further
progress goals (as defined in section 171
of the CAA) in making their decision
whether or not to opt.out of the clean
fuel fleet program.
Nothing in this action should be
construed as permitting or allowing or
establishing a precedent for any future
request for revision to any State
Implementation Plan. Each request for
revision,to the stateimplementation
plan shall be considered separately in
light olspecilic technical, economic.
and environmental factors and in
relation to relevant statutory and
regulatory requirements.
II. Regulatory Process
Under the Regulatory Flexibility Act.
5 U.SC. 600 et seq.. EPA must prepare
a regulatory flexibility analysis
assessing the impact of any proposed or
final nile on small entities. 5 U.S.C. 003
and 804. Alternatively. EPA may certify
that the rule WilInot have a significant
impact oni substantial number cff small
entities.Small entities include small
businesses. sznall.not-for.prdftt
enterprises, and government entities
with jurisdidion over populations of
less than 50.000.
Conditional ‘approvals of SIP
submittalundersettion UO,and
subchapter!, part DoltheOAA do not
create ny new requirements hut simply
approve requirements that the State is
already imposing. Therefore. because
the Federal SIP approvaldoes not
impose any new requirements, I certify
that it does not have a significant impact
on any small entities effected. Moreover.
due to the nature of the Federal-State
relationship under the CAA. preparation
of a flexibility analysis would constitute
Federal inquiry into the economic
reasonableness of state action. The CAA
forbids EPA to base its actions
concerning SIPs on such grounds.
Union Electric Co. v. U.S. EPA, 427 U.S.
246, 255—66(1976); 42 U.S.C.
74 l0(a)( 2).
lithe conditional approval is
converted to a disapproval under
section 110 (k) ror any State, based on
that State’s failure to meet the
conm litment. ii will not affect any
existing State requirements applicable
to small entities. Federal disapproval of
the State submittal does nut affect its
Statt’.riiForc.u . ility Moreovvr EPAc
-------
b0848 Federal Register Vol. 58 . No. 187 / Wednesday. September 29.
1993 / Rules and Regulations
disapproval of the submittal does not
impose a new Federal requirement.
Therefore. EPA certifies that this
disapproval action does not have a
sig iificont impact on a substantial
number of small entities because ii does
not remove existing requirements nor
does it substitute a new federal
requirement.
Under section 307(bXl) of the CAA.
petitions for judicial review of tI is
action must be filed in the United States
Court of Appeals for the appropriate
circuit by November 29. 1993. Filing a
petition For reconsideration by the
Administrator of this final rule does not
affect the finality of this rule for the
purposes of judicial review nor does it
extend the time within which a petition
for judicial review may be filed, and
shall not postpone the effectiveness of
such rule or clion. This action may not
be challenged later in proceedings to
enforce its requirements. (See section
307(b)(21.)
This action to approve Delaware’s.
Maryland’s. end Virginia’s requests to
preserve the opportunity to opt-out of’
the clean fuel fleet program by
commj t ng to submit a substitute
progrd l has been classified as a Table
‘action for signature by the Regional
dministretor under the procedures
,jblished in the Federal Regleter on
january 19. 1989 (54 FR 2214—2225). On
January 6. 1989. the Office or
Management and Budget waived Table
2 and Table 3 SIP revisions from the.
requirements of section 3 olExecutive
Order 12291 for a period’oI two years.
EPA has submitted a request for a
permanent waiver for Tables 2 and 3 SIP
revisions. 0MB has agreed to continue
the temporary waiver until such time as
it rules art EPA’s request.
1.isi of Subjects in 40 CFR Part 52
Air pollution control. Ozone,
Reporting and recordkeeping
requirements.
Dated: June 30, 1993.
Stanley L. Laskowski,
Acting Regional Administivior, Region III
40 CFR part 52. is amended as
follows:
PART 52—{AMEPIDED)
1. The authority citation for part 52
continues to read as follows:
.knthorityc 42 U S C. 7401-767 q.
‘%part I—Delaware
& ‘. ;on 52.422 s.amcrnJed by
Jgnaung the ex s1’ing text as
paragraph (a) and adding paragraph (b)
In rt,ad as follotvs’
§52.422 Approval status.
• • • • a
Ib) Letter of February 26. 1993 from
the Delaware Department of Natural
Resources and Environmental Control
transmitting a commitment to adopt
either the Federal clean fuel fleet
program or an alternative substitute
program by May 15. 1994.
Subpart V—Maryland
3. Section 52.1073 is amended by
adding paragraph (I) to read as follows
§ 52.1073 Approval status.
* * * * .
(I ) Letter of November 13. 1993 from
the Maryland Deportment of the
Environment transmitting a
commitment to adopt either the Federal
clean fuel fleet program or an alternative
substitute program by May 15, 1994.
Subpart VV—Virginia
4. Section 52.2423 is amended by
adding paragraph (j) to read as follows:
§ 52.2423 Approval status.
• a • a •
() Letter oF January 25. 1993 from the
Commonwealth of Virginia transmitting
a commitment to adopt either the -
Federal clean fuel fleet program oran
alternative substitute program by May
15, 1994.
IER Doe. 93—2374 l Filed 9—28—93; 8:45 amI
BILLING COCE 1550.60-P
40 CFR Part 52
(OR-4-1-6184; FRL-4694-7]
Approval and Promulgation of
Implementation Plans: Oregon
AGENCY: Environmental Protection
Agency.
ACTION: Final rule.
SUMMARY: EPA is approving the
revisions to the State of Oregon
Implementation Plans which were -
submitted on May 15. 1993 by the
Oregon Department of Environmental
Quality (DEQJ. The purpose of these
revisions is to bring about attainment of
the National ambient air quality
standards for volatile organic compound
emissions in ozone nOnottainment areas
in a timely manner, as required by the
Clean MT Act. This action to lipprove
this plan permits EPA the atithority to
enforce the adopted requirements.
EFFECTIVE DAlE: November 29, 1993.
ADDRESSES: Documents winch are
incorporated by reference arc available
for public inspect ion at. Environmental
Protect ion Ag.:stcy. Jerry 1( urlzweg
ANR-443. 4OrM Street, SW.,
Washington. DC 20460. Copies of
material submitted to EPA may be -
examined during normal business houf’s
at the following locations:
Environmental Protection Agency. Jerry
Xuriz ,eg ANR—443, 401 M Street, SW.,
Washington. DC 20460; Air Programs
Branch, Environmental Protection
Agency. Docket 0R4—1—516s, 1201)
Sixth Avenue (AT—082). Seattle.
Washington 96101; Oregon Department
of Environmental Quality. 811 SW..
Sixth Avenue. Portland, Oregon 97204—
1390.
FOR FURThER INFORMATION CONTACT:
Michael J. Lidgard, Air and Radiation
Branch, Air program Development
Section (AT—082), US Environmental
Protection Agency. Region 10. Seattle,
Washington 98101, (206) 553—4233.
SUPPLEMENTARY INFORMATION:
1. Background
Section 172(a)(2) and (b)(3) of the
Clean Air Act, as amended in 1977
(1977 ACt), required sources of volatile
organic compounds fVOC) to install, at
a minimum, reasonably availabIe
control technology (RACF) in order to
reduce emissions of this pollutant. EPA
has defined RACTas the lowest
emission limit that a particular source is
capable of meeting by the application of
control technology that is reasonably
available considering technological and
economic feasibility (44 FR 53761, -
September17, 1979). EPA has developed
Control Technology Guidelines (CTC)
for the purpose of informing stale and
local air pollution control agencies of air
pollution control techniques available
for reducing emissions of VOC from
various categories of sources. Each CIG
contains recommendations to the states
of what EPA calls the ‘presumplive
norm” For RACT. This general statement
of agency policy is based on EPA’s
evaluation of the capabilities and
problems associated with control
technologies currently used by facilities
within individual source categories.
EPA has recommended that the states
adopt requirements consistent with the
presumptive norm level.
On March 3, 1978, the entire
Portland-Vancouver Interstate Air
Quality Maintenance Area was
designated by Ike EPA as a
nonatlainmant area for Ozone. The
Port lancl.Vancouver interstate Air
Quality Maintenance Area contains the
nrhanizcil portions of three counties in
Oregon (Clackamils. Mulinomab and
Washington) and one County (Clark) in
the state of Washington.
ihe 1977 Ad required states to
suhinil plans to demonstrate bow tIii’y
-------
62532 Vederal Reg er I VoL SB. No. 227 1 Monday. November Z9. 10931 Rules and Reg latLoM
ENV1RQHMENTAL PROTECI1ON
AGENCY
DEPAR1I*ENT OF TRANSFORTAnON . Madison Avenue
Monroe Street
Adams Street
Jacksdn BOUIBYOrd 40 CF Pan 52
——
as
Conditional Apç rov$ of Caflfonda’s
optiO U FOtIM
SubettWts PrOQrain for GMnFu1
, ——————— ____________
- ___
Duwbrl 9e Operation Regulatl
Chicago lUvor, It.
a iCv Coa.ct Guard, DOT.
ACtiOSS Notice of temporary devb
mr Notice Is heroby gtvm
the Coest Guard bas Issued a temp
devlatløn to the regulations
the openlriig of ceitain di
the Chlcegp River. from December
tiUUUgh December31. i993. This
dea6onreqUlXO5tb9CitY1O0P0Dth .
bridges on signal alter receiving en
advance notice ala vessel’e intendod
time of passage through the draws
without regard to the number of vessels
tobo afforded passage. end establishes
speutfic periods of time In whIch these
bridge openings are to be scheduled.
The city Is being granted this deviation
to reduce the frequency with wblch It
must open Its drawbridges and provide.
time for necessary maInt nancs during
woelrdays , Monday through Friday.
ECTIVE DATE: The period of deviation
Ifecflve from December 1, 1993. and
continues through December 31, 1993.
FO fllRThEH INFORMATION CONTACT:
Robert W. Bloom. Jr.. Bridge Program
Manager. Ninth Coast Guard District.
Telephone number (236)522—3933.
SUPPLEMENTARY INFORMATION: The
flotillas of reaeational sailboats have all
returned to the boatyards for winter
storage on the Chicago River system.
This deviation is for the purpose of
providing specific times on Saturdays
and Sundays for sailboat movements on
the river system. while providing the
City with an uninterrupted period of
Mondays through Fridays to perform
ma nten o on its bridges. The bridges
affectedby this deviation are listed
below:
Main Brench
Lake Sl,oro Drive
Columbus Drive
Michigan Avenue
Wabash Avenue
State Street
Dearborn Street
Clark Street
La Salle Street
b eet
a-Orleans Street
Jrnnch
l.ake Street
Randolph Street
Washington Street
Grand Avenue
Ohio Street
Chicago Avenue
Notib Haisted Street
This deviation from normal operating
regulations Is authorized In accordance
with the provisions of title 33 f the
Code t Federal Regulations. S 117.35.
end applies only to the passage of
recreational vessels. Under this
deviation the bridges listed above
operated by the City of Chicago shall
operoth as follows:
(a) Tb. draws need open for the
passage of reaearional vessels only from
7 sin, to 2 p.m. on Saturdays and on
Sundays. and only after receiving a 24
hours advance notice.
(hI The Xinzie Street bridge, mile 1.81
across the North Branch. and Cururak
Rood bridge, mIle 4.05 across the South
Branth.’shail contInue to operate In
accordance with requirements presently
established In 33 FR 117.391.
(c) All d sws absU open br
commercial vessels in accordance with
currer4 regulations in 33 CFR 117.391.
in accordance with current regulations.
Including 33 FR 117.391. govertunent
vessels of the United States, state and
local vessels used for public safety. a nd
vessels in distress shall be passed
through the draws of all bridges as soon
as possible at all limes.
(d)Tbis period of deviation is
effective from December i, i993.
through December 31. 1993.
Additional information may be
obtained from Robert W. Bloom. Jr..
Bridge Program Manager. Ninth Coast
Guard District, room 2083D. 3240 East
Ninth Street. Cleveland. Ohio 44199—
2060. telephone (216) 522—3993.
Dated: November 22. 3993.
Rudy IC. PmcheL
Rear Admiral. U.S. Coast Guard.Commonder ..
Ninth Coast Guard District
1FR Docjg3-2903? Tiled 11—26—93; 348 anti
SIWNO COO! 4ItD.4 -
.tAIsF gthe
, ..‘ ‘ . aIe e1 olrevidons to the
Cab 1 cwIa oteta implementatIon plan
(SIP) proposed in the Federal Register
on May?. 1993. EPA did not receive
any written comments during the 30-
day comment period.
The California Air Resources Board
(CARB) requested EPI”s conditional
apprøvál of ha c rnmItment to submit a
substitute plun for the Clean Air Act
(CAA or Act) CIo n-Puet Fleet program
(fleet program). Tb. CA/I . fleet program
provisions require states, In order to
opt-out of tire fleet program, to submit
e substitute program for all or a portion
of the program(s) which achieve at least
equal long-term emission reductions of
ozone-producing end toxic air
emissions. EPA has deterrulifed that, in
limited circumstances, it may accept
comm ttal SIPs to perform CAA
requirements. in this action, EPA is
finalizing the conditional approval of
Califotnia’s commitment. thoreby
granting California the ability to opt-out
olthe fleet program.
EFFECTIVE DATE: This action Is effective
on December 29. 2903.
ADDRESSES; Copies of the committal SIP
and Notice of Pro osod Rulemaking are
available for public Inspection .it the
following EPA Regioi IX office during
norm%i business hours: Mobile Sources
Section. Air and Toxics Division, U.S.
Environmental Protection Agency.
Region I X. 75 Hawthorne Street. San
Francisco, CA 94105.
FOR FwIThERmFOAMAflON CONTACT:
Roxsnne Jo)nrson. Mobile Sources
Section, (A—2—1). Air & Toxics DLvi ion.
U.S. Environmental Protection Agency.
Region IX, 75 Hawthorne Street. San
Francisco. CA 94105. Telephone: (418)
144—I 227.
SUPPLEMENTARY INFORMATION:
L Background
On May 7,1993 in 58 FR V254, EPA
proposed to conditionally approve the
State of California’s commitment to
submit a substitute plan to “opt-out” 01
the CAA Clean-Fuel Fleet pro mm. Th.’
Coat Guard
O3CFR Part 117
(cGDO4
34L
—. aaacfl
-------
.L..-L .J-li’) I4 .LV-4.L
£d.t 1 rb
- Ic vu i
Federal Resister / Vol. 58, No. 227 / Monday, November 29. 1993! Rule . and Regulations 62533
fleet program Is to Introduce (In 22 program by May15. 1994. the
nonattainnient cities) lower pollution conditional approval will be treated as
emitting vehicles Into coabsily fueled a disapproval and the state will have en
fleets of (10 or more) vehidee In areas obligation to submit a fully-adopted SIP
with the worst air quality problems. revision to implement th. fleet program
Section 248 of the Act directs certain hr socordanca with section 246. EPA
states containing “covered arasa , ’ as believes this approach Is consistent with
defined in sectIon 246 (a), to revise their, -. the provisions of the Act an will
SIPs to require that “at least a spetified% ensure that, b Ma 15 1994 a
percentage of all new covered fleet rev s on er p ment nLthe ! i
vehicles In model year 1998 and 1 1 rogrem or a substitute program
thereafter purchased by each covered I achieving equlvalenrair qualuftenefitz
fleet operated In each covered area shalI( C1I y jreen submILted to k i &
be dean-fuel vehicles and shall use EPA wilI require mucI greater detail
clean alternativ, fuels when operating by May 15, 1994 describing why and
In the overed area.” how California’s subst lmte program is
The goal of the fleet program is to sufficient to provide long-tar-zn
reduce omissions of non-methane reductions in ozone.produclng. carbon
organic gases (NMOG) and oxides of monoxide and toxic air emission; equal
nitrogen (NO$. and to demonstrate the to or greater than those provided by the
feasibility olusing clean-fuel vehicles in CAA fleet program. EPA expects that
contrally-fueled fleets. A credit program California will consider ha reasonable
forth . fleet program along with further progress goals (a ’ defined In
transportation control measure section 171 of the CAA) in deciding
exemptions.for fleet vehicles was whether to opt-out of the fleet program.
promulgatcd in a separate rulemaking The State can still choose to implement
(58 FR 11888. March 1. 1993). part or-all of the CAA fleet program by
i.—’ California has proposed to opt-out of May 15.1 I.
the fleet program y, ubmitting NothiflgI this action should be
% 8 f’a-lr .w.emrttton ve la ( LEV ) construed as permitting or allowing or
J gulaUons as a substitute pmgram me establishIng a precedent for any future
I W revision wilt commit Iifornia to request for revision to any SIP. Each
% KIoy emttcinnjernictlons equ1vale g request, for revision to the SIP shall be
tpt ose predicted.jo occur wi&& 1t considered separately in light of specific
‘ ,rnp1omontotion of the c&A neet . technI a), economic, and environmental
prog p. factor-sand In relation to rolovant
I statutory regulatory reqUirements.
Response to Comments
A 30-day public comment period was Regulatory Process
provided in the May 7. 1993,58 FR This action has been classified as a
27253. b A did not receive any written Table 2 Action by the Regional
comments during the comment period, Administrator under the procedures
which ended on June 7, 1993. published hi the } ‘cderal Register on
- . . January 19.1989(54 FR 2214—2225). On
UI. EPA Evaluation and Final Action January 6.1989. the Office of
EPA is finalizing action to Management and Budget (0MB) waived
conditionally approve the submittal Table 2 and Table 3 SIP revisions from
revision for inclusion Into the California the requirement of section 3 of
SIP (see General Preamble for the Executive Order 12291 for a period of
Implementation of Titlo I of the Clean two years. U.S. EPA has submitted a
Air Act Amendments of 1990. April 16, request, for a permonent waiver for Table
1992,57 FR 13498. regardIng the 2 and Table 3 SIP revisions. The 0MB
requirements of section 120(a) and part has agr ed to continue the waiver until
Del the CAA). such time as it rules on U.S. EPA ’s
EPA determined that if California and request This request conUnue in effect
other states are intending to opt-out of under Executive Order 12866 which
tiro fleet prog .Im they should dose by supersdded Executive Order 12292 on
November 151992, and should at that September 30. 1993.
time submit and commit to a substitute (Jnddr the Rogulatory Flexibility Act,
plan. EPA conditionally approved 5 U.S.C. 600 at seq.. EPA must prepare
CaEfornia’s commitment and the State a regulatory flexibility analysis
will now be required to submit u fully assessing the impact of any proposed or
adopted SIP revision Fulfilling that final rule on small entities. 5 U.S.C.603
commitment by May 15,1994 (also the and 604. Alternatively, EPA may certify
deadline for submitting SIP revisions to that the plan will not have a significant
implement the fleet program pursuant to impact on a substantial number of small
section 246(a) of the Act). If California entities. Small entities Include small
q fails to submit a SIP revision fulfilling . businesses. smell not-for-profit
its commitment of the substitute enterprises, and government entities
with lurisdiction over populations less
than 50,000, -
Conditional approvals under section:
110 and subchapter), part U of the CAA
do not create any new requirements, but
simply bpprovo requirements that the
State is already imposing. Therefore.
because the federal SIP-approval does
not impose any new requirements. EPA
certifies that this final action would not
have a significant impact on any small
entitles affected. Moreover, due to the
nature olthe federal-state relationship.
under the CM, preparation of a
regulatory flexibility analyaie would
constitute federal Inquiry into the
uchnomle reasonableness of State
action. The CM forbids EPA to base its
actions concerning SiPs on such
grounds. Union Electric Co. v U.S.
E.P.A.. 427 U.S. 248,258—288 (S-Ct.
1976): 42 U.S.C. 7410(a)(2).
List of Subjects In 40 CFR Part 52
Environmental protection.
Administrative practice and proceduld.
Air pollution control for Ozone.
Hydrocarbons. Intergovernmental
relations, Motor vehicles’ pollution.
Nitroger oxide, Reporting and
recordkeop lng requirements.
Dateth November 2. 2993.
Feuds Marcus,
RaglonoiAdmThisuoior.
Part 52, chapter I. tItle 40 of be Code
of Fodoral Regulations is amended to
read as follawar
PART 62—jAMENDED)
1.The authority citation for part 52
continues to road as follows:
Authorlty 42 U.S.C. 7401—7671g.
Sub ort F—California
2. Subpart F Is amended by adding
§ 52.2 19 to read as follows:
2.21G Idenllfleation of plan—
Con IUoneI approval.
The plan revision commitments listed
in paragraph (a) of this section were
submitted on the dote specified.
(a) On November 13, 1992. California
submitted a commitment to prepare a
revision to the California State
Implementation Plan (SIP) for the
California ozone nonattainment areas to
address th. requirement in section
182(c)(4)(B) of the 1990 Clean Au Act
Amendments that requires the States to
develop a SIP revision for all ozone
nonattalnmont areas classified as
serious and above to opt-out of the
Clean-Fuel Fleet Program by submitting
for EPA approval a substitute program(s)
resulting in as much or greater long-
term reductions in ozone-producing and
-------
APR—25—1994 14:37
EPA REGION 3 TRPB
215 597 3156 P.02
UNITED STAlES ENVIRONMENTAL PROTECTION AGENCY
RegIon III
841 Cheeviit BuD Irig
Philadelphia. PennsylvanIa 19107
e. Judith Parxi9h 4PR 1819
Bureau of Suburban Mobility
New Jersey Department of Transportation
1035 Parkway Avenue -
Trenton, New Jersey 08625
Dear Mr. Parrish:
This is a follow-up to the clean fuel fleet workshop
sponsored by EPA and DOE on February 15-16, 1994. Several
questions were raised during the workshop. The enclosed 0 & A
sheet is the agency’s best response to those questions at this
time. The responses are a coordinated effort between technical
experts, general counsel and our regional office.
As part of EPA’s continuing efforts to work with the State
Energy and Environmental Offices, we have obtained the assistance
of the Mid-Atlantic Regional Air Management Association (MARAMA)
which will host a meeting with these state offices. The intent
of this meeting is to facilitate resolution of many multi-state
nonattainment area enforcement and administrative concerns with
implementing the goals of the Energy Policy Act and the Clean air
Act. The meeting is scheduled for May 4, 1994 at the Days Inn
BWI in Baltimore, Maryland. A formal invitation will be sent
from the Director of MAR.AtIA, Mr. James Hatnbright.
We appreciate your enthusiasm in dealing with the federal.
requirements and your efforts to meet the energy and air quality
goals of the region. If you have any comments orquestions
regarding the enclosed Q & A, please contact Kelly Sheckler at.
(215) 597-6863.
- Sincer ly,
Marcia L. Spin3c, Chief
Air and Radiation Programs Branch
Enclosure
CC: EPA Regions 1-2, 4-10
R,ri igd Pa,
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RPR25—1994 14:38 EP REGION 3 TAPB 215 59? 3156
CLE 3 )‘UZL PLEET PEOGRAM
QUstion: It was suggested that certificate of conformity -
holders (i.e. manufacturers) be required to provide
“documentation” of some sort to vehicle owners and the state.
This would help, facilitate compliance. The states expressed
concern as to how they would know that a particular vehicle meets
EPA’s CFV standards. A single official document recognized by
the federal government would ensure consistency across states and
eliminate the burden on manufactures of filing multiple forms.
States encouraged EPA to add, a requirement to the certification,
rulemaking EPA is undergoing for both OEM’S and conversions.
Ra.pomea/Aotioflt States were encouraged to provide comments to
EPA regarding additional requirements to the certification
rulemakings. This rulemaking will be finalized by May 30, 1994.
Each CFV will be required to have a VECI label that distinguishes
the vehicle as a CFV. The VECI label will state that the vehicle
configuration meets the Part 88 requirements and vii ]. identify
whether it is a 1EV, ULEV, ILEV or 8EV. The VECI label is
located under the hood of the vehicle. , To facilitate
enforcement, the agency suggests developing a program that
periodically runs spot checks of vehicles that f1eet wners ‘are
using to demonstrate compliance. Obviously, spot checks on all
fleet operators/vehicles are resource intensive. However, the
agency feels that the threat of possible spot checkB and
penalties for non-compliance will deter false
recordkeeping/reportirtg by the fleet operator.
With regard to certification under the rules to be finalized
May 30, 1994, anybody, including, but not limited to, the vehicle
manufacturer; conversion kit manufacturer; installer, can submit
to EPA an application for certificate of conformity to one of the
crz standards for any particular model year vehicle configuration
- (conversion technology & specific vehicle engine family). The
certification process includes providing demonstrated emissions
data on the vehicle configuration and accepting liability for
emiBs ions performance of all vehicles produced under that
certificate for the useful life of the vehicle. Please be aware,
however, that the certification is good only on the particular
vehicle/engine type and model year’ that was approved by EPA.
once a cørtificate of conformity is issued, the person who filed
the application becomes the “manufacturer” and assumes all rights
and responsibilities that apply to manufacturers, including the
ability to produce and sell vehicles and the responsibility of
recalling vehicles if their in-use emission performance is not
satisfactory. It is important to clarify that EPA approves
vehicle configurations, not conversion kits.
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APR—25—1994 14:39 EPA REGION 3 TAPB 215 597 3156 P.e4
Anyone can apply for certification of vehicle configurations
that involve a fuel conversion of an older model year vehicle
‘type. As stated above, the pe aon who applies for the vehicle
configuration certification becomes the manufacturer. As with
any conversion, all vehicles produced will have to be identical
to the certified configuration (game model year, engine family,
and conversion equipment). -
Once a conversion configuration is certified for a given
model year vehicle/engine it will remain valid for one model
year. This means that if a manufacturer receives certification
in model year 1994, for a 1994 vehicle/engine configuration,
conversions of model year 1995 vehicles are not covered under
that certification because the certificate of conformity lapses
at the end of model year ‘94. Furthermore, certified vehicle
configurations only apply to conversiona/OEMs. made or
manufactured after the issuance of the certification of
conformity through the model year of certification. For example,
a C lv LEV certification issued on June 10, 1994 for a specific
vehicle configuration certifies only the same vehicle
configuration (converted or manufacturer) after the June 10, 1994
as a CFV LEV. A vehicle (converted or manufactured) using the
same jehicle configuration prior to June 10, 1994 is not
considered certified as a CFV LEV.
Question: How does a state in a multi—state nonattainment area
enforce exemptions when one or more states in that
nonattainmant area has opted-out of the CFF program. Are CPV’a
extended the TOM exemption in multi-state nonattainment areas
that do not have CFV programs (opt-out)? Again, consistent
regional enforcement was stressed as necessary. How does the
enforcing officer know that a vehicle is a CFV? States requested
national consistency to facilitate enforcement of TOM exemptions,
not only in single nonattairunent areas, but also throughout the
entire northeast, where several states have multiply
nonattainment areas within their respective state.
Response/Action: Section 246(h) provides that certain TOM’s
shall not apply to CFV’s that meet the requirements of section
246. Section 246(h) provides that Tat exemptions apply
notwithstanding Title 1 of the Act. Section 182(c) (4) (B) allows
states to opt-out of “all or a portion” of the CV program. Both
the plain language of section 246(h) and its legislative history
suggest that the TOM exemptions operate separately from any state
SIP and from any state decision to opt-out of the fleet program.
There is a further requirement that must be met in order for a
vehicle to qualify for the TCM exemption under section 246(h):
it must be not only a CFV, but it must also be a Clv meeting the
reguirementE f section 246. Section 246 generally requires SIP
revisions tç implement the CFV program in certatn nonattainment
areas. Obviously, if a state opts-out of the program, there is
no SIP revision implementing a Cl v program. EP3 believes the
2
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APR-25—1994 14:39 EPA REGION 3 TAPB 215 597 3156 p Ø5.
evident purpose of section 246 and Part C of Title II generally
to limit the benefits of the exemptions to covered fleet vehicles
by reading the phrase “meeting the requirements of this section”
as requiring the vehicles to be “covered fleet vehicles” as
defined -in -section 241(6). Section 246, entitle4 “Centrally
Fueled Fleets,” contains numerous references that show it was
intended to apply only to “covered fleet operators” and “covered
fleet vehicles.” Failure to adopt such a limitation could mean
the private owners for non-fleet vehicles would qualify for the
exemption, a result Congress could not have intended. Therefore,
TCM exemptions do not apply to non-covered fleet
operators/vehicles, un].ess they are ILEVs 1 . This means that
except for ILEVa, TOM exemptions for CFV do not apply to areas
which have opted-out of the CFV program because no “covered fleet
operators/vehicles” would exist.
Equally important to note is, the additional ‘2CM of
exemption from NOV lane restrictions applies only to ILEVe.
Because the ILEV program is federally enforced, the state’s
discretion to opt-out of the CFV program has no effect on the T M
exemption from NOV lane restrictions application for ILEV’ s.
The second part of this question involves enforcement of TOM
exemptions and the need for a clear ientification of CFV
vehicles. According to the Preamble to the Final Rule (58 PR
11888 (March 1, 199.3) labeling of CPV’s which ara not XLEVs but
which qualify for the general temporal—based TCM exemptions is to
be designed and administered by the state. State labeling
programs should be defined in the appropriate SIP submittal.
Special license plates, license plate tabs, windshield or side
panel decals or other distinctive marking may be used. Either a
text or a logo would be appropriate. EPA believes that because
implementation of time—of-day or day-of—week TcMs are likely to
be highly publicized state projects, individual states can best
make the decision of how large or small a label is needed and
what information it should contain. Of course, states that are
part of a multi-state covered nonattainir&ent area should work
together to develop a unified labeling system for that area.
Additionally, because EPA does not believe there will be very
many such ‘2CM ordinances programs, EPA does not anticipate
serious problems arising from inconsistent requirements around
the country; The states who are a part of a multi-state
nonattainment area that is experiencing serious problems
implementing/enforcing the TOM exemptions due to labeling
differences are encouraged to contact EPA.
‘ See 58 FR 11888 (March 1, 1993) (Final. R ing on
Inherently Low Emission Vehicles).
3
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APR—25—1994 14:40 EPA REGION 3 TAPB 215 597 3156 P
Questiom: States raised concerns abeut relying on future -
technology that has not been proven or made available on a
commercial basis. States and more importantly their legislatures
cannot afford to approve programs that speculate on future
technology.- More research is needed on the emission benefits
from CFF and EPAct programs. -
Responas/Actioiu section 246(c) of the Act provides that the
phase-in requirements shall take effect on the earlier of two
dates: model year 1998 or model year 2001. If the technology is
not available for 1998, the- program purchase requirements will
not go. into effect until the year 2001. Many manufacturers are
developing vehicles that meet CuRB standards. The CFV standard&
will be, for the most part, identical to CARB certified LEV’s and
ULEV’s, except for minor differences in the testing for
certification.
Question: The workshop was successful in facilitating
communication between the environmental and energy offices. The
differences in goals and requirements of the CM and EPAct fleet
programs are creating conflict for legislatures as well as
rulemaking agencies. Administrative and financial burdens need
to be reduced for either program to be successful. States
claimed that there was little support to adopt a program which
would result in little (compared to I/N, etc...) emission
benefits at a relatively high administrative and financial coBt
to the state and the regulated community (fleet owner/operators).
They would like to develop a single program that meets the
requirements of both of these Acts instead of two separate
programs at twice the cost, or develop an alternative option to
meet the emission reduction requirements under the CM and “let
th Feds (DOE) handle the EPAct fleet requirements.”
ResponBo/Action: The agency is committed to providing as much
assistance as possible to the states in resolving multi-state
nonattainment enforcement/implementation issues. The regional
office has contacted the Director of MARAX to obtain assistance
in facilitating group meetings. The group would consist of state
environmental and energy Directors, DOE, EPA and GSA. The first
meeting is tentatively scheduled for May 4, 1994 in Baltimore,
Maryland. EPA Region III and DOE offices are developing an
agenda. Public involvement from the regulated community may be
sought if the group deems it useful. It was also recommended
that NESCAUN be invited to participate in this effort. The role
of EPA Region III and DOE in these meetings will only be to
evaluate whether, proposed options will satisfy the CM and EPAct
respectively.
4
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APR—25-1994 14:41 EPA REGION 3 TAPS 215 59? 3156 P.0?
Question: How can the effects of a state CPV program be modeled?
The EPA report on lifetime emissions provides for the use of the
LEV input file. How can a state input the number of CFV in their
state and specify the emission levels at which they has been
certified? - Local data is necessary to calculate a true
accountability of emissions. -
ponsi/31atien : In addition to the guidance provided in EPA’s
report en “Lifetime Emissions for Clean Fuel Fleet Vehicles,”
dated October 1993, additional material will ha available shortly
which will calculate the emission differences between Tier I
vehicles and CPvs (LEVS, ULEVe, and ZEVS). The calculations will
be a result of MOBILE 5 runs using the LEV input file. The delta
i to be multiplied by the state’s estimated VMT for. a given
year, based on local data. The state’s VZ’IT estimate accounts for
the number and type of each CFV within a particular state and
vehicle miles traveled ‘by each type of CFV. This calculation
will provide total emission reductions expected. If any state
needs assistance in doing the MOBILE 5a runs, please contact the
agency.’
Question: In a multi—state nonattainment area bow can a state
determine, for emissions modeling and emission inventory
purposes, actual emission reductions resulting in a partiáular
state where trading has occurred? This is particularly important
where one state within a single nonattainment area has opted-out
of the CFV program. Trading is permitted within a single
nonattainient area. How are states to handle the issue of
trading in multi-state nonattainment areas with each state having
different programs? How are emission inventories to account for
this when one state may not have recordkeeping requirements (due
to opting-out) to provide the necessary data to determine the
emissions? How does a state model the emissions reductions both
projected. and actual in this situation?
Raspense/lction: The emission reduction calculation approach
stated in the response on modeling emissions cannot account for
interstate trading outside of the state boundaries. The overall
emission reductions from the nonattainment area will be accounted
for when each individual state inventories are totaled. However,
it is unlikely that trading outside state boundaries will
significantly affect emissions, and the state can assume for the
calculation that no trading occurs.
5
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APR—25—1994 14:41 EPA REGION 3 TAPE 215 597 3156
Quostiems The states expresèed concern regarding enforcement and
implementation in multi—state nonattaizuuent areas and a lack of
direct guidance by EPA. The states requested formation of a
group to develop a protocol that satisfies the CM and EPAct
requirements which all states in the northeast could use to
maintain consistency among states, facilitate enforcement, and
reduce the burden of compliance for the regulated community.
Respoma./aotion: As stated in a previous question/response, the
regional office has contacted the Director of MABMA to obtain
assistance in facilitating group meetings.
Quostioni Many inspection and maintenance issues are of concez n,
since all of the areas required to implement the CFV program also
are required to implement an inspection and maintenance program
(I/H).
1. The I/H tests may falsely fail or may be more stringent
for certain CFV’s (e.g. cNG ILEV).
2. The I/H test equipment, which is calibrated for propane
gas as a typical hydrocarbon, tends to read higher
methane emissions than actually exist.
3. cFV’s (LEVI TJLEV and ILEV) are certified to standards
expressed in terms of Z MOG. For gasoline vehicles NMOG
- very closely matches lfl liC. Yor non-petroleum fuels,
NMOG and NMHC can be significantly different for the
same vehicle. In effect, the MC measured in the I/H
programs may be greater than the NMOG measured for
certification.
How can states account for this inadequacy in their I/H
programs, assuming AFV’s/CP’V’s are subject to testing? How can
this effect be incorporated into modeling demonstrations? Will
EPA require different testing equipment for CFV’s/APV’s under the
I/N program?
P.aspona./A tion: Under the enhanced I/H program, states do not
receive credit towards meeting the performance standard for.
testing clean alternative fueled vehicles. Nor do states lose
credit for not testing clean alternative fueled vehicles. At
present the agency does not know enough about the deterioration
of alternative fueled CEY’s to determine what standards for I/N
programs should apply. The agency will be collecting testing
data on MV’s over the next several years to determine if and at
what rate deterioration occurs, Once the agency has determined
deterioration rates for A? V ’s 1 testing standards and cutpoints
can be developed. An evaluation of app opriate testing equipment
to deal with unique- characteristics of clean alternative fuel
vehicles will also be conducted after more data on these vehicles
is collected.
6
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lPR—25—1994 14:42 EPA REGIoN 3 TAPS 215 59? 3156 P.89 -
Question: It was suggested that DOE, EPA, and state
environmental and energy off ices, along with “Clean Cities”
organizations, work together to determine if there is the
political and economic will to install needed infrastructure to
implement bOth the CM and EPAct fleet program requirements.
Response/Action:. EPA agrees with this suggestion and will assist
states to foster such infrastructure. Mditioilally, EPA, as a
member on several DOE Clean Cities programs, will provide support
through that avenue. The regional office is taking .a leadership
role in developing ways to address the ozone situation in the
region. One of the proposed Strategies involves promoting the
accelerated introduction of clean alternative fuel vehicles,
which includes activities t o facilitate infrastructure.
Question: States requested EPA to provide guidance on how to
address and facilitate multi-state enforcement activities.
Response/Action: As stated in a previous question/response, the
regional office has contacted the Director of MABANA to obtain
assistance in facilitating group meetings to continue discussions
among states and coordinate enforcement efforts.
7
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q5124/95 12:54 202 260 0586 OGC AIR DIVISION J003
jji.-i5-t994 1505 EPP R RPB 21S 597 1129 P 2
( 1 UNITED STATES ENVIRONMENTAL PROTECTiON AGENCY
I Region Iii
4 L 841 Chestnut Bul ing
Philadelphia, Pennsylvania 19107
Honorable George S. Allen 1994
Governor of Virginia I
p.O. Box 1475
Richmond, Virginia 23212
Dear Governor Allen:
The Clean Air Act, as amended in 1990 (Act), establishes a
riwnber of new requirements that must be met for areas designated
as nonattajn tnent for ozone. In addition, because of the concern
regarding ozone transport in the Northeast, the Act established
the Ozone Transport Region (OTR). Areas not designated
nonattainment, but located in the CTR must also rnee Certain
requirements under the Act.
We commend the Department of Environmenta Quality and its
Air Program for the State Implementation Plan (SIP) elements that
have been adopted and ubmittcd to the Environmental Protection
Agency (EPA). We consider,these submittals to be a high priority
and will process them as quickly as possible. -
while we recognize that Virginia has made substantial
progress in meeting its obligations under the Act, the SIP
element due by the milestone date of May 15, 1994 ha not been
submitted. For the’ Clean Fuel Fleet Program (CFV) SIP reviaion,
which is the subject of one of tcday’a findiz ge, this office
intends to continue to woz)c closely with the Department of
Environmetal Quality-to undertake all necessary efforts to ensure
its submittal as soon as possible in order to avoid the
implementation of sanctions and the need to promulgate Federal
Imp1e mentation Plans (PIPe).
By’ today’s letter, EPA is notifying Virginia that pursuant
to section 179(a) EPA-has made a finding of failure to make a
submittal as to the cri program for which a SIP submittal was due
for the northern Virginia area by May 15, 1994. The provisions
of subpart C of Title II ot the Act require stateB in ozone
nonattainment areas classified as serious and above, to revise
their SIP to incorporate a CFV program. Under this program,
specified percentages of the new vehicles acquired in model year
1999 and ‘after by certain fleet owners must meet clean-fuel fleet
vehicle (CFFV) emission standards. This requirement can be met
by the purchase of new CFFVs, the conversion of conventional
vehicles to CFFVe, or through purchases of credits pursuant to a
credit program. The revised SIPs for affected states must also
include provisions to implement a credit program and to exempt
eF ’Ve from certain transportation control measures. In general,
Rg 1adFs
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05/24/95 • 12:55 V202 260 0586 OGC AIR DIVISION JCO4
J _i5— 994 j5:jØ EPA R APD 215 59? 1129
2
(uch a finding is being made for the CFV program for which the
Commonwealth failed to maJce ‘any submittal or for. which the
lCommonwealth failed to ado t and/or subject to public hearing ‘as
jrequ$red under ectiono 12.0(a) (2) and 2.10 Cl). ?or thiB finding
gf failure to Gubmit, it Virginia has riot made a complete
submittal of a Cr7 program within 18 months of this finding of
failure to submit, EPA will, be mandated to use its authority
under section 179(a) to impose at least one sanction identified
iri section 179(b) in the affected nonattainment areas.
ThiB letter also addresses the requirement f the submittal
of State implementation plans (SIPS) governing the application of
remsonably available control technology (RhCT) to major
stationary sources of nitrogen oxides (NOx) under sectio, 182(f
of the Act. As you may know, for certain programs required u.nder
the Act (including NOx RACT), EPA had earlier adopted a policy
pursuant to section 12.0(k) (4) of the Act to conditionally approve
SIPs which committed to provide the Agency with specific
enforceable measures within one year of the date of approval of
the commitment. Under this pc3.iey, EP effectively extended th
deadline for State submi on of NOx RACT rules approximately tt
years. That interpretation was challenged in NaturpL.Re ou ces
Defiense _ Coiinci]. _ v Browner , three consolidated lawsuits brought
in the United States Court of Appeals for the fliatrict of
‘Columbia Circuit. In a full Opinion, dated May 1994 (and in a
March 8, 1994 Order and April 22, 1994 Amended Order issued
earlier) the Court found that EPA’s conditional approval
interpretation exceeded the Agency’s statutory authority, but
concluded that “EPA properly extended” the deadline for submittal
of fully enforceable NOx RACT SIPS.
However, in its discuscion of the NOx PACT BIP submittale,
the Court erroneously assumed that “EPA granted a narrow one-year
extension for NOx PACT submissions,” that is, until Novembcr 2.5,
1993. Based on this premise, the Court stated that “the
statutory period for reviewing NOx PACT submittals should
commence as of the extended submittal deadline of November 2.5,
199 , expiring i ’i-i8 months as the Amendments require.” The
Court went on to say that “the EPA must approve or disapprove
(such] su ittal. no later than May 15, 1995.” EPA assumes that
the Court Lntended the May 2.5, 2.995 approval/disapproval deadline
to apply o ]y to NOx PACT SIP submittals EPA has received to
date. On june 20, 1.994, EPA filed a Motion for Clarification,’
in part. to affirm that this was indeed the Court’s intention.
On the same day, NRDC filed a “Suggestion for Rehearing
, banc” as)cing the D.C.-Circuit as a whole to reconsider the
May 6, 1994 Opinion, including the portion devoted to the NOx
FACT issues, in part because RDC believed that “Ct] be opinion
conflicts with numerous decisions holding that plain otatuto y
language establishing mandatory deadlines is diopositive.”
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95/24/95 12:56 202 260 0586 0CC AIR DIVISION 005
‘J(j—j5. . 994 j5:3.Ø EPA R AP 215 59? 1129 P.24
3
Prom the outset, EPA has had serious concerns about the
committal SIP litigation because it clearly had the potential of
resulting in very far•reaching adverse consequences for EPA’s
administration of Title I SIP programs under the Act. However,
tha May 6,. 1994 decision took an approach that, overall,, was fax
more sympathetic to the Agency’s position than initially
anticipated. As the Couzt itself said; “While we hold that the
EPA misconstrued arid misapplied section 110(k) (4), we
nevertheless conclude that. equity and practicality require that
we approve the [ deadlinsi extensions in part and that we adopt
more moderate, reme4ial measures 1].” On the other hand, the
litigation was complicated by’ numerous pleadings to the court,
including several motions for clarification, requests for
modification or amendment of orders, and petitions for rehearing,
involving additional briefing of issues. Some of these actions
prompted the Court, at the conclusion of its April 22 Atended
Order, to state; “(W3e believe that all parties have had ample
opportunity to address remedial issues and-that no additional
briefing is necessary.” aased on tius statement, and on other
indications from the Court, EPA has concluded that any additional
representations to this court that could be construed as further’
argument or requests for modification of th# Coizrt’S holding
would be looked upon with disfavor and could, in any event,
jeopardize a generally favorable outcome.
Taking all, these factors into consideration, and
particularly in light of the various concerns expressed in the
court’s opinion and the, need for prompt action in implementing
the overall remedy in this case, EPA has informed the Court that
it intends to treat November 15, 1993 as the operative deadline
for state submission of NOx PACT SIPs. An important result of
this decjsjo , is that, far those areas for which NOx PACT SIPS
or exemption requests have not yet been submitted, the- Agency
intends to issue findings that the affected states have failed to
submit complete NOx PACT SIP revisions as required under the Act.
Consequently, by today’s letter, EPA is-notifying Virginia
that pursuant to section 179(s) (1) of t}Ie Act, EPA is making a
finding of failure to submit a complete NOX PACT SIP for the
Richmond moderate ozone nonattainment area, Under the Act, -a
finding of failure to submit a complete Sn’ trigqero the
mandatory sanctions provisions of the Act. If within 18 months
of this letter, Virginia has not, submitted NOx PACT rules that
EPA determines are complete, or EM has not approved a Max PACT
exemption. one of the two sanctionS under section 179 (b), as
selected by the Administrator, will be imposed. ( EPA’s
proposed z als establishing the order of sanctions under section
179(a) (58 FR 52.270 (Oct. 1, 1993))]. I
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/07/94 07:46 ‘ ‘7O3 235 5350 GENERAL COUNSEL f OO2
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION Ill
841 Chestnut Building
Philadelphia, PennsylvanIa 19107
SUBJECT: Substitute Programs for the Clean F iel DATE: 29 994
F .eet Programs . .
FROM: Thomas J. Maslany, Director /
Air, Radiation and Toxics Division (3ATOO)
TO: Mary Nichols, Assistant Administzator
Office of Air and Radiation (ANR-443)
- I am writing to. express a concern regarding the program
eligible for substitution of the Clean Fuel Fleet program (CFV).
As you are aware, section 182(c) (4) (B) of the Clean Air Act (Act)
provides states the opportunity to opt-out of the CFV program
with an alternative program. EPA permitted the states to submit
committal SIPS to meet the November 1992 opt-out provisions,
followed by a requiremen 1 hat a full SIP be submitted by May 15,
1994. . -
In Region III, three states, Maryland, Virginia and Delaware
submitted committal SIPs reserving the option to opt-out of the
CFV program with a substitute program. In al]. three cases, the
California Low Emi sion Vehicle (LEV) program was listed as one
of the possible substitutes. Section 182(c) (4) (B) requires that
the substitute program meet two conditions: Achieve greater or
equal emission reductions; and is not a required program under
the Act.
It is our understanding from the conference call held on
August 4, 1994, that LEV, if required under the Ozone Transport
- Commission (OTC) petition, would be precluded as a substitute
program because it would be cønsidered a required program under
the Act. With this understanding, we axe concerned about
possible actions to accept SIP revisions from the State8 of New
York and Massachusetts which uses LEV as a substitute program.
If the OTC LEV petition is approved by EPA, all the s t s
in the -OTC, including New York, Massachusetts, and the R ion
states mentioned above, will be required to implement ç
program. The OTC. submitted the petition to EPA on the’ P sm aø
that additional control measures would be necessary t
the ozone transport situation in the Northeastern 9tate If we
agree that additional measures are necessary to attair e oz e
standard, permitting the LEV prog am as a ‘substitiit p cpg ; n for.’
the CPV program would not provide the additional
the, OTC seeks in its petition. Another example of ?
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67,94 07:47 7o3 235 5350 GENERAL COUNSEL
2
situation involves the Sun Refining and Marketing Company (Sun)
motor vehicle inspection program in Pennsylvania. • In this
situation, Sun has set up on-road testing using remote sensing to
identify high polluting vehicles. The vehicle owners are asked
on. a voluntary basis to come into the Sun facility for .a - free
emissions test using 1 )1240. . If the vehicle fails, Sun will pay
for the repairs necessary to bring the vehicle into compliance.
The company is seeking credit for their program. The Region
feels that credit could only be achieved during the period prior
to the I/I’! program becoming a state/federal requirement . under law
(January 1995) . To allow emission credit for the program during
the time that the state program.begins operation would be double
counting. Sun can not receive credit for their program after it
becomes a required program in Pennsylvania.
If EPA approves the OTC petition for LEV, the program is
required in all states in 1999. The CFV program is to begin in
1998. How does one program serve as a substitute when both are
required? -In reality a net loss in.possible emission reductions
occurs. While its true that New York and Massachusetts have -
adopte4 egulations and submitted a SIP by the required deadline,
this and the fact that EPA may process that SIP prior to our
ruling on the OTC petition, has no bearing on the actual
implementation date.
We understand from discussions with Region II, that they
believe the timely submittal of LEV SIP submittals from New York
and Massachusetts makes these state eligible to use LEV as a
substitute to opt—out of the. CPV program. Region II has further
explained that New York has drawn an analogy between this
situation and the one a few years ago where certain states
adopted lower Reid vapor Pressure (RVP) levels prior to the time
they were mandated to do so under the CAA. In that situation
there was no double counting because those states did not receive
credit when it became mandated whereas, states that did it
afterwards did. Basically, New York contends that since it is
not asking to double-count, and did submit the LEV as a
substitute 6 the May 15, 1994 SIP due date, and LEV is not
currently mandated; it :is eligible to opt out of the CFV program.
our concern regarding! LEV as a substitute progral, ha no
effect on our support tova’rds the states in developing innovative
programs to reduce emissions. Nor is it meant to defer the
proactive efforts on the part of New York and Massachusettø to
adopt a program that, at this time, goes beyond the rec ui eent
‘Because this program is voluntary and is not fsdaç 2,y
enforceable, it is not eligible for emission credit. aqwpy ç, to;
purposes of this example, we assume it is a program that vpi 44
eligible for emission credit. ‘ 1 • • •
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p/ 4 Us:41 ZXIO3 235 5350 GENERAL COUNSEL
3
of the Act. We are committed to helping states attain the’
standards while providing flexibility. If we allow New York and
Massachusetts to use LEV.as a substitute for the.CFV program and
no other OTC states, an inequity issue arises. Our counsel finds
no legal means to allow one state this option and not the other
states.
This inequity to the other states will cause prob .ems here
in Region III where as many as three of the States have suggested
that LEV would be used to substitute for the CFV SIP. On the
entire issue regarding the use of LEV as a substitute for CFV,
both for states that originally asked to opt-out and those that
did not, we. must provide for equal treatment in the OTC.
Therefore, we urge you to consider the actions of the agency to
ensure consistency and equity while keeping with spirit.of the
C provisions.
I will be happy to discuss this issue further with you.
Please call me at (215) 597-9390.
CC: ‘1Uch Ossias, OGC
Dick Wilson, OMS
Linda Murphy, Region I
Connie Simon, Region II
-------
UNITED TATE$ ENVIRONMENTAL PRO ECTION AGENCY
REGION II
DATE: SEP 91994
SUBJECT. New York State’s Substitute for the Clean Fuel Pleat Pro.g m
POM Conrad Simon. Di*ector signed by
Air and Waste
TO: Mary 0. Nichols
Assistant Adiuini trator for Air and Radiation
I ant writing to óxpress my concern over the position aken by
Tom Maclany in his memo of’August 29 1994 concerning state
submittai.c of substitute rograins for CAA mandated clean ue1
Fleet Programs. In our view the issue is a fairly simple ems.
In order for a State to submtta com t1ø1p (aM apprr uah1s)- TP
submittal it must include adopted implementing regulations.
The states of New York and Koecachusetta took ricks by
developing and adopting T.EV prngrams ir n p tIva of the
ultimata posltio is taken by other Ozona Trarisport COUUUIS.S1Q I
(OTC) members, and made timely cubmittalc.
Region III questions thu Eairne s and equity of alloWing
Massachusetts and Now York to opt out with LEV becauss of EPA ’s
impanding decision with respec to the OTC’s petition to
require LEV throughout the Ozoiie Transp6rt Region. Region III
does not qucctioh the equity and fairness of allowing its
States to claim äredit in their 15% emission reductions Plan
for inpleinsnLin ; SLage I X controls when Region I and ‘Regioi II
St toc cannot get such credits because they regulated thoá
sources prior tc l99O. The point here is that the CAA has.
dates and requiröments that can impact States differently based
on their claecifLcation or status. . :: .‘
It is our belief that a State should be encouraged and not -.
ponali2od for taking initiatives provided under the 1a. .. Tn
exercising its ojtion to adopts California T EV standards - (LEV
w s rully adopted by the State on April28, 1992), New Yqrk
chowod such initiative.
Mas achusetts and New York have proven themselves to b -le ders
in clean vehicles in the northeast at a time when sw h an
exampLe may be crucial to the shapthq of a region—wide clean
vehicle program.; Pu thermore, these States have mat the
criteria set out by EP I in order to npt 1 nnt nf•the (!1ean Pu 1
Fleet ‘rogram, and submitted a viable adopted subs ituta -
REGION II FORM 1320.1 (9/86)
-------
program. Until EPA makes a decision which may change-I
the LEV program is to b treated, it jø o r re ponsibi
process its submittal with the intantionot making an
epprovability determination, based on exidting EPA
procedures Bet’ forth in the Cloan Air Act.•
Picaco inelu .e m In any further discussion of this .
cu; T. Maslany, P ogion IT t
L. Murphy, Re ion I
R. Wilson, D .
bcai 4. Bak r, 2AWI—AP
—2—
I — -. .... \ . I.. ‘. ...LI
- I’6,It,et
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05-23—95 11:34AM FROM EPA RDSD ANN ARBOR TO OGC P002/003
} MOR DUM
SUB 7ECT: Substitute Programs for the Clean
Fuel Fleet Programs
FROM: Mary T. Smith, Acting Director
Office of Mobile Sources
TO: Thomas J. Maslany, Director
Air, Radiation and Toxics Division
I appreciate your memo of August 29, 19 4 raa.sing your
concerns about the policy we are following for f states desiring to
substitute the California LEV program for the clean Air Aot Clean
Fuel Fleet (CFF) program. You are correct tha1 in Mary Nichols’
discussion of this issue with Rich Ossias and others at OGC, the
conclusion was reached that approval of the OTC LEV petition
would make LEV unavailable as a substitute pro razn.
As you know, in November of 1992 New York and Massachusetts
made commitments to adopt the California LEV program as a
substitute for the CTF program. both Btates sthbmitted full.y
adopted LEV programs to EPA as substitutes for I the CFF program by
the May 15, 1994, deadline set by the Act. Thkoughout the
legislative processes establishing the two LEV programs, the
states were advised by Regions 1 and 2 that the programs would be
acceptable as substitutes for the CFF program.! Considering the
effort the states have expended in this direction, you can
understand why we are not eager to disapprove their opt—out SIPs
- -prior to the completion of the OTC L V process - - en the
grounds that LEV would be required in New York and Massachusetts
if EPA grants the OTC petition. I believe the!consequences of
denying these statea the long-expected fruit of their efforts
would be very serious.
Maryland, Virginia, and Delaware appear t be in an entirely
different position. They have made little or io serious effort
toward implementing LEV programs, and nothing as been submitted
to EPA at this time. EPA does not expect subm!ttals in the near
future which would meet the commitments made b these states in
November of 1992. I understand the interest of these states in
potentially using OTC LEV as an opt-out substitute in the future.
however, if, as we and OGC have concluded, OTC!LEV will not be
acceptable as a substitute when and if the OTC!petition is
RDSD:Wysor:Connell:4349:2565 Plymouth M:ll/10 4 1 ’94
Last Reviewed by C.France:11/lO/94:NPT94390.2
-------
05—23-05 11:34AM FROM EPA RDSD ANN ARBOR TO 0CC P003/003
granted, then it duwi ziut seem to be an unbalanced approach to
treat them difforantly than New York end Masaaóhusette. I ather,
I think approving ew York’s and Msssachusatt$i opt-out SIPs
while Lequiring CIT programs trom Maryland, Viiginia, and
Dclawore may be most consistent with what each jsta e could have
reasonably fixpActEid f1?ort us, based on the actions they have
chosen to take or not to take in response to tI eir commitments.
As a policy matters I bolicvc it is ppropriat to seward states
that meet their con m4tmants.
However, we are exploring a new approach or those states in
the northeast OTR that are sub jac* to the (7P’ program
requirements that we think may reliev, the conc ern about
disparate treatment. While we have not yet macto the
determination, it may be that. the sdopti on and implementation by
the QTC of the Cal.Lroiaiia IimV pwq .aw wIll wak the liqht-auty
portion of the CPI’ program redundant. If wo cdnci.ude that is the
case, WA cou2.d approve a state’s submission o the adopted LEV
program regulations as sufficient to partially satisfy the
state’s obligation to cubmit the CPP program. The state would
ettU be required to adopt and submit the hoa!&.duty portion of
tho CT? program, since the LEV program does not include heavy-
duty vehicles.
We believe that such a result may greatly Ireduce the
administrative burden on qualifying states to, i nplement and
unfurce the CIT proqram, while retaining tne ei iesions and
technology-forcing benefits. Note that under t hia approach
states might find the implemAmt. lt.4on of the CF program easier,
but they would zaut b opting out of the prograzt . In any event,
this approach ohould cace concerns that. some atlates would have to
a redundant program. This approach does not affect New York
and MassachuseU..a, for which we continue to proCess notices
approving their opt-out. XPs.
I on interested ILL yuur upiiaion uf this ap iroac11. Please
contact me os Tad Wysor in Ann Arbor t 3 3-668-4332 with
comments or questions.
-------
UNTED 1A1E3 PI i iai AL PJ
l I
U 1 Q a.Z I
JaJEar Slthàtitute or& s the Clean Pual MAY 0 S I
Fleet
• Lain./4Jjbi ht, bh ector
Air, ai Te 4c pjvj jon (rn’ooj
Xarqo 1 r. age, DiEeeto
office or Xo jle Bovrcu (W 9O1)
On Mgust 2 , 3.9 4 vs wrote a letter to y’ai r orgecs
re a?disig aqency poUcy of aubstit it regr sa or ‘the olean fu.1
£ e t progre CTv. Tour otjve reupcrnded on Nove iiber 15, 1994.
In that e orand , it was stated that OMS va exploring a new
approach for the states in the northeast OT that ar ’s eubiect to
the OFU program r ç ir.asnts that deoire to use the OTC L V
pre as a substitute.
A recent requ. t by the Com onweaith of P zisy]va 1a
us to soc]c on ed14t.e response to our question o waetner or
not the agency can provide a eehanisa to afford states the
flexibility of developlnq programs that achieve equal or greater
e josien reduot Lone end censidere the adsiniotrative aM
tnenoial burdene placed upon the states
PnaylVar ia , a well ae the 9tatee € I1axy1 4, nolavaro,
Virginia and the V5 .riot f CoL sbia have e].1 expressed an
nterast in substituting the OTC low OmtGGioh vehiále (LEY)
proq ’5 or the C IV progrin. (e believe it is rea onabla for us
to all*v th ctate who Cafl 4vionstrete an equivalent esiasion
reduction benefit to ,u 5a the program of their choice.
t see coveral additional nafits to providing 1 this option
to Uzs states. )iot only does it foster qooa state re LationS and
flexibility in our mission toward clean air, it WUl help the
reulated con unity and the states deal with imiltiplo feder 1
re iairo Cr te I an referrin to the Dap aer4t oC iqrgy’ a
k1tori tjv. ‘ue1e progrea under the 1992 Energy Pelley Act aM
the EPA CFV program. 2 any states an fleets have expressed a
concern regarding the burden of co iplying with thooo two
provisions which are distinctive. Furthermore, tflG C I V program
appoara to add little benefit in terms ef emi oLon r uctions
whore tho LZV program is re U1Thd. T á t euir m nt før c1 an
fizol vehiole be ao d in the area. This further s pporta the
states’ claim that the ePv program is not cost effQc!tiv 5 end
______ 5fl (TPr f)L’ B J
.
05/23/95 14:38
5—1V)5 11:02AM
‘ 2O2 260 0586
FROM E A DSD ANN AR 0
pR ’-øB-1995 i7: FR MOMLE & URCE9
OGC AIR DIVISION
100CC
1001
P001/003 j1
RD D P.
• ( .
ThIA . FORM 9 (?.CD) _________________
AX TRANSMITTAL pag
IFrØIP-
S- I -, CA-S hA
O.pt i gr.ncy c’T ne
I
.20Z 200 13O O5:1 T rooz O?
I i i 75lO_O _317_flM
5O9 —th U ERAL 5ERVIC 5 MINU”’
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OGC AIR DIVISION
flRY -I9 95 1I’? FRQI EP B1LE 9IJ
P002/003
.rc RD D PJ3
eroate an adainjetreti,. hard hLp. We w dersta 4 that tb
l e vy-duty portioii of the CF proqra ic rau t O in the Zi V
pTog aa.. rf the etete could not detonstrata .qLIa or greater
ei in toz roductjono from LEV, there YQUld e rgee4 to
tb. adoption 0 1 t ie pertloft SI t S program br i a
miea on 4ifferc oo vith a.progra of equal beuoftt 1
* - Dt ion o1v, 3w tar tile CFV proqrá
o mencg in Vebluary 1996, a qaick xe ponsa L. neo.sa ry to
eneiare statee adequate time to proceed Vith their ru1e aJç in
proceme.
• We look thiw fi rthr viui you. V uk
• etatf can contac David o1d Chief of the 030mm/CO & bile
Souzc e.otien ’c (ZL!) W7—4556 of yally hec c1er of hie gtaff,
at (21.5) 97 .6R P I.S IL £rt SX• hnr In
• mduonoe for ya w t ins Ly COn5id2t tiOn .
cc; Tad Wyeá, 1% ?IXbOT
• Cuo3nite bu3 y, 0CC
05/23/95 ‘ 14:38
)S1 US ii:02tJ
2O2 260 0586
PRO}( EPA P.DSD ANN ARBOR
!0 OGC
________ __•______
O2 200 5 O
• 05 00 ” 06%IPM VO 3 lSO
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C. Conformity
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C. Conformity
C.0. Air Quality: Transportation Plans, Programs, and Projects;
Federal or State Implementation Plan Conformity (Final), 58 FR
623.88 (Nov. 24, 1993)
C.1. Determining Conformity of General Federal Actions to State
or Federal Implementation Plans; Final Rule 58 FR 63214 (Nov. 30,
1993)
C.2. Transportation Conformity Final Rule Implementation --
Dec. 20, 1993 memo from Philip A. Lorang
C.3. Transportation Conformity Q & A’s - - Feb. 15, 1994 memo from
Philip A. Lorang
C.4. Transportation Conformity - - Mar. 25, 1994 letter from
Carol M. Browner
C.5. Transportation Conformity Q & A’s - - May 2, 1994 memo from
Philip A. Lorang
C.6. ‘General Conformity Determinations for Wastewater Treatment
Facilities -- May 2, 1994 letter from Robert Pallarino
C.7. Transportation Conformity Rule - - May 31, 1994 letter from
Philip A. Lorang
C.8. Findings Letters- -Transportation Conformity Aspects - -
July 12, 3.994 memo from Philip A. Lorang
C.9. General Conformity Guidance: Questions and Answers - -
July 13, 1994
C.10. Denver Conformity Issues - - Aug. 15, 1994 memo from
Philip A. Lorang -
C.].1. Responses to Questions about Indirect Source Measures
and Redirection of Federal Funds -- Aug. 18, 1994, letter from
David Calkins
C. 12. Transportation Conformity Q & A’s -- Oct. 14, 1994 memo
from Philip A. Lorang
C.13. Attainment Area Decision -- Oct. 20, 1994 order
C.].4. Transportation Conformity Rule - - Dec. 27, 1994 letter
from Philip A. Lorang
C.15. Transportation Conformity Rule - - Dec. 30, 1994 letter
from Philip A. Lorang
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C.16. Transportation Conformity Rule Amendments: Transition
to the Control Strategy Period (Interim Final Rule) 60 FR 7449
(Feb. 8, 1995); (Proposed Rule) 60 FR 75-8 (Feb. 8, 1995)
C.17. Conformity with a State’s Implementation Plan (“SIP”)
for Achieving or Maintaining Federal Air Quality Standards - -
Feb. 10, 1995 order
C.18. Transportation Conformity: Assumptions Regarding
Implementation of Committee Measures - - Apr. 5, 1995 memo from
Philip A. Lorang
C.19. General Conformity Requirements as they pertain to
Regional Water and/or Wastewater Projects - - Apr. 23, 1995 letter
from Gary Blais
-------
Wednesday
November 24, 1993
Part II
Environ mental
Protection Agency
40 CFR Parts 51 and 93
Air Quality: Transportation Plans,
Programs, and Projects; Federal or State
Implementation Plan Conformity; Rule
I
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f2188 Federal Register / Vol. 58, No. 225 / Wednesday, November 24,
1993 I Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 51 and 93
(FRL-48 04-33
Criteria and Procedures for
Determining Conformity to State or
Federal ImplementatIon Plans of
Transportation Plans, Programs, and
Projects Funded or Approved Under
TItle 23 U.S.C. or the Federal Transit
Act
AGENCY: Environmental Protection
Agency (EPA).
ACTiON: Final rule.
SUMMARY: This action establishes the
criteria and procedures for determining
that transportation plans, programs, and
projects which are funded or approved
under title 23 U.s.c. or the Federal
Transit Act conform with State or
Federal air quality implementation
plans. This action is required under
section 176(c)(4) of the Clean Au’ Act, as
amended in 1990.
Conformity to an implementation
plan is defined in the Clean Air Act as
conformity to an implementation plan’s
purpose of eliminating or reducing the
severity and number of violations of the
national ambient air quality standards
and achieving expeditious attainment of
such standards. In addition, Federal
activities may not cause or contribute to
new violations of air quality standards,
exacerbate existing violations, or
interfere with timely attainment or
required interim emission reductions
towards attainment. This final nile
establishes the process by which the
Federal Highway Administration and
the Jederal Transit Administration of
the United States Department of
Transportation and metropolitan
planning organizations determine
conformity of highway and transit
projects.
EFFECTIVE DATE: This final rule is
effective on December 27, 1993.
ADDRESSES: Materials relevant to this
rulemaking are contained in Docket No.
A—92—21. The docket is located in room
M—1500 Waterside Mall (ground floor)
at the Environmental Protection Agency,
Attention: Docket No. A—92—21, 401 M
Street SW., Washington, DC 20460. The
docket may be inspected from 8:30 am.
to 12 p.m. and from 1:30 p.m. to 3:30
p.m., Monday through yriday.
FOR FURThER INFORMATION CONTACT:
Kathryn 5argeant, Emission Control
Strategies Branch, Emission Planning
and Strategies Division, U.S.
Environmental Protection Agency, 2565
Plymouth Road, Ann Arbor, Ml 48105.
(313) 741—7884.
SUPPLEMENTARY INFORMATION: The
contents of this preamble are listed in
the following outline:
I. Authority
II. Summary of the Final Rule
Ill. Background of the Final Rule
A. History of Conformity
B. Conformity Under the Clean Air Act As
Amended in 1990
C. Interim EPA/DOT Conformity Guidance
D. Public Participation
E. Conformity of General Federal Actions
IV. Discussion of Major Issues
A. Attainment Areas
1. EPA’s Position
2. Supplemental Notice of Proposed
Rulemaking
B. Interim Period
1. Background
2. Phase II of the Interim Period
3. Transitional Period
4. Control Strategy SIP Revisions EPA
Finds State Failed to Submit. Finds
Incomplete, or Disapproves
5. Future SIP Revisions
C. Emissions Budgets
1. What Is a Motor Vehicle Emissions
Budget?
2. EmissIons Budget Test
3. Locating the Motor Vehicle Emissions
Budget in the SIP
4. Revisions to the Emissions Budget
5. Subregional Emissions Budgets
6. Requirements For a SIP Control Strategy
to Meet the Budgets
D. NO 2 and PM—loin the Interim Period
E. NOx Reductions in Ozone Areas in the
Interim Period
F. Transportation Control Measures (TCMs)
1. Demonstration of Timely
Implementation
2. SIP Revisions Due to TCM Delays
3. Retrospective Analysis of TCMs
4. TCMs in the Absence of a Conforming
Transportation Plan and Transportation
Improvement Program (TIP)
C. Enforceability
H. Time Limit on Project-Level
Determinations
I. Interagency Consultation
1. Minimum Standards
2. Consequences of Failure to Follow
Consultation Procedures
3. Role of State Air Agencies in Conformity
Determinations
4. EPA Role in Conformity Detenninations
5. Interagency Consultation Requirements
in DOT’s Metropolitan Planning
Regulations
j. Frequency of Conformity Determinations
1. Grace Periods Following Triggers for
Redetermination
2. TIP Amendments
3. SIP Revisions as Triggers
4. Additional Triggers
5. Lapsing of Transportation Plan and TIP
Conformity Determinations
K. Fiscal Constraint
L Non-federal Projects
1. RequIrements for Adoption or s pproval
of Projects By Recipients of Funds
Designated Under Title 23 U.S.C. or the
Federal Transit Act
• 2. Disclosure and Consultation
Requirements for Non-Federal Projects
3. Response to Comments
V. Discussion of Comments
A. Applicability
1. Incomplete Data, Transitional, and “Not
Classified” Areas
2. Length of the Maintenance Period
3. Statewide Transportation Plans and
Statewide Transportation Improvement
Programs (ST1Ps)
4. Other Transportation Modes
5. Highway and Transit Operational
Actions
6. Multiple Stage Projects
7. Project-level Determinations
8. Projects Which Are Not From a
Conforming Transportation Plan and TIP
9. Multiple Nonattainment Areas and
MPOs
B. Applicable Implementation Plans
C. Conformity SIP Revisions
D. Public Participation
K Plan Content
1. Plan Specificity
2. Timeframe of the Transportation Plan
F. Relationship of Plan and TIP Conformity
With the National Environmental Policy
Act (NEPA) Process
C. Latest Planning Assumptions
H. Latest Emissions Model
I. TCMs
J. Regional Emissions Analysis
1. Regionally Significant Projects
2. Projects Included in the Regional
Emissions Analysis
3. Modeling Procedures
4. Build/no-build Test
K. Hot-spot Criteria and Analysis
L. Exempt Projects
VI. Environmental and Health Benefits
VII. Economic Impact
VIII. Administrative Requirements
A. Administrative Designation
B. Reporting and Recordkeeplng
Requirements
C. Regulatory Flexibility Act
I. Authority
Authority for the actions taken in this
notice is granted to EPA and DOT by
section 176(c) of the Clean Air Act as
amended (42 U.S.C. 7521(a)).
II. Summary of the Final Rule
This rule requires metropolitan
planning organizations (MPOs) and the
United States Department of
Transportation (DOT) to make
conformity determinations on
metropolitan transportation plans and
transportation improvement programs
(TIPs) before they are adopted,
approved, or accepted. In addition,
highway or transit projects which aru
funded or approved by the Federal
Highway Administration (FHWA) or tn
Federal Transit Administration (FTA)
must be found to conform before they
are approved or funded by DOT or an
MPO.
This rule applies to nonattainment
and maintenance areas. EPA will issue
a supplementary notice of proposed
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Federal Register / Vol. 58. No. 225 / Wednesday. November 24.
1993 I Rules and Regulations 62189
rulemaking to propose criteria and
procedures for determining conformity
in attainment areas.
The provisions of this rule apply with
respect to those transportation-related
pollutants for which an area is
designated nonattainment or is subject
to a maintenance plan approved under
Clean Air Act section 175A (i.e., ozone,
carbon monoxide (CO), nitrogen dioxide
(NO 2 ), and particles with an
aerodynamic diameter of less than or
equal to a nominal 10 micrometers (PM—
10)). The provisions of this rule also
apply with respect to the following
precursors of those pollutants: volatile
organic compounds (VOC) and oxides of
nitrogen (NO ) in ozone areas, NO in
NO 2 areas, and VOC and NO in PM—
10 areas.
This rule requires States to submit to
EPA revisions to their State
implementation plans (SIPs)
establishing conformity criteria and
procedures consistent with this rule by
November 25, 1994. However, the
requirements of this rule apply as a
matter of Federal law beginning
December 27, 1993. All conformity
determinations made after this date
must be made according to the
requirements of this rule and, after the
conformity SIP revision is approved by
EPA, according to the requirements of
the applicable SIP.
The criteria and procedures in this
rule differ according to the pollutant for
which an area is designated
nonattainment or maintenance, and
according to the type of action (i.e.,
transportation plan, TIP, project from a
conforming transportation plan and TIP.
or project not from a conforming
transportation plan and TIP). The rule
requires regional emissions analysis of
transportation plans and TIPs. All
regionally significant highway and
transit projects, regardless of Funding
source, must either come from a
conforming transportation plan and TIP.
have been included In the regional
emissions analysis of the plan and TIP
which supports the plan or TIP’s
adoption, or be included in a newly
performed regional analysis.
Transportation projects funded or
approved by FHWA or FTA must also
be analyzed for their localized air
quality impacts in PM—b and CO
nonattainment areas.
The criteria and procedures also vary
according to the period of time in which
the conformity determination is made.
Transportation plans. TIPs, and projects
must satisfy different criteria depending
on whether a State has submitted a SIP
€evision which establishes control
strategies to demonstrate reasonable
further progress and attainment. Criteria
and procedures also vary depending on
whether the SIP revision has been
submitted, approved, disapproved, or
the Clean Air Act deadline for
submission of the SIP revision has been
missed.
The final rule is being placed in both
40 CFR part 51 and 40 CFR part 93. Part
93 applies to Federal agencies
immediately, and part 51 establishes
requirements for States in s ibmitting
SIPs. The requirements of the rule are
the same in both parts, except that the
rule does not require a conformity SIP
revision in part 93.
The final rule has a variety of minor
changes from the proposal based on
comments received regarding specific
details of the regulatory text. In
addition, several major changes have
been made in response to public
comment. These include changes to the
criteria and procedures during the
interim period and specific
requirements for regionally significant
“non-federal” projects (those not
requiring FHWA or FFA funding or
approval). The reader is referred to the
Discussion of Major Issues and
Discussion of Comments sections for
details on these and other issues.
III. Background of the Final Rule
A. Histoiy of Conformity
Conformity provisions first appeared
in the Clean Air Act Amendments of
1977 (Pub. L. 95—95). Although these
provisions did not define conformity.
they provided that no Federal
‘department “shall: (1) engage in, (2)
support in any way or provide financial
assistance for. (3) license or permit, or
(4) approve any activity which does not
conform to a (State implementation
plan I after it has been approved or
promulgated.” Assurance of conformity
was an affirmative responsibility of the
head of each Federal agency. In
addition, no MPO could approve any
transportation project, program, or plan
which did not conform to a State or
Federal implementation plan.
Following enactment of the 1977
Amendments, DOT consulted with EPA
to develop conformity procedures for
programs administered by FHWA and
the Urban Mass Transportation
Administration (now FI’A). The June 14,
1978 “Memorandum of Understanding
Regarding Integration of Transportation
and Air Quality Planning” provided
EPA an opportunity to jointly review
and comment on the conformity of
transportation plans and liPs.
In April 1980. EPA published an
advance notice of proposed rulemaking
on conformity (45 FR 21590, April 1,
1980). EPA maintained that the
Congressional intent of Clean Air Act
section 176(c) was to prevent Federal
actions from causing a delay in the
attainment or maintenance of the
NAAQS. However, no further
rulemaking action was taken.
In June 1980 EPA and DOT jointly
issued a guidance document entitled
“Procedures for Conformance of
Transportation Plans, Programs and
Projects with Clean Air Act State
Implementation Plans.” This guidance
established that in nonattainment and
maintenance areas (areas experiencing
violations of the national ambient air
quality standards (NAAQS) and
required to develop air quality
maintenance plans under 40 CFR part
51, subpart D). conformity
determinations must be documented as
a necessary element of all certifications,
TIP reviews, and environmental impact
statement findings. It was necessary to
make certifications that the planning
process had been conducted according
to a continuous, cooperative, and
comprehensive transportation planning
process and consistent with Clean Air
Act requirements.
Transportation plans and programs
were considered to conform with the
SIP if they did not adversely affect the
transportation control measures (TCMs)
in the SIP, and if they contributed to
reasonable progress in implementing
those TCMs. A transportation project
would conform if it were a TCM from
the SIP, came from a conforming TIP, or
did not adversely affect the TCMs in the
SIP.
Subsequently. DOT developed and
issued an interim final rule (46 FR 8426,
January 26. 1981) based upon the joint
guidance. DOT established this rule to
meet its obligations under section 176(c)
of the Clean Air Act, and the rule was
put into effect immediately upon
publication. It amended 23 CFR part 770
(FHWA Air Quality Guidelines) and
added 49 CFR part 623 (UMTA Air
Quality Conformity and Priority
Procedures).
The rule used the joint guidance’s
definition of conformity, interpreting
conformity in the context of TCMs
rather than emissions budgets or air
quality analysis. Compliance with the
conformity requirements was to be
demonstrated as part of the planning
and National Environmental Policy Act
(NEPA) processes.
B. Conformity Under the Clean Air Act
AsAmendedin 2990
In addition to adding specific
provisions regarding the conformity of
transportation actions, the Clean Air Act
Amendments of 1990 expand the scope
and content of the conformity
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62190 Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 I Rules and Regulations
provisions by defining conformity to an
implementation plan to mean
Conformity to the plan’s purpose of
eliminating or reducing the severity and
number of violations of the national ambient
air quality standards and achieving
expeditious attainment of such standards;
and that such activities will not (I) cause or
contribute to any new violation of any
standards In any area; (ii) increase the
frequency or severity of any existing
violation of any standard in any area; or (iii)
delay timely attainment of any standard or
any required interim emission reductions or
other milestones in any area.
The Clean Air Act Amendments of
1990 emphasize reconciling the
estimates of emissions from
transportation plans and programs with
the implementation plan, rather than
simply providing for the
implementation of T Ms. This
integration of transportation and air
quality planning is intended to protect
the integrity of the implementation plan
by ensuring that its growth projections
are not exceeded without additional
measures to counterbalance the excess
growth, that progress targets are
achieved, and that air quality
maintenance efforts are not
undermined.
C. Interim EPA/DOT Conformity
Guidance
On June?, 1991, EPA and DOT jointly
issued guidance for determining
conformity of transportation plans,
programs, and projects during the
period before the final rule is
promulgated. This guidance was based
on the interim conformity requirements
in section 176(c)(3) of the CAA. This
rule will supersede the June 7, 1991,
interim guidance on its effective date.
D. Public Participation
The Notice of Proposed Rulemaking
(NPRM) for this rule was published in
the Federal Register on January 11,
1993 (58 FR 3768) as a proposed
amendment to 40 CFR part 51. A March
15, 1993 Federal Register notice
proposed the January II requirements
for 40 CFR part 93. The comment period
lasted from January 11 until March 12,
1993. and was subsequently reopened
from March 15 until May 1, 1993, in
order to allow comment in the context
of the NPRM for conformity of general
Federal actions (see next section). Over
300 written comments were received,
Including comments from Governors,
State air agencies, State DOTs. MPOs
and other local transportatton agencies,
local air agencies, the associations of
these agencies. environmental interest
groups, highway interest groups, and
private citizens. Copies of the comments
in their entirety can be obtained from
the docket for this rule (see ADDRESSES).
The docket also includes a complete
Response to Comments document for
this rule.
Three public hearings were held on
the transportation conformity NPRM
during the public comment period. In
addition, opportunity to comment on
the transportation conformity NPRM
was provided at the public hearing for
the NPRM on conformity of general
Federal actions.
E. Conformity of General Federal
Actions
Section 176(c) of the Clean Air Act
applies to all departments, agencies, and
instrumentalities of the Federal
government. This rule applies only to
the conformity of transportation plans,
programs, and projects developed.
funded, or approved under title 23
U.S.C. or the Federal Transit Act.
Criteria and procedures for determining
the conformity of all other Federal
actions (“general conformity”),
including highway and transit projects
which require funding or approval from
a Federal agency other than FHWA or
FI’A, are promulgated in a separate rule.
Criteria and procedures for determining
conformity of general Federal actions
were proposed in the Federal Register
on March 15, 1993 (58 FR 13836).
IV. Discussion of Major Issues
A. Attainment Areas
1. EPA’s Position
In the NPRM. EPA indicated that the
statute was ambiguous with respect to
whether conformity applied only in
nonattainment areas, or in attainment
areas as well. EPA received significant
public comment arguing that the statute
should be read to apply conformity also
in attainment areas, based on the
wording of Clean Air Act section
176(c)(1) and the policy merits of such
applicability. Similar comments were
received arguing that conformity did not
apply in attainment areas.
EPA continues to believe that the
statute is ambiguous, and that it
provides discretionary authority to
apply these transportation conformity
procedures to both attainment and
nonattainment areas. EPA plans to carry
out a separate rulemaking proposing to
apply transportation conformity
procedures to certain attainment areas.
EPA sees strong policy reasons not to
apply conformity in all attainment
areas, given the significant burden
associated with making conformity
determinations relative to the risk of
NAAQS violations in clean areas. Thus
EPA believes that it would be
reasonable to propose applying
conformity in attainment areas for
which air quality is close to
nonaltainment levels, for example at
85% of nonattainment levels (see
discussion below).
EPA intends to take comment on the
basic proposal to apply conformity in
attainment areas. EPA will also seek
comment on the specific application of
conformity in certain categories of
attainment areas.
Therefore, EPA intends to issue In the
near future a supplemental notice of
proposed rulemaking dealing with
conformity requirements in attainment
areas.’ The requirements of this final
rule will apply only in nonattainment
and maintenance areas, as proposed.
2. Supplemental Notice of Proposed
Rulemaking
While EPA will solicit comments on
other options, the supplemental notice
of proposed rulemaking on
transportation conformity will propose
to require conformity determinations
only in the metropolitan planning areas
(the urbanized area and the contiguous
area(s) likely to become urbanized
within twenty years) of attainment areas
which have exceeded 85% of the ozone,
co. NO 2 . PM—ID annual, or PM—ID 24-
hour NAAQS within the last three, two,
one, three, and three years, respectively.
These periods are consistent with the
way areas are designated as attainment
or nonattainment. Further, the statistical
form of the comparison to the 85%
value would follow that specified for
the relevant ambient standard.
Transportation plans. TIPs, and
projects in all other areas, including all
rural areas and all urbanized areas
which are not subject to EPA
requirements for ambient monitoring,
would be exempt From the obligation to
conduct transportation conformity
determinations, based on the de
minimis impact on air quality that
would result from transportation
activities in such areas. All attainment
areas above 85% of the CO or PM—b
standard in which motor vehicles and
transportation project construction do
not contribute significantly to ambient
levels of CO or PM—ID would also be
exempt from transportation conformity
requirements, for similar reasons.
Because the merit of exempting certain
‘For PM-b, the areas which would ha addressed
In the supplemental notice are designated
“unclassifiable.” The Clean Air Act Amendments of
1990 designated areas meeting certain qualificaitons
as nonattainment for PM—ID by operation of
redesignated to nonattainment, and kit
nonattalnment areas to be redesignated to
attainment. This rule refers to areas redesignated to
attainment as ‘ mainIenance areas.”
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Federal Register / Vol. 58, No. 225 / Wednesday , November 24, 1993 I Rules and Regulations 62191
areas from conformity requirements will
vary depending on the activities being
regulated, the general conformity rule
may propose different exemptions for
applicability of conformity requirements
in attainment areas than those for
transportation conformity.
EPA intends to propose flexible, low-
resource procedures and criteria for the
attainment areas subject to the
conformity requirements to demonstrate
the conformity of transportation plans,
TIPs, and projects.
B. Interim Period
1. Background
As discussed in the NPRM, there
exists an “interim period” which lasts
until EPA approves SIPs with control
strategies demonstrating attainment and
reasonable further progress, or
maintenance. Once these control
strategy SIPs are approved, conformity
of plans and liPs shall be demonstrated
by comparing the emissions expected
from the transportation system when the
transportation plan and TIP are
implemented to the emissions “budget”
established in the SIP. However, during
the interim period. section
176(c)(3)(A)(iii) of the Clean Air Act
allows positive conformity
determinations where transportation
plans and TIPs contribute to annual
emission reductions in ozone and CO
nonattainment areas.
Although the interim period
discussed in the Clean Air Act lasts only
until the conformity SIP revisions are
approved, EPA is extending the interim
requirements until the control strategy
SIPs are submitted, because it would be
impossible to apply the emissions
budget test prior to that time. EPA is
also establishing interim criteria in PM—
10 and NO 2 nonattainment areas
because Clean Air Act section
176(c)(1)(ii) clearly refers to the Federal
activity avoiding increases in the
frequency or severity of any standard.
Interim criteria for PM—b and NO 2
areas are discussed in section IV.D. of
this preamble. EPA sees no way to
ensure that activities will not contribute
to violations short of requiring
reductions in emissions.
For ozone and CO areas, the NPRM
proposed a “build/no-build” test which
requires a regional emissions analysis to
demonstrate that the emissions from the
transportation system in future years. if
it included the proposed action and all
other expected regionally significant
projects, would be less than the
emissions from the current
transportation system in future years.
EPA received substantial public
comment on the adequacy of the “build!
no-build test” as a demonstration of
contribution to annual emission
reductions. In particular, conformity
determinations being made according to
this test are showing insignificant
emission reductions, which commenters
claim are not consistent with the need
to achieve reasonable further progress as
necessary to attain, as required by
sections 182(b)(1) and 187(a)(7) and
referenced by section 176(c)(3)(A)(iii) of
the Clean Air Act. In addition, EPA
itself expressed concern in the NPRM’s
preamble that there might be long
delays before emissions budgets are
approved.
2. Phase II of the Interim Period
Phase I of the interim period, which
ends December 27, 1993, was covered
by the EPA/DOT joint guidance of June
7, 1991. The final rule defines Phase II
of the interim period as beginning on
December 27, 1993.
The final rule retains the criteria
which the NPRM proposed for Phase II
of the interim period. In particular,
regional analysis of transportation plans
and TIPs in ozone and CO areas will
have to satisfy the build/no-build test
proposed in the NPRM and demonstrate
emissions reductions from 1990 levels,
EPA continues to believe, as stated in
the NPRM preamble, that it is not
appropriate for EPA to require specific
annual emissions reductions before they
have been established by the State in the
reasonable further progress and
attainment demonstrations (“control
strategy SIP revisions”). EPA believes
the States should be allowed to decide
how much reduction to require from
motor vehicles and how much to require
from stationary sources. Commenters
also expressed substantial support for
this approach.
However, In order to achieve emission
reductions that are more consistent with
the SIP’s emission reduction targets as
soon as possible, EPA is ending Phase
II with either the submission of the
control strategy SIP revision or the
Clean Air Act deadline for submission
of the control strategy SIP revision.
whichever is earlier. In contrast, the
NPRM proposed that Phase II would last
until approval of the control strategy
SIP.
3. Transitional Period
When a State submits to EPA a
control strategy SIP revision which has
been endorsed by the Governor and
subject to a public hearing, Phase II
ends and the “transitional” period
begins. The final rule defines the
transitional period to be the time
between submission of the control
strategy SIP revision and EPA final
action on the control strategy SIP (i.e..
full approval or disapproval).
During the transitional period.
transportation plans and TIPs are
required to be consistent with the
emissions budget in the submitted
control strategy SIP. EPA believes that
an MPO should observe the emission
budgets established by the State for its
area once the SIP has been endorsed by
the Governor and submitted to EPA,
rather than apply only the build/no-
build test while waiting for EPA
approval of the budget, because of
concern about the potential length of the
interim period and the need for
reasonable further progress by 1996.
EPA believes it is appropriate to require
the transportation community to begin
contributing its part to the motor vehicle
emissions reduction plan adopted by
the State immediately, even before EPA
approval.
In order to ensure that the SIP
emission budget does not loosen the
interim requirement for contribution to
annual emission reductions while
awaiting EPA approval, areas must
demonstrate satisfaction of the build/no-
build test in addition to consistency
with the submitted emissions budget.
Because it is the “build” scenario which
is compared with the emissions budget.
two separate emissions analyses are not
necessary to demonstrate both the
build/no-build test and consistency
with the emissions budget.
Submission of a control strategy SIP
revision triggers a requirement for the
transportation plan and TIP to be found
to conform according to the transitional
period criteria and procedures. For
control strategy SIP revisions which are
submitted after November 24, 1993, the
conformity of transportation plans and
TIPs must be determined according to
the transitional period criteria within 12
months from the Clean Air Act deadline
for submission. During this 12-month -
period, the existing plan and TIP are
still valid, and projects from the existing
plan and TIP may proceed, provided the
NEPA process is completed and the
project has been found to conform.
However, if the transportation plan and
‘I’IP have not been demonstrated to
conform according to the transitional
period criteria within 12 months from
the Clean Air Act deadline for control
strategy SIP submission, the
transportation plan and l’lP lapse, and
no projects may proceed except for
projects which had already completed
the NEPA process and had a pro ject-
level conformity determination; projects
which are exempted by the conformity
rule; and non-federal projects which are
not regionally significant or which do
not involve recipients of Federal funds.
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62192 Federal Register / Vol.58. No. 225 / Wednesday, November 24, 1993 I Rules and Regulations
Although existing transportation
plans and TIPs remain vali d for 12
months following the Clean Air Act
deadline, new transportation plans and
TIPs which are approved more than 90
days following submission of the
control strategy SIP revision must be
found to conform according to
transitional period criteria and
procedures. During the first 90 days
following submission of the control
strategy SIP revision, new transportation
plans and TIPs may be found to conform
according to the Phase II interim period
criteria and procedures. However, the
conformity status of these transportation
plans and TIPs will lapse 12 months
from the Clean Air Act deadline for
submission if conformity is not
redetermined according to the
transitional period criteria and
procedures.
The 90-day period is intended to
accommodate MPOs which are close to
completing a long-scheduled plan and
TIP adoption at the time the SIP
revision is submitted, to provide DOT
time to review and concur in those (and
any pending previous) MPO actions
which it must review, and to provide
time for all involved parties to obtain
and understand the budget implications
of the SIP revision.
The 12-month period to redetermine
conformity according to the transitional
period criteria and procedures is an
outside limit: EPA hopes that most
MPOs will revise their TIPs as necessary
and redetermine conformity even earlier
than within 12 months. A date certain
is provided (rather than starting the 12
months on the date of submission) to
avoid creating an incentive for delay of
the SIP revision.
For areas which submitted a control
strategy SIP revision before November
24, 1993, transportation plans and TIPs
must be redetermined according to
transitional period criteria and
procedures by November 25, 1994, or
they will lapse. Conformity
determinations on new transportation
plans and TIPs must be made according
to the transitional period criteria
beginning February 22, 1994. New
transportation plans and ‘liPs may be
found to conform according to Phase II
interim period criteria until February
22, 1994, but these conformity
determinations will lapse November 25,
1994 11 they are not redetermined
according to transitional period criteria
and procedures.
At any time during the transitional
period when the currently conforming -
transportation plan and TIP have not yet
been found to conform according to the
transitional period criteria and
procedures, the State air agency must be
consulted regarding any new regionally
significant project which would
increase single-occupant vehicle
capacity (a new general purpose
highway on a new location or adding
general purpose lanes), The State air
agency must be consulted on how the
emissions from the implementation of
the currently conforming transportation
plan and TIP (estimated in the ‘build”
scenario in the transportation plan and
TIP’s conformity determination)
compare to the motor vehicle emissions
budget in the SIP, or the projected motor
vehicle emissions budget in the SIP
under development. The State air
agency may escalate to the Governor any
unresolved disputes, as with any State
air agency comments on a conformity
determination.
Because SIPs must contain specific
measures to achieve the planned
emissions reductions, and in the case of
transportation the MPG should have
assisted in developing these measures,
the rule’s transitional period
requirements should not impose any
unanticipated or impossible burden on
the MPO. In fact, EPA anticipates that
many control strategy SIPs will be
developed from an emissions analysis of
the transportation plan and TIP which
are in place at the time of SIP
submission. Where the MPO’s analysis
of the plan and TIP was used for the
SIPs emissions projection and there are
no projects in the SIP which are not
from the transportation plan and TIP.
the rule states that the MPO and DOT
can determine conformity of the
transportation plan and TIP according to
the transitional criteria without new
emissions modeling and without having
to apply the criteria for current planning
assumptions and latest emissions
models. If the MPO and DOT avail
themselves of this option, however, the
three-year limit for full redetermination
of the plan and TIP is not reset.
As described more completely in the
next section of this preamble, the rule
provides that a SIP submittal is
sufficient to start the transitional period
even if it includes only commitments to
implement some parts of the control
strategy. The MPG and DOT may
assume future implementation of the
committal measures when testing the
transportation plan and TIP against the
new budget.
A SIP containing only commitments
for some measures may occur if a State
has devised a strategy for meeting an
emission reduction or attainment
requirement of the Clean Air Act, but it
has not adopted all measures in the
strategy in an enforceable form suitable
for EPA approval. For example, certain
VOC limits for consumer products may
not have been adopted yet, or an
inspection program for diesel trucks
aimed at PM—b reductions may not
have been put in regulatory form yet.
However, emission reductions for these
measures may have been quantified and
included in the total emission
reductions for the strategy.
EPA’s tolerance of committed
measures when starting the transitional
period is intended to allow the
transportation community to proceed
with its part of the strategy while the
State works to complete full adoption of
the committed measures. (The State may
be under a sanctions clock or even
under sanctions during some or all of
this period.) This respect for
commitments in SIP revisions for
conformity purposes is distinct from the
possibility of EPA conditionally
approving conimittals under section
nO(k)(4). Today’s rule does not
prejudge EPA action in regard to
completeness or incompleteness
findings, approvals, conditional
approvals, partial approvals, or
disapprovals of SIP revisions.
Once EPA has approved the control
strategy SIP revision, the transitional
period ends and the control strategy
period begins. During the control
strategy period, the regional test for
transportation plans and TIPs requires
only consistency with the motor vehicle
emissions budget in the approved SIP.
Conditional approval or approval of
specific control measures without
approval of the SIP as a whole as
meeting the applicable Clean Air Act
requirement does not terminate the
transitional period. 4. Control Strategy
SIP Revisions EPA Finds State Failed to
Submit, Finds Incomplete, or
Disapproves.
EPA believes it is reasonable to
interpret the requirement to contribute
to emission reductions as demanding
some greater contribution where the
State has failed to establish emission
budgets in a timely fashion, and as the
time remaining before the attainment
deadline decreases. EPA believes that In
the prolonged absence of a control
strategy SIP which allocates the
emission reductions required by the
Clean Air Act among sources, allowing
no new conformity determinations and
postponing new commitments of funds
will prevent uncontrolled emissions
increases by delaying projects with
emissions impacts until the State has
established control strategies consistent
with reasonable further progress and
attainment. This will also provide
incentive for the relevant actors within
the State to agree on control strategies
and emissions budgets for the SIP.
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Federal Register F Vol. 58. No. 225 / Wednesday. November 24. 1993 I Rules and Regulations 62193
lithe control strategy SIP revision is
not submitted, tio new transportation
plans or TIPs may be found to conform
beginning 120 days after the Clean Air
Act deadline. It EPA finds the
submission to be incomplete, no new
transportation plans or TIPs may be
found to conform beginning 120 days
after the incompleteness finding. In both
cases, the conformity status of the
existing transportation plan and TIP
lapses 12 months after the date that the
Clean Air Act requires submission of the
control strategy SIP revision.
Where a control strategy SIP revision
has not been submitted, no new
transportation plans and i’ll’s may be
found to conform 120 days after the
Clean Air Act SIP deadline provided
EPA has notified the State. MPO. and
DOT that the State had failed to submit
the SIP revision. EPA will strive to issue
findings of failure to submit the
required SIP revision within 60 days
following the Clean Air Act deadline,
Such a finding starts a non-discretionary
sanctions clock under section 179(b) of
the Clean Air Act and EPA will so notify
the State. lathe case of such a failure,
EPA will also consider whether it is
appropriate to propose and impose
discretionary sanctions under section
110(m).
The conformity status of the
transportation plan and TIP will lapse
120 days after EPA’s final disapproval of
the control strategy SIP revision wholly
or in part because it lacks an adequate
control strategy, and no new project-
level conformity determinations may be
made. Because such disapproval will be
proposed as a rulemaking action before
it is final, affected parties will he
provided adequate notice.
EPA has already made findings of
failure to submit or failure to submit
complete control strategy SIP revisions
for some CX) nonattainment areas and
some moderate PM—b areas, as these
revisions were due for certain areas on
November 15, 1992 and November 15,
1991, respectively. The conformity
status of transportation plans and TIPs
in these areas will lapse one year from
today. i.e., November 25,1994, if the
Failure has not been remedied by then
and acknowledged by a letter from the
EPA Regional Administrator. Also, if
EPA has already disapproved or in the
next 120 days disapproves any
submission that has been made, the
conformity status of transportation
plans and TIPs will lapse March 24,
1994. These delays are intended to give
MPOs and others in these areas
equitable notice of this rule’s
requirements and reasonable
opportunity to adjust to them.
EPA believes that the restrictions just
stated following a finding that a control
strategy submittal is incomplete or
following disapproval of such a
submittal are inappropriate if the only
reason for these findings is that the State
has not completed legislation or
rulemaking to put all of the measures in
its otherwise adequate strategy into
enforceable legal forms. A State may
submit a SIP revision (or may have
already submitted one prior to today) to
EPA which contains certain emission
reduction measures in adopted rule or
other legally enforceable form which are
by themselves clearly inadequate to
meet the relevant emission reduction
requirement of the Clean Air Act (for
example, the 15 percent rate-of-progress
requirement for moderate and above
ozone nonattainment areas), but
accompanied by commitments to
complete adoption of additional
specifically identified measures which
if implemented would bring the total
emission reduction to an approvable
level (according to calculations in the
SIP submittal).
EPA may find such a SIP submittal
incomplete and so notify the State, with
an explicit statement that EPA
nevertheless considers the revision to
meet the description just given. In this
case, the transitional period would
continue. The consequences described
above for failure to submit or for
incompleteness (limited period for
further conformity determinations, lapse
of the plan and TIP) will not ensue on
the timeframe described there. Rather.
the MPO and DOT may treat the
submittal as if it were complete and still
being evaluated by EPA for substantive
approvability, and continue to make
conformity findings for new plans and
TIPs and for projects using transitional
criteria. However, EPA is concerned that
the MPO not rely on the budget
indefinitely lithe State in fact does not
complete adoption of the measures to
which it committed or other equivalent
measures. Therefore, the rule provides
for the plan and TIP to lapse 12 months
after the date of the EPA incompleteness
finding, or 12 months from today in the
case of an incompleteness finding made
prior to today. This lapse will be
avoided if the State remedies the failure
and the EPA Regional Administrator
recognizes that action by letter.
If the conformity status of the
transportation plan and TIP lapse, no
new project-level conformity
determinations may be made until a
control strategy SIP revision is
submitted (thereby starting the
transitional period). Also, although non-
federal projects do not require
conformity determinations, recipients of
Federal aid may not approve or adopt
regionally significant non-fuderal
projects in the absence of a conforming
plan and TIP (see section IV.L. of this
preamble). Only projects which are
exempted by the conformity rule,
projects which have completed all plan.
TIP, and project conformity
determinations, and non-federal projects
which are not regionally significant or
which do not involve recipients of
Federal funds may proceed.
5. Future SIP Revisions
For many ozone nonattainment areas.
post-1996 reasonable further progress
demonstrations and attainment
demonstrations are required to be
submitted by November 15. 1994. This
constitutes a deadline for a control
strategy implementation plan, and the
requirements described above apply
even if the 1996 reasonable further
progress demonstration has been
submitted or approved. For example,
the conformity status of transportation
plans and TIPs will lapse as described
above if States fail to submit the post.
1996 reasonable further progress and
attainment demonstration within 120
days of this deadline. Similarly, the
requirements of the transitional period
will apply as described above once the
post-1996 reasonable further progress
and attainment demonstration is
submitted.
Subsequent SIP revisions which
adjust the control strategy and do not
have a specific deadline established by
the Clean Air Act trigger conformity
redeterrninations within an 18-month
time period, as originally proposed in
the NPRM. The transitional period
requirements do not apply in the case of
such SIP revisions.
C. Emissions Budgets
After SIPs which demonstrate
reasonable further progress and
attainment are submitted, conformity
determinations will involve
demonstrating consistency with the
SIP’s motor vehicle emissions budget.
Section 176(c)(2)(A) of the Clean Air Act
specifically requires conformity
determinations to show that “emissions
expected from implementation of plans
and programs are consistent with
estimates of emissions from motor
vehicles and necessary emission
reductions contained in the applicable
implementation plan.” SIP
demonstrations of reasonable further
progress. attainment, and maintenance
contain these emissions estimates and
“necessary emission reductions.” The
emissions budget is the mechanism EPA
has identified for carrying out the
demonstration of consistency.
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62194 Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 I Rules and Regulations
While other mechanisms exist to
show that Federal actions do not cause
or contribute to a violation of an
ambient standard for a regional
pollutant—such as duplication of the
SIP’s dispersion modeling for the
transportation network represented by
the transportation plan or TIP—the
Clean Air Act specifically requires an
emt sions-based comparison between
the transportation planmP and the SIP.
EPA believes that with respect to
regional-scale pollutants, such.a
comparison also suffices as the required
showing that violations will not be
caused or exacerbated, since the air
quality analysis in the SIP can be relied
upon to show that the SIP emission
level is acceptable in this regard.
1. What Is a Motor Vehicle Emissions
Budget?
Motor vehicle emissions budgets are
the explicit or implicit identification of
the motor vehicle-related portions of the
projected emission inventory used to
demonstrate reasonable further progress
milestones, attainment, or maintenance
for a particular year specified In the SIP.
The motor vehicle emissions budget
establishes a cap on emissions which
cannot be exceeded by predicted
highway and transit vehicle emissions.
SIPs for some nonattainment areas
will not have budgets because there is
no Clean Air Act requirement for a SIP
revision demonstrating attainment.
reasonable further progress, or annual
emission reductions. The rule provides
for such areas in § 51.464, “Special
provisions for nonattainment areas
which are not required to demonstrate
reasonable further progress and
attainment.”
Other SIPs submitted to EPA prior to
today’s rule which demonstrate
attainment, reasonable further progress,
or annual emissions reductions do have
budgets as defined in the rule, although
they may not have their emissions
budgets explicitly labeled because the
requirement for a comparison to an
emissions budget is established in this
rule and may not have been fully
appreciated by the State. In such cases,
the attainment or maintenance highway
and transit mobile source inventory
serves the purpose of a motor vehicle
emissions budget (see “Locating the
Motor Vehicle Emissions Budget in the
SIP,” below). EPA’s General Preamble
for the Implementation of Title I of the
Clean Air Act Amendments of 1990 (57
FR 13557, April 16, 1992) did indicate
EPA’s intent to require the use of SIP
motor vehicle emissions budgets for
conformity demonstrations. In future
SIPs, explicit identifleation of the
emissions budget is strongly preferred
in order to reduce misinterpretation.
The SIP necessarily defines an
emissions budget for the attainment year
in an attainment demonstration, for the
maintenance period in a maintenance
plan, and for certain milestone years.
The SIP may also set budgets for interim
years as necessary to demonstrate
attainment, and the SIP may explicitly
provide for a NO budget on the dates
for which ozone nonattainment areas
are required to have VOC milestones.
The emissions budget applies as a
ceiling on emissions in the year for
which it is defined, and for all
subsequent years until another year for
which a different budget is defined or
until a SIP revision modifies the budget.
For example, an emissions budget for a
milestone year remains in effect until
the next milestone year, when another
emissions budget supersedes it. The
attainment demonstration establishes an
emissions budget for the attainment
year. and that budget remains in effect
until the area is redesignated and EPA
approves a maintenance plan, which
may establish a different emissions
budget. When a required SIP revision
which should add additional budget
years is late or disapproved, the
conformity status of the transportation
plan and TIP will subsequently lapse,
and the existing budget ceases to apply
for the purposes of demonstrating
conformity.
The emissions budget included in the
attainment demonstration may be
different than that included in the
maintenance demonstration since the
geographic and temporal distribution of
emissions may change between the two
modeling efforts. Also, a State may
choose to shift the balance between
motor vehicles and oLher sources,
provided such a shift is consistent with
continuing maintenance.
At the State’s option, a SIP may
contain an early demonstration of
maintenance following the attainment
date, with a different motor vehicle
emissions budget in each year. In all
situations, the emissions budget in the
SIP must be consistent with the
attainment or maintenance
demonstration and any interim
requirements of the Clean Air Act.
In general, all pollutants and
associated precursors for which an area
is designated nonattainment or subject
to a maintenance plan approved under
Clean Air Act section 175A and which
are associated with highway and transit
vehicles should be explicitly identified
in the emission budget and included in
the SIP. Conformity determinations
must demonstrate consistency with the
motor vehicle emissions budget for each
pollutant and precursor identified in the
SIP.
However, in some nonattainment and
maintenance areas, the SIP may
demonstrate that highway and transit
vehicle emissions are an insignificant
contributor to the nonattainment
problem. for example. CO or PM—b
violations near industrial sources. For
areas with control strategy SIPs which
have already been submitted and which
demonstrate that motor vehicle
emissions (including exhaust,
evaporative, and reentrained dust
emissions) are insignificant and
reductions are not necessary for
attainment, the conformity
determination is not required to satisfy
the criteria for regional emissions
analysis of that pollutant. If the control
strategy SIP demonstrates that motor
vehicle emissions of a precursor are
insignificant and reductions are not
necessary for attainment, the conformity
determination is not required to satisfy
the criteria for regional emissions
analysis of the precursor. In the future,
the SIP must explicitly state that no
regional emissions analysis of a
particular pollutant or precursor is
necessary for attainment, and therefore
is not necessary for conformity.
All highway and transiL related source
categories that con Lribute to the
nonattainment problem should be
identified and included in the motor
vehicle emissions budget, including
exhaust, evaporative, and reentrained
dust emissions (including emissions
from antiskid and deicing materials,
where treated as mobile source
emissions by the SIP). States vary in
whether they treat vehicle refueling
emissions as mobile or stationary area
sources, If the SIP is silent or ambiguous
on intent regarding refueling emissions,
these emissions should not be
considered to be part of the motor
vehicle emissions budget and the
regional emissions estimates for a plan,
TIP or project should not include them.
It is more common to include refueling
emissions in a non-mobile source
category, and MPOs do not have control
over refueling emissions.
2. Emissions Budget Test
A regional analysis must estimate Lhe
emissions which would result from the
transportation system if the
transportation plan and TIP were
implemented, and compare these
emissions to the motor vehicle
emissions budget identified in the SIP.
If the emissions associated with the
transportation plan and TIP are greater
than the motor vehicle emissions
budget, the transportation plan and TIP
do not conform. This may occur even
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Federal Register / Vol. 5b, No. 225 / Wednesday, November 24, 1993 I Rules and Regulations 62195
though alt transportation measures in
the SIP are being properly implemented;
for example, if population and VMT
growth are higher than predicted when
the SIP was developed, motor vehicle
emissions may exceed the SIP’s budget
for such emissions.
Under no circumstances may motor
vehicle emissions predicted in a
conformity determination exceed the
motor vehicle, pollutant.specific
emissions budget. If actual emissions of
pollutants are lower than their SIP
emissions budgets, or if the emisdbns
budgets themselves are lower than
actually necessary to demonstrate
attainment, maintenance, or other
milestones, the motor vehicle emissions
budget may be increased only if the
State submits a SIP revision which
changes the various emissions budgets.
Such a SIP revision must meet all
applicable Clean Air Act requirements,
including those of section 110(1).
Conformity determinations may not
trade emissions among SIP budgets for
pollutants, precursors, or highway/
transit versus other sources unless a SIP
revision for the specific trade is
submitted and approved by EPA or the
SIP establishes mechanisms for such
trading.
Today’s final rule requires
transportation plans and TIPs to
demonstrate consistency with the SIP’s
motor vehicle emissions budget by
performing a regional emissions
analysis. This emissions analysis must
include emissions from the
nonattainment or maintenance area’s
entire existing transportation network
(as described in the rule), in addition to
all proposed regionally significant
Federal and non-federal highway and
transit projects. The regional emissions
analysis must estimate total projected
emissions for certain future years
(including the attainment year), and
may include the effects of any emission
control programs which are already
adopted by the enforcing jurisdiction
(such as vehicle inspection and
maintenance programs and reformulated
gasoline and diesel fuel). In the
transitional period, the effects of
emission control programs which are
committed to in the submitted SIP may
also be included.
When performing the regional
emissions analysis for the purpose of
the budget test, attention must be paid
to the season and time period for which
the SIP defines the emissions budget.
and the period used by the MPO and
DOT to estimate regional emissions for
a plan, TIP, or project. For example.
reasonable further progress milestones
for ozone areas are defined in the Clean
Air Act based on annual emissions, but
EPA interprets this to mean emissions
when temperatures, congestion levels,
and other conditions are typical of a day
during the ozone season (a typical
summer weekday), multiplied by 365
days. rather than actual annual
emissions across all seasons. Further,
EPA guidance in “Procedures for
Emission Inventory Preparation Volume
IV: Mobile Sources” (EPA 450/4—81—
026d (revised), 1992) specifies a
particular way to select temperature
values for the emissions estimates. Also,
SIPs may calculate emission reductions
from fleet turnover using either July 1 of
the milestone year, or November 15 (by
interpolating between the July 1 and
January a outputs of the emissions
model). The MPO and DOT should
duplicate the temperature, season, and
time period inputs used in the SIP when
estimating future emissions for
comparison to the emissions budget, or
must a Iply appropriate adjustments to
avoid any distortion in the comparison.
Where a nonattainment area contains
multiple MPOs, the control strategy SIP
may either allocate emissions budgets to
each metropolitan planning area, or the
MPOs must act together to make a
conformity determination for the
nonattainment area. If a metropolitan
planning area includes more than one
air basin or nonattainment area, a
conformity determination must be made
for each air basin or nonattainment area.
The conformity SIP revision must
establish interagency consultation
procedures which address how
conformity determinations will be made
in such circumstances.
3. Locating the Motor Vehicle Emissions
Budget in the SIP
Existing SIPs may not all have an
explicitly labeled motor vehicle
emissions budget. EPA indicated in the
General Preamble to Title I of the Clean
Air Act Amendments of 1990 that the
highway and transit vehicle related
emissions included in the SIP would be
considered to be the emissions budget.
Without a clearly indicated intent in the
SIP otherwise, the SIP’s estimate of
future highway and transit emissions
used in the milestone or attainment
demonstration is the motor vehicle
emissions budget.
In general, the SIP will either (1)
demonstrate that once the control
strategies in the SIP are implemented,
emissions from all sources will be less
than the identified total emissions that
would be consistent with attainment,
maintenance, or other required
milestone; or (2) demonstrate that
emissions from all sources will result in
achieving attainment prior to the
attainment deadline or will result in
ambient concentrations in the
attainment deadline year which are
lower than necessary to demonstrate
attainment. In either case, the SIP
demonstration will rely on a projection
of emissions from each source category
for the attainment year, maintenance
period, or other milestone year. The
projection of motor vehicle emissions is
the motor vehicle emissions budget.
Where the estimate of emissions from
all sources is less than required to
demonstrate the milestone, attainment,
or maintenance, the SIP may explicitly
quantify the “safety margin” and
include some or all of it in the motor
vehicle emissions budget for purposes
of conformity. Where the existing SIP is
unclear, the State air agency and the
appropriate EPA Regional Office should
be consulted through the interagency
consultation process to define the
emission budget. Unless the SIP
explicitly quantifies the “safety margin”
and explicitly states an intent that some
or all of this additional amount should
be available to the MPO and DOT in the
emissions budget for conformity
purposes, the MPO may not interpret
the budget to be higher than the SIP’s
estimate of future highway and transit
emissions.
If the attainment demonstration
includes projections of emissions
beyond the attainment year, these
projections are not considered
emissions budgets for the purposes of
transportation conformity unless the SIP
explicitly states such an intent. Where
the attainment SIP does not establish
explicit emissions budgets for years
following the attainment year, emissions
in analysis years later than the
attainment year must be consistent only
with the attainment year’s emissions
budget.
Like the attainment SIP, the
maintenance plan contains a
quantitative demonstration that the
NAAQS can be met for a given period
of time into the future. Section 175A of
the Clean Air Act requires a
maintenance plan to provide for
maintenance for a period of ten years
from its approval by EPA, but the Act
does not specify any particular
milestones within this period for which
an analysis and demonstration must be
made. At a minimum, the SIP should
establish an emissions level that will
demonstrate maintenance at the end of
the ten-year period. EPA will be
releasing more specific guidance
regarding conformity to budgets in
maintenance plans in the future. For
areas that have been redesignated to
attainment prior to this rule, the MPO
and DOTshould work with the EPA
Regional Office through the interagency
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62196 Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations
consultation process to interpret the
maintenance plan to define an
emissions budget. EPA recommends
amending maintenance plans to
explicitly identify the motor vehicle
emissions budget.
Some moderate PM—b nonattainment
areas may have submitted SIPs which
demonstrate that the area cannot attain
the PM—b standard by the applicable
attainment date. These areas have been
or will be reclassified as serious areas
under section 188(b) of the Clean Air
Act. Such SIPs which do not
demonstrate attainment do not have
budgets and are not considered control
strategy SIPs for the purposes of
transportation conformity. Until an
attainment demonstration is submitted,
these areas must satisfy the interim
period criteria in order to demonstrate
conformity.
The above discussion on locating the
emissions budget in the SIP assumed a
simple case in which the geographic
boundary of the area to which the
budget applies is the same as the
nonattainment area boundary. This is
the case for ozone nonattainment areas.
The Clean Air Act explicitly defines
reasonable further progress
requirements In terms of the emissions
inventory for the entire nonattainment
area, and EPA believes that the best
Interpretation is that the Act also means
to have the attainment budget also be
defined for the nonattainment area per
so. While ozone area SIPs may contain
estimates of current and future
emissions outside the nonattainment
area, these are not budgets for purposes
of conformity (unless the State in its
conformity SIP revision chooses to go
beyond the requirements of the rule).
For CD, PM—b, and NO 2
nonattainmeut areas, there are either no
Clean Air Act requirements for
reasonable further progress, or the
requirements are not explicitly defined
in terms of the nonattainment area
inventory as a whole. Moreovei, it may
be possible for a SIP to demonstrate
attainment for one of these pollutants
based on an emissions and dispersion
modeling domain that is either less or
more than the nonattainment area. For
example, an entire county may be
designated nonattainment for CO. but
the actual area of violations and the area
analyzed in the SIP may be less than the
entire county. CO. PM—to, and NO 2
modeling may also in some cases extend
beyond the boundary of the designated
nonattainment area, to capture the effect
of transport from surrounding areas. If
the geographic domain of an attainment
demonstration and its emissions
estimates are less than the CO. PM—to,
or NO 2 nonattainment area and the SIP
does not explicitly indicate an intent
otherwise, EPA believes the budget
applies to that domain. The MPO and
DOT should analyze emissions from the
transportation plan and TIP for the same
area in a consistent manner. If the
modeling domain extends beyond the
nonattainment area, the budget applies
for the portion within the
nonattainment area boundary.
4. Revisions to the Emissions Budget
The emissions budget may be revised
at any time through the standard SIP
revision process, provided the SIP
demonstrates that the revised emission
budget will not threaten attainment and
maintenance of the standard or any
milestone in the required timeframe.
The State may choose to revise its SIP
emissions budgets in order to reallocate
emissions among sources or among
pollutants and precursors. For example,
if the SIP is revised to provide for
greater control of stationary source
emissions, the State may choose to
increase the motor vehicle emissions
budget to allow corresponding growth
In motor vehicle emissions (provided
the resulting total emissions are still
adequate to provide for attainmentl
maintenance of the NAAQS and to
satisfy all other applicable requirements
of the Clean Air Act, including section
110(1)). Such a SIP revision must be
approved by EPA before it can be used
for the purposes of transportation
conformity.
In cases where a SIP submitted prior
to November 24, 1993 does not have an
explicit emissions budget but quantifies
a “safety margin” by which emissions
from all sources are less than the total
emissions that would be consistent with
attainment, the State may submit a SIP
revision which assigns some or all of
this safety margin to highway and
transit mobile sources for the purposes
of conformity. Such a SIP revision, once
it is endorsed by the Governor and has
been subject to a public hearing, may be
used for the purposes of transportation
conformity before it is approved by
EPA. All other SIP revisions adjusting
the highway and transit emissions
budget must be approved by EPA before
they are used for the purposes of
transportation conformity.
EPA would allow early use of a SIP
revision which reallocates part of the
safety margin because some SIPs were
developed before this rule and without
awareness that in the absence of an
explicit budget, the emissions
projections would be used as the
emissions budget for the purposes of
conformity. Areas which submit SIPs
with budgets after the publication of
this rule will also be using the SIP’s
budget for conformity purposes before it
is approved by EPA.
5. Subregional Emissions Budgets
The SIP may specify emissions
budgets for subareas of the region.
provided that the SIP includes a
demonstration that the subregional
emissions budget. when combined with
all other portions of the emissions
inventory, will result in attainment and/
or maintenance of the standard. The
conformity determination must
demonstrate consistency with each
subregional emissions budget in the SIP.
EPA’s General Preamble for the
Implementation of Title I of the Clean
Air Act Amendments of 1990 discussed
the possibility of subregional budgets
(57 FR 13558, April 16, 1992).
6. Requirements for a SIP Control
Strategy to Meet the Budgets
A SIP may not select a desired level
of future highway and transit emissions
and rely on the requirement for
conformity findings by the MPO and
DOT to achieve that level of emissions
without specifying control measures
which are expected to result in that
emission level and demonstrating that
each measure is enforceable and has
adequate resources for implementation
(see sections 11O(a)(2) (A), (B), and (E)
of the Clean Air Act). An approvable SIP
must indicate how the State expects to
be able to achieve each budgeted level
(including any subregionally budgeted
level) of emissions by the relevant date.
The MPO will usually have been
involved in estimating “baseline” future
emissions (i.e., emissions in the absence
of any new actions to control them), and
in designing and estimating benefits for
any new controls that are identified in
the SIP.
Any type of transportation action
affects emissions under some
conditions, and therefore the SIP’s
demonstration of future emissions will
in a sense rely on the full collection of
those actions that were assumed. EPA
believes that all actions which the SIP
relies on to reduce travel, such as plans
for expanded transit, HOV lanes, other
high occupancy facilities or services,
and other demand management
measures which are reflected in the
emissions analysis, do require
enforceable commitments from the
agencies who will undertake them.
Generally, inclusion in the
transportation plan and TIP in effect at
the time of SIP submittal will be
sufficient evidence of adequate
resources.
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D. NO, and PM—b in the Interim Period
EPA proposed in the NPRM to allow
no increase in NO and PM—b
emissions above 1990 levels in NO 2 and
PM—la nonattainment areas. As
described in the preamble to the NPRM,
EPA proposed this requirement rather
than the build/no-build test proposed
for ozone and CO areas because EPA is
not certain what degree of VMT
reduction might be needed to pass a
build/no-build comparison. and because
the Clean Air Act did not appear to
require it. (The requirement for
contribution to annual emission
reductions only refers to ozone and CO
areas.)
EPA received significant public
comment that a 1990 ceiling on NOx
and PM—b emissions would impose
stringent VMT reduction requirements
on many areas. In particular, because
PM—ID emissions from reentrained dust
are closely related to VMT levels, areas
with significant emissions from
reentrained dust may have to freeze or
decrease VMT in order to demonstrate
emissions below 1990 levels.
Therefore, in the final rule EPA
allows NO 2 and PM—b nonattainment
areas to demonstrate conformity by
either keeping emissions below 1990 (or
some other baseline) levels, or by
satisfying a build/no-build test. EPA
believes that either of these
demonstrations is sufficient to assure
that there is no increase in the
frequency or severity of existing
violations during the interim period
which can be attributed to the
transportation plan. TIP, or project
itself. The build/no-build test is
consistent with the interim
requirements for ozone and CO areas
and sufficient to ensure that the
transportation plan, TIP, or project is
not itself causing a new violation or
exacerbating an existing one. EPA is
retaining the option of keeping
emissions below 1990 (or some other
baseline) levels because some
commenters expressed support for this
approach, and EPA believes some
flexibility should b allowed in the
absence of definitive information on the
VMT reductions necessaiy for an area to
meet either the build/no-build test or an
emissions ceiling.
EPA noted in the preamble to the
NPRM that there is no requirement for
a 1990 inventory in PM—b and NO,
nonattainment areas, and invited
comment on allowing other years to be
used as the baseline. However, Clean
Air Act section 172(c)(3) requires a
“current” inventory of emissions. Since
this will be 1990 in most cases, the final
rule establishes 1990 as the baseline
year. unless the conformity SIP revision
defines it as the year of the baseline
emissions inventory used in control
strategy SIP development.
E. NO 1 Reductions in Ozone Areas in
the Interim Period
The NPRM did not propose to require
demonstration of NO reductions in
ozone nonattainment areas during the
interim period with a build/no-build
test. EPA received significant public
comment that the Clean Air Act
mandates such reductions. After
reviewing the comments and the statute,
EPA agrees that Clean Air Act section
176(c)(3)(A)(iii)’s reference to section
182(bHl) requires a contribution to
reductions in NO 1 emissions during the
interim period, as that section requires
reductions in both VOC and NO 1 as
necessary to demonstrate attainment.
Therefore, the final rule requires the
build/no-build test in ozone
nonattainment areas to be satisfied for
both VOC and NO 1 , unless the
Administrator determines under section
182(f) of the Clean Air Act that
additional reductions of NO, would not
contribute to attainment in any area.
F. Tmnsportation Control Measures
(TCMs)
1. Demonstration of Timely
Implementation
Like the proposal, the final rule will
allow the “timely implementation”
criterion to be satisfied even if TCMs are
behind the schedule in the SIP, i.e.,
even if a Sn’ milestone for T M
implementation has already passed or
the plan or TIP in question will result
in a future implementation milestone
being missed. EPA received comment
on both sides of this issue, and EPA
continues to believe that this approach
is a practical necessity to accommodate
uncontrollable delays. However,
because section 1 76(c)(2)(B) of the Clean
Air Act requires ‘.‘timely
implementation” of ‘ItMs, conformity
may be demonstrated when Tc Ms are
delayed only if all obstacles to
implementation have been identified
and are being overcome, and if State and
local agencies with influence over
approvals or funding are giving TCMs
maximum priority.
EPA believes that the determination
of “timely implementation” should
focus on the prospective schedule for
TCM implementation, and all past
delays should be irrelevant, Therefore, it
is permissible for the plan/TIP to project
completion of a 1CM implementation
milestone which is later than the SIP
schedule if the lateness is due to delays
which have already occurred, or due to
the time reasonably required to
complete remaining essential steps
(such as preparation of a NEPA
document, design work, right-of-way
acquisition, Federal permits.
construction, etc.). It is also permissible
to allow time for obtaining state or local
permits if the project has not yet
advanced to the point where a permit
could have been applied for.
However, where implementation
milestones have been missed or are
projected to be missed, agencies must
demonstrate that maximum priority is
being given to TCM implementation. Alt
possible actions must be taken to
shorten the time periods necessary to
complete essential steps in TCM
implementation—for example, by
increasing the funding rate—even
though the timing of other projects may
be affected. It is not permissible to have
prospective discrepancies with the SIP’s
1CM implementation schedule due to
lack of programmed funding in the TIP,
lack of commitment to the project by’the
sponsoring agency. unreasonably long
periods to complete future work due to
lack of staff or other agency resources.
lack of approval or consent by local
governmental bodies, or failure to have
applied for a permit where necessary
work preliminary to such application
has been completed. However, where
statewide and metropolitan funding
resources and planning and
management capabilities are fully
consumed (within the flexibilities of the
Intermodal Surface Transportation
Efficiency Act (ISTEAH with responding
to damage from natural disasters, civil
unrest, or terrorist acts, 1CM
implementation can be determined to be
timely without regard to the above,
provided reasonable efforts are being
made. The burden of proof will be on
the agencies making conformity
determinations to demonstrate that the
amount of time to complete remaining
implementation steps will not exceed
that specified in the SIP without good
cause, and that where possible, steps
will be completed more rapidly than
assumed in the SIP in order to make up
lost time.
The determination that obstacles to
implementation are being overcome and
maximum priority is being given to
TCMs is a specific issue which the
conformity SIP revisions’ interagency
consultation procedures must address.
Considerable comment was received
regarding priority for TCMs and
demonstration of timely implementation
of TCMs. In response to comments that
a part of § 51.394 “Priority” could be
interpreted to weaken timely
implementation of TcMs rather than
promote it, EPA has deleted language
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62198 Federal Register / Vol. 56, No. 225 I Wednesday, November 24, 1993 / Rules and Regulations
which required funding decisions to
promote the timely implementation or
transportation measures In the
applicable implementation plan “to the
extent that funds are available.”
There was also significant comment
regarding the relationship between TCM
funding and timely implementation.
Some commenters suggested that TCMs
should be funded before obligations
were made for any other TIP projects, or
that T M funds should in some way be
set aside. EPA is also concerned that
without explicit funding protection for
‘rcMs. it is possible that TCMs in a
conforming TIP may not actually have
funds obligated. Timely implementation
could then be demonstrated in the next
TIP through additional promises to Fund
the TCMs in the upcoming TIP cycle,
but no mechanism would force the MPO
or project sponsor to obligate funds for
TCMs in that TIP cycle once it has
started.
After extensive consideration of this
issue, EPA has concluded that the
Federal transportation funding process
does not offer practical opportunities to
control the use of appropriated funds
once they are apportioned or allocated.
Slate DOTs and MPOs need flexibility
in establishing the sequence in which
projects are funded, due to
unpredictable events in the timing of
the project implementation process.
This rules out requiring all TCMs to be
obligated before other projects.
Furthermore, setting aside funds for
TCMs poses special difficulties. A set-
aside would in effect be a lower limit on
obligations for all other projects. DOT
informs EPA that it is not authorized to
reduce States’ obligation limits In this
way. In addition, when T Ms are
legitimately delayed for reasons beyond
any agency’s control, the obligation
authority cannot be reserved. If a State
will be unable to use its obligation
authority by the end of the Federal fiscal
year it must be released so DOT can
redistribute it to other States that can
use it. Any obligation authority not used
by the end of the fiscal year lapses and
is not available In subsequent years.
Therefore, EPA believes it is not
reasonable to Impose extra controls on
how MPOs and State DOTs spend
Federal highway and transit funds,
beyond the requirements for maximum
priority for approval and funding and
for timely implementation of T Ms. The
ISTEA requirements for fiscally
constrained transportation plans and
TIPs also provide assurance that funds
are reasonably available to implement
TCMS as well as the other projects in the
transportation plan and TIP.
2. SIP Revisions Due to TCM Delays
The preamble to the NPRM requested
comment on whether a SIP revision
should be required when a TCM falls
behind its implementation schedule in
the SIP. The final rule does not
automatically require a SIP revision
when a TCM Falls behind the schedule
in the SIP. However, plans and TIPs
cannot be found in conformity unless
the “timely implementation” criterion is
satisfied. Therefore, if obstacles to 1CM
implementation are not being overcome
because it is impossible to do so, if State
and local agencies are not giving
maximum priority to TCMs which are
behind schedule, or if the original
sponsor or the cooperative planning
process decides not to implement the
1CM or decides to replace it with
another 1CM, a SIP revision which
removes the TCM will be necessary
before plans and TIPs may be found in
conformity. (In order to be approved by
EPA, such a SIP revision must include
substitute measures that achieve
emissions reductions sufficient to meet
all applicable requirements of the Clean
Air Act, including section 110(l).) The
interagency consultation procedures
established by the conformity SIP
revision must include a process to
discuss whether delays in TCM
implementation should be handled by
submitting SIP revisions to remove or
substitute TcMs.
This approach is generally consistent
with the comments EPA received on
this issue. Most commenters did not
favor an automatic requirement for a SIP
revision in the case of every TCM
implementation delay. although many
believed that SIP action might be
appropriate in certain circumstances.
Several commenters supported
requiring the SIP to include substitute
TCMs and funding sources which
would be implemented to ensure that
emission reduction goals are met if the
implementation of other ltMs were
delayed. Although the SIP may have
automatic project and/or funding
substitutes in the case of 1CM delays,
the final rule does not require this. In
general, the Clean Air Act does not
require individual measures to have
automatic substitutes in case of non-
implementation.
3. Retrospective Analysis of TCMs
Neither the proposal nor the final rule
requires the determination of timely
implementation to be based on
retrospective analyses of TCM
effectiveness or otherwise requires
MPOs or DOT to affirmatively study and
determine whether each TCM had its
predicted effectiveness (unless the SIP
explicitly includes such a requirement).
However, the final rule does require any
analysis supporting a conformity
determination to reflect the latest
available information regarding the
effectiveness and actual implementation
of the area’s TCMs. in order to satisfy
the criterion regarding use of the latest
planning assumptions.
EPA believes that the transportation
community should be held responsible
through the conformity process for
implementing TCMs which the State
committed to in the SIP. However, EPA
does not believe it is appropriate to hold
the transportation community
responsible for achieving the emission
reduction goals predicted for each 1CM.
especially given the difficulty in
predicting TCM effectiveness or even
measuring project-specific benefits once
TCMs are implemented. Because any
shortfall in emissions reductions is
reflected in future conformity
determinations through use of the latest
planning assumptions, and because
conformity is ultimately based on a
comparison with an emissions budget,
EPA believes that the conformity
process adequately addresses the issue
of T M effectiveness. Shortfalls in
emissions reductions from TCMs will
either be offset by other measures in the
transportation plan and TIP so that the
motor vehicle emissions budget is still
met, or the transportation plan and TIP
will not be in conformity. In addition,
serious and above ozone areas are
required to track aggregate VMT and
vehicle emissions under section
182(c)(5)(A) of the Clean Air Act and
overall emissions under section 182(g).
CO areas above 12.7 parts per million
must also track aggregate VMT each
year. Conformity determinations are
required to use the latest planning
assumptions.
4. TCMs in the Absence of a Conforming
Transportation Plan and TIP
Individual projects may not be
funded, accepted, or approved unless
there is a currently conforming
transportation plan and TIP. EPA
received public comment indicating that
TcMs in the SIP should be able to
proceed even in the absence of a
conforming transportation plan and TIP,
because the commenters considered
them to be consistent with the purpose
of the SIP.
The final rule would not allow TCMs
to proceed without a conforming
transportation plan and TIP. Clean Air
Act sections 1 76(c)(2) (C) and (D) clearly
require conforming transportation plans
and TIPs to exist in order to find
projects in conformity. EPA does not
believe that Clean Air Act section
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}ederal Regutei I Vol. 58, No. 225 I Wednesday. November 24, 1993 F Rules and Regulations 62199
176(c)(1)’s very general definition of
conformity as meaning conformity to
the purpose of the SIP overrules this
more specific requirement. According to
the final rule, only exempt projects may
proceed without a conforming plan and
TIP, because these projects are
emissions neutral or constitute a de
minimis exception to the requirement
for a conforming transportation plan
and TIP to be in place.
Although it may appear intuitively
counterproductive to delay
transportation projects which benefit air
quality just because an area is unable to
develop a conforming transportation
plan and TIP, the underlying
philosophy of the conformity
requirement for transportation plans
and TIPs is that transportation actions
must be planned and evaluated for
emissions effects in the aggregate and
for the long term. Allowing project-by.
project approvals in the absence of a
conforming transportation plan and TIP
is contrary to this philosophy. If TCtvIs
proceed outside the context of the
transportation plan and TIP, there is no
assurance that the alternatives analysis
has been properly conducted and that
the effect of the TCrvl on the flow within
the network has been properly
accounted for.
Furthermore. EPA believes that
because many compromises and trade-
offs among involved parties may be
required to develop a conforming
transportation plan and TIP or to revise
the SIP so that this is possible, it is
important for all constituencies to have
a stake in their development. Allowing
TCMs top without a conforming
transportation plan and TIP may
undermine the cooperative
transportation planning process.
C. Enforceability
Several commentors remarked that
project-level mitigation or control
measures which are relied upon to
demonstrate conformity should be
enforceable. EPA agrees that some
mechanism is necessary to ensure that
the project design concept and scope
(including any mitigation or control
measures) which is assumed in a
conformity analysis is actually
implemented during the construction of
the project and operation of the
resulting facility or service.
The final rule requires that before a
project may be found in conformity.
there must be written enforceable
commitments from the project sponsor
andlor operator that necessary project.
level mitigation or control measures will
be implemented as part of the
construction and operation of the
project. Specifically, the rule refers to
project-level mitigation or control
measures which are identified as
conditions for NEPA process
completion with respect to local PM—li)
or CO impacts, or which are included in
the project design concept and scope
which was used in the supporting plan.
TIP, and/or project-level conformity
analyses as a condition for making
conformity determinations.
Normal project design elements
(dimensions, lane widths, materials,
etc.) are not mitigation measures. But
the mitigation measures would include,
for example, construction practices to
control fugitive dust. Mitigation
measures would also include certain
operating policies such as differential
SOV/HOV pricing strategies and high-
occupancy vehicle designation, unless
they are shown not to be critical to the
conformity determination. For these
cases, the commitment may be either to
a specific operating policy, or to an
interactive process to determine the
operating policy which produces a
certain effect (i.e., the effect assumed in
the conformity analysis). For example. a
project sponsor/operator could commit
to either a certain toll, or to a process
of setting a toll which resu Its in a given
level of average daily traffic on the
facility.
Actual other projects that are assumed
in a current project’s conformity
analysis to be completed and
operational at a future date—such as
parallel non-SOV service—are not
considered to be mitigation or control
measures for the current project and
would not require written
commitments. The requirement to use
the latest planning assumptions will
ensure that conformity analyses reflect
the current plans for implementation of
such other projects. In combination with
the requirement for fiscal constraint and
improved metropolitan planning
procedures, EPA believes this is
adequate assurance that these other
projects or their equivalent will be
implemented.
if the regional emissions analysis
supporting a plan or TIP confonnity
determination includes project-level
mitigation or control measures in a
project’s design concept and scope, but
written commitments from the project
sponsor/operator are not obtained prior
to the project-level conformity
determination, the project must be
con ldered to be “not from a conforming
plan and TIP.” The project will
therefore need to be included in a new
regional emissions analysis which may
not assume implementation of the
mitigation or control measures.
In addition to requiring that written
commitments to mitigation measures be
obtained from project sponsors prior to
making a positive conformity
determination, the final rule also
requires that project sponsors must
comply with such commitments once
made. Pursuant to these final rules, EPA
can enforce mitigation commitments
directly against project sponsors under
section 113 of the Clean Air Act, which
authorizes EPA to enforce the
provisions of rules promulgated under
the Act. Once a State conformity SIP
revision requiring written commitments
to mitigation measures is approved by
EPA, such commitments can also be
enforced directly against project
sponsors by States and citizens under
section 304 of the Clean Air Act, which
provides for citizen enforcement of
requirements under an applicable
implementation plan relating to
transportation control measures or air
quality maintenance.
The concern was raised to EPA that
direct enforcement against non-federal
parties could violate the prohibition
against indirect source review programs
in Clean Air Act section 11O(a)(5).
However, EPA concludes that this
prohibition is not relevant to the
requirement that project sponsors
comply with mitigation commitments.
EPA is not promulgating a generally
applicable requirement for review of all
indirect sources. Rather, EPA is
enabling Federal agencies to make
positive conformity determinations
under Clean Air Act section 176(c)
based on voluntary commitments by
project sponsors to complete mitigation
measures. Project sponsors are not
obligated to make such commitments.
Where they volunteer to do so to
facilitate Federal conformity
determinations, EPA is requiring them
to live up to such commitments.
Without such a requirement, EPA couiu
not allow positive conformity
determinations based on mitigation
measures prior to actual construction of
mitigation measures.
If at a later time (only during the
budget period, which extends to or
beyond the attainment date) the MPO or
project sponsor believes the mitigation
measure is no longer necessary for
conformity, the project operator may be
relieved of its obligation if it shows in
a regional emissions analysis of the
transportation plan/TIP that the
emissions budget(s) can still be met
without the mitigation measure, and if
it shows that no hot spots will be caused
or worsened by not implementing the
mitigation measure. The MPO and DOT
must confirm that the conformity
determinations for the transportation
plan, TIP, and project would still be
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62200 Federal Register / Vol. 58, No. 225 I Wednesday, November
24. 1993 / Rules and Regulations
valid if the mitigation measure is not
implemented.
if the mitigation measure was not
included in the project design concept
and scope which was modeled for the
purpose of the transportation plan and
TIP conformity determination, the
project sponsor or operator would not
have to perform a regional emissions
analysis in order to be relieved of its
obligation. The MPO and DOT could
confirm that the conformity
determinations for the transportation
plan and TIP are valid without further
emissions analysis. However; a hot-spot
analysis would be necessary in order to
demonstrate that the project-level
conformity determination is valid even
without the mitigation measure.
1-I. Time Limit on Project-Level
Determinations
Several commenters expressed
concern that by proposing in the
“Applicability” section that projects
with a completed NEPA document and
a project-level conformity determination
may proceed unless there has been a
significant change in design concept
and scope or a supplemental
environmental document for air quality
reasons, the proposal would have
allowed too many projects to proceed
without an updated conformity analysis.
Upon reflection, EPA believes that it is
appropriate to respect prior
determinations for projects which have
received final approval, provided there
have been no significant changes in
project design concept and scope and
major steps have been taken to advance
the project. However, EPA believes that
it is reasonable to require a new
conformity determination if there Is no
ongoing activity that would be delayed
during the redetermination process and
if several years have elapsed since the
original determination, during which
emissions models and planning
asswnptions may have changed.
EPA wants to balance two conflicting
goals: (1) To maintain a stable and
efficient transportation planning process
by avoiding costly reanalysis and
project redesign. and (2) to protect air
quality by taking into account changes
to the real world or to our
understanding of it (e.g., changes to the
transportation network, the planned
transportation network, planning
assumptions, or models). By proposing
to allow projects which have final
approval to proceed, and by proposing
to require only one project-level
conformity determination, EPA
Intended to avoid disrupting the
implementation process for projects
which are underway. To protect air
quality by considering new information
and changed circumstances, the NPRM
relied on DOT’s process for reevaluating
NEPA documents and determining if.
supplemental NEPA documents are
necessary. However, this process does
not have clear consultation procedures
or criteria for determining when
supplemental analysis is necessary.
Therefore, the final rule allows
implementation to continue for only
those projects which have a completed
NEPA document and project-level
conformity determination, and which
have had one of the following major
steps within the past three years: NEPA
process completion; start of final design;
acquisition of a significant portion of
right-of-way; or approval of the plans,
soRcifications and estimates. The rule
would require a new finding of project-
level conformity if the State seeks DOT
authorization for a new step or phase of
a project which has not had one of these
major steps within the past three years.
Thus, in contrast to the proposal,
project-level conformity determinations
lapse automatically under certain
circumstances rather than lapsing
through a DOT determination that a
supplemental NEPA document is
necessary. DOT’s NEPA regulations
require reevaluation of NEPA
documents for projects which have not
had major action for three years; the
conformity process will ensure that the
effects of new planning assumptions
and emissions models are explicitly and
affirmatively considered with the
benefit of intera en consultation.
Under the EP I interim guidance
Issued June 7, 1991 and under the
NPRM, projects which had received a
conformity determination but had been
inactive for more than three years were
allowed to be Included in the
“Baseline” (no-build) scenario, and
were also included in the “Action”
(build) scenario. Consequently, they did
not influence the outcome of the build/
no-build comparison even if the actual
effect of their completion would be to
increase emissions. For the same
reasons that EPA believes such inactive
projects should receive new project-
level conformity determinations before
being reactivated, EPA believes that
there should be one cycle of plan and
TIP analysis in which the project is
treated as a newly proposed project.
Accordingly, the rule requires that for
the first instance after today in which
the MPO and DOT apply a build/no-
build test to the plan and TIP, the
project should appear in the build but
not in the no-build scenario, if the
project remains in the plan or TIP. In
subsequent plan and TIP conformity
determinations, the project will appear
in both scenarios regardless of how
much longer it remains inactive or
whether it experiences a new period of
inactivity. The project’s effects will
always be accounted for in the budget
test during the transitional or control
strategy period, as long as the project
has not been removed from the
transportation plan.
The requirement to redetermine
project-level conformity is independent
of the requirement to include the project
in the build scenario for one plan and
TIP conformity determination. The
project may be considered to come from
a currently conforming transportation
plan and TIP for the purposes of a
project-level conformity determination
even if the project has not yet been
removed from the no-build scenario.
This would not relieve the MPO of the
responsibility to include the project’s
emissions only in the build scenario in
the next plan and TIP redetermination.
However, the MPG and the project
sponsor should consult on whether it is
desirable to approve the project before
it has been analyzed with its emissions
included in the build scenario only,
since completing the project might
reduce options for the rest of the
transportation system.
Once a reactivated project with a
lapsed project-level determination bas
been properly analyzed as part of a TIP,
the redetermination of project-level
conformity will depend upon the
consideration of hot spots. In all casos,
once a project-level determination has
lapsed, a new finding of project-level
conformity must be made, However,
under certain circumstances, a
redetermination of conformity for a
project with respect to hot spots may be
based on the analysis performed for the
previous conformity determination. For
example, if there have been changes
since the previous analysis to the
emissions models, planning
assumptions, or current facts or
assumptions regarding the
transportation network or traffic
volumes, it may still be possible to
demonstrate that the hot-spot criterion
is satisfied by making approximate
calculations and judgments about the
effect of the latest information on the
previous analysis. If the previous
analysis predicts a concentration which
is not close to the ambient air quality
standard and the changes in emissions
models or planning assumptions are not
significant, it may be possible to
demonstrate conformity without a
complete reanalysis. Such decisions
about models and methodologies for
hot-spot analyses are the subject of
interagency consultation.
Although EPA wants the effects of
new planning assumptions and
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Federal Register / Vol. 58, No. 225 / Wednesday. November 24. 1993 / Rules and Regulations 62201
emissions models to be considered in
project.lavel redeterminations. EPA
does not intend the conformity process
to force the development of
supplemental NEPA documents. Under
NEPA, supplemental documents are not
necessary for every project which has
not had major steps within three years.
Supplemental NEPA documents should
only be prepared when there are
significant changes as defined by the
responsible Federal agency. By allowing
certain conformity determinations to be
made on the basis of previous analyses.
EPA hopes that rigorous reanalyses will
not need to be performed in all cases.
I. Interagency Consultation
1. Minimum Standards
Like the proposal, the final rule
requires the conformity SIP revision to
establish detailed interagency
consultation procedures. The rule lists
topics which the procedures must
address, such as frequency of meetings,
without establishing minimum
standards. The conformity SIP revision
shall determine such specifics and
identify the agencies to be involved in
the interagency consultation process—
in particular, the local transportation
agencies (such as county-level
implementing agencies) and local air
agencies. Commenters suggested
examples of specific requirements States
may choose to include, such as
consultation on the unified planning
work program; early notification
announcing the initiation of major work
efforts; establishment of oversight
cr mmittees involving all significant.
interested parties; forms of
announcement of comment periods:
interagency notice of public hearings;
specific consultation requirements for
plans and TIPs which DOT returns to
the MPO or State DOT for additional
conformity findings; and availability of
the MPO’s summary and analysis of
comments. Because EPA believes that
each State should have the flexibility to
design the most effective and
appropriate consultation process, EPA is
not specifically requiring States to
include these measures. However. EPA
encourages adoption of extensive,
effective consultation procedures that
will resolve problems as early in the
process as possible and that will
facilitate the development of approaches
to maximize air quality and mobility.
Until the conformity SIP revision is
approved by EPA, the consultation
requirements of the final rule may be
satisfied if reasonable opportunity for
interagency consultation is provided.
2. Consequences of Failure to Follow
Consultation Procedures
The preamble to the notice of
proposed rulemaking asked for
comment on what should be the
consequences of failure to follow the
consultation procedures established in
the conformity SIP revision. The final
rule establishes as a criterion for
determining conformity that the MPO
must follow the consultation procedures
established by the SIP. Thus, failure to
follow the consultation procedures
established in the conformity SIP
revision would be a violation of the SIP
and would also undermine the validity
of the conformity determination. The
final rule’s approach is consistent with
the majority of commenters, who
believed that the validity of a
conformity determination should
depend on proper consultation
procedures and that each State and
participating agencies should jointly
develop their own legally enforceable
State conformity procedures.
3. Role of State Air Agencies in
Conformity Determinations
EPA received many comments
regarding the role of State air agencies
in determining conformity. EPA
believes that a well-defined conflict
resolution process provides security to
all parties and thus facilitates the
informal negotiation and collaboration
which is essential to cooperative
planning. A well-defined process will
also expedite the resolution of
disagreements and help prevent the
transportation planning process from
falling behind schedule if consensus is
not achieved.
Therefore, the final rule provides that
conflicts among State agencies and
between State agencies and MPOs must
be escalated to the Governor if they
cannot be resolved by State agency
heads. The State air agency may delay
an MPO or State DOT’s conformity
determination if interagency
consultation has been pursued to the
level of the head or chair of both
agencies, and if the air agency escalates
unsolved issues to the Governor within
14 calendar days. Once the State air
agency has appealed. the Governor’s
concurrence must be obtained for the
final conformity determination. If no
appeal is made during the 14-day
waiting period after the State DOT or
MPO has notified the State air agency
head of the resolution of its comments,
the MPO or State DOT may finalize its
conformity determination. The
Governor may delegate his or her role in
the process, but not to the head or staff
of the State or local air agency, State
DOT, State transportation commissions
or boards, or MPO. The start of the 14-
day clock and the form(s) of escalation
are to be defined in the consultation
procedures established by the SIP
revision.
EPA is authorized to address
consultation procedures by Clean Air
Act section 176(c)(4)(B)(i), and EPA
believes that this conflict resolution
process is necessary to ensure a
meaningful consultation process.
Although the rule does not specify a
concurrence role for State air agencies,
a State may choose to provide one when
it establishes consultation procedures in
its conformity SIP revision.
4. EPA Role in Conformity
Determinations
The proposal solicited comment on
whether EPA should be required to
concur on conformity determinations or
on the choice of models and
methodologies. The final rule does not
require EPA concurrence, and the Clean
Air Act gives no direct authority to do
so. However, the consultation
procedures in the conformity SIP
revision must address a process for
response to the significant comments of
involved agencies, including EPA.
5. Interagency Consultation
Requirements in DOT’s Metropolitan
Planning Regulations
In addition to the consultation
requirements established by the
conformity SIP revision, DOT’s
metropolitan planning regulations i 3
CFR part 450) impose consultation
requirements on the MPOs. These
regulations specifically require in
nonattainment and maintenance areas
an agreement between the MPO and the
regional air quality agency which
describes their respective roles and
responsibilities for air quality-related
transportation planning. Furthermore,
these regulations require that in cases
where the metropolitan planning area
does not include the entire
nonattainment or maintenance area,
there must be an agreement between the
State DOT, State air agency. other
affected local agencies, and the MPO
describing the process for cooperative
planning and analysis for all projects
outside the metropolitan planning area
but within the nonattainment or
maintenance area. This agreement must
indicate how the total transportation-
related emissions from the
nonattainment or maintenance area,
including areas both within and outside
the metropolitan planning area, will be
treated for the purposes of determining
conformity.
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1993 / Rules and Regulations
J. Frequency of Conformity
Determinations
I. Grace Periods Following Triggers for
Redetermination
Several comments were received
regarding the 18-month grace period for
redetermination of the transportation
plan following the promulgation of the
final rule or EPA approval of certain SIP
revisions. Some commenters expressed
the need for longer or more flexible
grace periods, while others believed that
the grace periods should be shorter in
order to rapidly accommodate new
requirements. EPA continues to believe
that 18 months is an appropriate
balance between the need for
conformity determinations to reflect
updated information and the need to
maintain a stable transportation
planning process. Often (if not always)
the emissions budget in a newly-
approved SIP will have already been
used to demonstrate conformity of the
existing plan and TIP months earlier
through the “transitional period”
requirements of the final rule, making
the lB-month trigger redundant for
budget purposes, although still
important for assessing timely
implementation of TcMs.
ft should be emphasized that any new
conformity determination following
promulgation of the final rule or
approval of a SIP revision involving the
motor vehicle emissions budget or
TCMs must be made according to the
new requirements or the new SIP
provisions. The 18-month time period is
only a grace period before the
conformity status of existing plans must
be re-evaluatedin the context of the new
requirements. DOT must make
conformity determinations on existing
plans according to the requirements of
today’s rule within 18 months, or (he
conformity status of existing plans will
lapse, and no further conformity
determinations on projects may be
made. MPOs must act before DOT.
These determinations may coincide
with the periodic adoption of a new
transportation plan or TIP, or with a
transportation plan and TIP
determination otherwise required by the
rule (for example, one made to show
conformity to a submitted emissions
budget).
It should also be emphasized that any
conformity determination made after the
cffective date of the final rule must be
made according to the requirements of
the final rule, even if the conformity SIP
revision has not yet been approved.
Once the conformity SIP revision has
been approved, conformity
determinations must also follow the
requirements it establishes. The 18-
month time period before transportation
plans must have a new conformity
determination satisfying the
requirements of the final rule is not in
any way tied to the deadline for
submission of a conformity SIP revision.
2. TIP Amendments
The NPRM proposed that each TIP
amendment requires a conformity
determination, unless the amendment
merely adds or deletes exempt projects.
The final rule requires notification to
other agencies of such plan and TIP
revisions to be an interagency
consultation procedure which must be
established in the conformity SIP
revision. Notification is not expected to
occur before the fact, unless the
conformity SEP revision requires it.
Some commenters expressed concern
that not every TIP amendment involves
regionally significant projects or
changes in project design concept and
scope which are significant. EPA
believes that in such cases, no new
regional emissions analysis would be
required if the MPG and DOT make a
finding that the previous analysis is still
valid. That is. if the only changes to the
TIP involve either projects which are
not regionally significant and which
were not or could not be modeled in a
regional emissions analysis, or changes
to project design concept and scope
which are not significant, the MPO or
DOT could document this and use data
from the previous regional emissions
analysis to demonstrate satisfaction of
the criteria which involve regional
analysis. EPA said in the preamble to
the NPRM that when a conformity
determination is based on a previous
analysis and no new transportation or
air quality modeling is otherwise
required, EPA would not require new
modeling solely to incorporate revised
planning assumptions (although use of
the latest information is always
recommended). Therefore, EPA believes
that conformity determinations on
minor TIP amendments do not
necessarily require new regional
emissions analysis, although a positive
conformity finding must be made and
the regional emissions criteria must be
satisfied by documenting the
appropriateness of relying on the
previous analysis.
One commenter also stated that full-
blown conformity determinations
should not be required if a project is
moved between TIP years, but its
completion date is still within the same
year. or changes by more than a year but
not enough to affect a milestone year.
Under DOT’s metropolitan
transportation planning regulations,
moving a project from the second or
third year of the TIP does not require a
TIP amendment, and therefore, a
conformity determination would not be
required. When a project in the first year
of the TIP is delayed, the DOT
regulations allow a project to be moved
up from the second or third year using
the ISTEA project selection procedures
or other project selection procedures
agreed to by the MPO, State. and transit
operator. Furthermore, EPA believes
that for conformity determinations on
TIP amendments, the demonstration of
timely implementation of TcMs should
focus on the changes to the TIP which
impact 1CM implementation. A new
status report on implementation of
TCMs is not necessarily required for TIP
amendments; the status report from the
previous conformity determination may
be relied on if by its nature the TIP
amendment does not affect TCM
implementation.
3. SIP Revisions as Triggers
Some commenters also stated that a
full-blown conformity determination
should not be required every time EPA
approves a SIP revision which adds,
deletes, or modifies a 1CM. In order to
be approved, such a SIP revision would
have to demonstrate that the added,
deleted, or modified TCM is still
consistent with attainment,
maintenance, or other Clean Air Act
milestones. EPA believes that an MPO
or DOT could rely on the regional
analysis used in the SIP revision to
make its conformity determination, if
the MPO or DOT makes a finding that
the SIP analysis meets this rule’s
requirements for how regional
emissions analyses are performed.
In the preamble to the NPRM. EPA
requested comment on whether the
trigger for conformity redetermination
following a SIP revision should be
submission of the SIP revision to EPA,
or EPA approval of the SIP revision.
EPA received significant comment
advocating each of these approaches. In
general, the final rule follows the
NPRM’s approach of using EPA
approval of the SIP revision as the
triggering event. Section 176(c) of the
Clean Air Act refers to conformity to the
“applicable implementation plan,” and
the applicable implementation plan is a
SIP which is approved by EPA.
In the context of the interim and
transitional period requirements, the
final rule does establish a regional
emissions test which requires
consistency with the motor vehicle
emissions budget in the submitted SIP,
even before it is approved. EPA requires
use of a submitted SIP in this case
because EPA believes a SIP emissions
budget, even if it is not yet approved, is
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the best way to determine “contribution
to annual emissions reductions
consistent with sections 182(b)(1) and
187(a)(7),” In the absence of an
approved SIP, as required by section
176(c)(3)(a)(iii) of the Clean Air Act.
Even in this case, EPA does not consider
the submitted control strategy SIP, or
any other SIP which is not yet
approved, to be an “applicable
implementation plan.”
Although EPA is in most cases not
adopting the option of triggering
conformity determinations with SIP
submission, EPA believes the final
rule’s interim and transitional period
criteria and procedures do address the
concern of many commenters that the
State’s control strategy should be used
as soon as possible for the purposes of
conformity.
4. Additional Triggers
EPA believes the proposed triggers
achieve an appropriate balance between
maintaining the stability of the
transportation planning process and
considering new information as
expeditiously as possible. Some
commenters supported additional
triggers, such as changes in assumptions
about assumed transit ridership (due to
changes in fare structure or the transit
network), funding availability, or land
use scenarios. EPA believes that these
changes are unpredictable, and using
them as triggers for new conformity
determinations would be disruptive to
the transportation planning process.
However, the final rule requires such
changes to be explicitly recognized in
all future conformity determinations, in
order to satis1 ’ the criterion which
requires use of the latest planning
assumptions.
5. Lapsing of Transportation Plan and
TIP Conformity Determinations
The final rule clarifies that if
transportation plan and TIP conformity
determinations are not made within the
three-year timeframe for periodic
redetermination or within the grace
period following a trigger, the
conforming status of the transportation
plan and TIP will lapse. In the absence
of a conforming transportation plan and
TIP, no new project-level conformity
determinations may be made. Also,
although non-federal projects do not
require conformity determinations,
recipients of Federal highway and
transit funds may not approve or adopt
regionally significant non-federal
projects in the absence of a conforming
transportation plan and TIP (see section
IV.L of this preamble). Thus, without a
conforming transportation plan and TIP,
only the following projects may
proceed: projects which are exempted
by the conformity rule; projects which
have completed all transportation plan,
TIP, and project conformity
determinations; and non-federal projects
which are not regionally significant or
which do not involve recipients of
Federal funds.
K. Fiscal Constraint
The NPRM included language from
ISTEA on fiscal constraint for
transportation plans and TIPs. EPA
received several comments on this
issue. In response to one comment, EPA
has clarified that only transportation
plans and TIPs which are fiscally
constrained according to the
requirements of DOT’s metropolitan
planning regulations (which implement
ISTEA) may be found to conform.
Several other comments concerned
how the ISTEA language on fiscal
constraint should be interpreted. EPA
believes that the conformity
requirements on fiscal constraint must
be consistent with those that DOT
establishes, and references DOT’s
metropolitan planning regulations at 23
CFR part 450 on this subject.
The metropolitan planning
regulations require the transportation
plan to include a financial plan that
demonstrates the consistency of
proposed transportation investments
with already available and projected
sources of revenue. The financial plan
shall compare the estimated revenue
from existing and proposed funding
sources that can reasonably be expected
to be available for transportation uses,
and the estimated costs of constructing,
maintaining and operating the total
(existing plus planned) transportation
system over the period of the plan. The
estimated revenue by existing revenue
source (local, State, Federal, and
private) available for transportation
pro)ects shall be determined and any
shortfalls identified. Proposed new
revenues and/or revenue sources to
cover shortfalls shall be identified,
including strategies for ensuring their
availability for proposed investments.
Existing and proposed revenues shall
cover all forecasted capital, operating,
and maintenance costs. Cost and
revenue projections shall be based on
data reflecting the existing situation and
historical trends. For nonattainment and
maintenance areas, the financial plan
shall address the specific financial
strategies required to ensure the
implementation of projects and
programs to reach air quality
compliance.
The metropolitan planning
regulations at 23 CFR 450 also require
the TIP to be financially constrained
and include a financial plan that
demonstrates which projects can be
implemented using current sources and
which projects are to be implemented
using proposed new sources (while the
existing transportation is being
adequately operated and maintained).
Only projects for which construction
and operating funds can reasonably be
expected to be available may be
included. In the case of new funding
sources, strategies for ensuring their
availability shall be identified. In
developing the financial analysis, the
MPO shall take into account all projects
and strategies funded under title 23
U.S.C. and the Federal Transit Act,
other Federal funds, local sources, State
assistance, and private participation. In
nonattainment and maintenance areas,
projects included in the first two years
of the ‘liP must be limited to those for
which funds are available or committed.
“Available” funds means funds
derived from an existing source of funds
dedicated to or historically used for
transportation purposes which the
financial plan (in the TIP approved by
the MPO and the Governor) shows to be
available to fund projects. In the case of
State funds which are not dedicated to
or historically used for transportation
purposes, only those funds that the
Governor has control of may be
considered “committed” funds. In this
case, approval of the TIP by the
Governor will be considered a
commitment of funds. For local or
private sources of funding not dedicated
to or historically used for transportation
purposes (including donations of
property), a commitment in writing!
letter of intent by the responsible
official or body having control of the
funds will constitute a commitment.
Where the use of State, local or private
funds not dedicated to or historically
used for transportation purposes is
proposed and a commitment as
described above cannot be made, this
funding source should be treated as a
new funding source and must be
demonstrated to be a “reasonably
available new source.”
With respect to Federal funding
sources, “available” or “committed”
shall be taken to mean authorized and)
or appropriated funds the financial plan
shows to be available to the area. Where
the transportation plan or TIP period
extends beyond the current
authorization period for Federal
program funds, “available” funds may
include an extrapolation based on
current/past authorizations of Federal
funds that are distributed by formula.
For Federal funds that are distributed on
a discretionaiy basis, including Section
3 and “demo funding,” any funding
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62204 Federal Register / Vol. 58. No. 225 I Wednesday, November 24, 1993 / Rules and Regulations
beyond that currently authorized and
targeted to the area should be treated as
a new source and must be demonstrated
to be a “reasonably available new
source.”
For periods beyond years I and 2 of
the TIP in nonattainment and
maintenance areas, for TIPs in other
areas, and for the transportation plan,
funding must be “reasonably available,”
but need not be currently available or
committed. Hence, new funding sources
may also be considered. New funding
sources are revenue sources that do not
currently exist or that require some
steps (legal, executive, legislative, etc.)
before a jurisdiction, agency, or private
party can commit such revenues to
transportation. Simply identifying new
funding sources without identifying
strategies for ensuring their availability
will not be acceptable. Under the
regulations, the financial plan must
identify strategies for ensuring their
availability, it is expected that the
strategies, particularly for new funding
sources requiring legislation, voter
approval or multi-agency actions, would
include a specific plan of action that
describes the steps that will be taken to
ensure that the funds will be available
within the timeframe shown in the
financial plan.
The plan of action should provide
information such as how the support of
the public, elected officials, business
community, and special interests will be
obtained, e.g., comprehensive and
continuing program to make the public
and others aware of the need for new
revenue sources and the consequences
of not providing them. Past experience
(including historical date) with
obtaining this type of funding, e.g.,
success in obtaining legislative and/or
voter approval for new bond issues, tax
increases, special appropriations of
funds, etc. should be included. Where
efforts are already underway to obtain a
new revenue source, information such
as the amount of support (and/or
opposition) for the measure(s) by the
public, elected officials, business
community, and special interests should
be provided.
For innovative financing techniques,
the pLan of action should identify the
specific actions that are necessary to
implement these techniques, including
the responsible parties, steps (including
the timetable) to be taken to complete
the actions and extent of commitment
by the responsible parties for the
necessary actions.
Following are examples of specific
cases where new funding sources
shçuld not generally be considered to be
“reasonably available”: (1) Past efforts
to enact new revenue sources have
generally not been successful; (2) the
extent of current support by the public.
elected officials, business community,
and/or special interests indicates
passage of a pending funding measure is
doubtful; or (3) there is no specific plan
of action for securing the funding source
and/or other information that
demonstrates a strong likelihood that
funds will be secured.
Since the financial plans will be
included in the metropolitan
transportation plans and TIPs, the
public and other interested parties will
have an opportunity to review and
comment on the financial plans through
the public involvement process required
under the metropolitan planning
regulations. Similarly, agencies
involved in the conformity process will
have an opportunity to review and
comment on the financial plans through
the interagency consultation procedures
established by the conformity SIP
revision, which must contain a process
for circulating draft documents
(including plans and TIPs) for comment
prior to approval.
L. Non-federal Projects
The NPRM proposed that non-federal
projects (i.e.. projects which receive no
Federal funding and require no Federal
approval but which are adopted or
approved by an entity that receives
Federal transportation funds for other
projects) do not require conformity
determinations. However, to ensure that
the transportation sector overall
contributes to emissions reductions in
the interim period as required, and
because Federal and non- federal
projects eventually share the same SIP
motor vehicle emissions budget, the
NPRM proposed to require the regional
emissions analyses for conformity
determinations on transportation plans
and TIPs to Include all known
regionally significant non-federal
projects. The final rule retains these two
features but differs from the proposal as
described below.
1. Requirements For Adoption or
Approval of Projects By Recipients of
Funds Designated Under Title 23 U.S.C.
or the Federal Transit Act
EPA received significant public
comment on the issue of conformity’s
applicability to non-federal projects.
The final rule does not require non-
federal projects to have a conformity
determination (i.e., a finding that the
project satisfies all the rule’s criteria and
procedures, including hot-spot analysis
and regional analysis). EPA continues to
believe, as described in the NPRM, that
the better reading of the Clean Air Act
does not apply all of these aspects of
conformity to non-federal projects.
However, upon consideration of
public comments, EPA believes that the
NPRM’s solitary requirement to account
for known regionally significant non-
federal projects does not fully comply
with the best reading of Clean Air Act
Section 1 76(c)(2)(C). Section
176(c)(2)(C) says explicitly that “a
transportation project may be adopted
or approved by a metropolitan planning
organization or any recipient of funds
designated under title 23 U.S.C. or the
Urban Mass Transportation Act *
only if it comes from a conforming
transportation plan and TIP,” or (to
paraphrase) if a regional emissions
analysis demonstrates that the plan and
TIP would still conform if the project
were included.
EPA has decided that “transportation
project” in Section 176(c)(2)(C) of the
Clean Air Act is best interpreted as
meaning any transportation project,
rather than only Federally funded or
approved projects. The statutory
language does not limit the phrase
“transportation project” in any way.
Accordingly, the final rule requires that
before adopting or approving a
regionally significant non-federal
transportation project, recipients of title
23 U.S.C. or Federal Transit Act funds
must determine either that the project
was included in a conforming plan and
TIP, or was included in the original
regional emissions analysis supporting
the plan or TIP’s adoption, or that a new
regional emissions analysis including
the plan, TIP, and project demonstrates
that the plan and TiP would still
conform if the project were
implemented.
DOT would have no responsibility for
ensuring that recipients of Federal funds
make the proper determinations before
they adopt or approve regionally
significant non-federal projects.
However, failure of a recipient of
Federal funds to determine that a
regionally significant non-federal
project is included in a conforming plan
and liP (or regional emissions analysis
of a plan and TIP) would be a violation
of the SIP and of the Clean Air Act
Section 1 76(c)(2)(C).
EPA’s interpretation of
“transportation project” to mean any
transportation project rather than only
Federally funded or approved projects,
can be applied to every other use of
“transportation project” throughout
Section 176(c), without contradicting
any aspect of EPA’s rule and without
requiring conformity determinations on
such projects. This is because section
176(c)(I) of the Clean Air Act, which
defines conformity, requires conformity
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Federal Register I Vol. 58. No. 225 / Wednesday, November 24. 1993 I Rules and Regulations 62205
determinations only for transportation
projects which are adopted, accepted. or
funded by an MPO or DOT.
Although Section 176(c)(2)(C) refers
o ‘projects” in general. EPA is limiting
its requirement regarding approval or
adoption by recipients of Federal funds
to regionally significant projects.
Section 176(c)(2)(C) requires projects to
either come from a conforming plan and
TIP, or meet the Section 176(c)(2)(D)
requirement that a regional emissions
analysis demonstrate that the plan and
TIP would still conform if the project
were implemented. By their nature.
projects which are not regionally
significant would meet at least the terms
of Section 1 76(c)(2)(D). or they would
fail to meet these terms by at most a de
minimis amount. These projects either
cannot be incorporated into the
transportation network demand model.
are emissions neutral, or their effect is
implicitly captured in the modeling of
regionally significanl projects (through
the universal practice of assuming that
the amount of off-network travel is a
function of the travel predicted to occur
on regionally significant facilities that
are represented in the network model).
Consequently. EPA is exempting from
this requirement those non-federal
projects which are not regionally
significant.
Recipients of title 23 U.S.C. or Federal
Transit Act funds include recipient
agencies at any level of State, county.
city. or regional government. Private
landowners or developers, and
contractors or grant recipients
(including local government agencies)
which are only paid for services or
products created by their own
employees, are not considered
recipients of funds. That is. if an agency
receives title 23 U.S.C. or Federal
Transit Act funds and then uses the
funds to pay private landowners or
developers, contractors, or grant
recipients, the private entities!
contractors/grant recipients are not
thereby considered recipients of Federal
funds for the purposes of this
requirement, and their other non-federal
projects would not be subject to this
requirement. Furthermore, projects
which do not involve any participation
by recipients of Federal funds are not
subject to this requirement.
The requirement regarding approval
or adoption of regionally significant
non-federal projects by recipients of
funds does apply when recipients of
funds approve regionally significant
projects which they are not
implementing themselves. This includes
approvals to connect regionally
significant privately built roads to
public roads, andJor transfer of
ownership to a public entity.
Although the Clean Air Act refers to
adoption or approval of projects, the
line separating tentative planning from
actual implementation of non-federal
projects may not always be clear. The
specific step considered to be adoption
or approval may depend on what other
steps exist in a recipient’s process. The
SIP must designate what action by each
affected recipient constitutes adoption
or approval. EPA believes that adoption!
approval is never later than the
execution ala contract for site
preparation or construction. Adoption/
approval will often be earlier, for
example, when an elected or appointed
commission or administrator takes a
final action allowing or directing lower-
level personnel to proceed.
Although MPOs do not necessarily
have an adoption or approval role, if an
MPO does adopt or approve any
highway or transit project, regardless of
funding source, a full project-level
conformity determination which
satisfies all the requirements of today’s
rule is required.
2. Disclosure and Consultation
Requirements for Non-federal Projects
Upon consideration of public
comment. EPA concluded that the
NPRM’s solitary requirement to account
for known regionally significant projects
does not adequately protect against
situations in which a project sponsor
does not inform the MPO of its intent to
undertake a project because it
anticipates objection from others in the
transportation planning process. Or, a
sponsor may consider its thought
processes too preliminary to constitute
an intention or plan. Also conceivable
are situations in which the MPO
purposely does not include a known
project in the emissions modeling
because of the anticipated difficulty it
would cause for the transportation plan
and TIP’s regional emissions conformity
test. In these situations, emissions
increases from non-federal projects
could not be simultaneously offset, and
projects could be irreversibly committed
before transportation planning
participants realized the need to offset
their impacts.
The final rule addresses these
situations by (1) making disclosure of
regionally significant non-federal
projects a requirement of the conformity
SIP’s consultation provisions: (2)
explicitly stating that disclosure is
required even if the project sponsor has
not made a final decision; (3) requiring
MPOs to include all disclosed or
otherwise known regionally significant
non-federal projects in the regional
emissions analysis: (4) requiring MPOs
to specifically respond in writing to any
comments that known plans for a
regionally significant non-federal
project have not been properly reflected
in the regional emissions analysis; and
(5) requiring recipients of Federal funds
to determine that their regionally
significant non-federal projects satisfy
the requirements of section 176(c)(2)(C)
of the Clean Air Act before the projects
are adopted or approved (i.e., determine
that the projects are included in a
conforming transportation plan or TIP
or are included in a regional emissions
analysis of the plan and TIP). These five
requirements are directly imposed as
Federal regulation; they must also be
established as conformity SIP
provisions. Failure to observe the
consultation requirements (items 1
through 4, discussed above) would be a
violation of the SIP.
The final rule requires the conformity
SIP to establish a mechanism which
ensures that other recipients of Federal
funds disclose to the MPO on a regular
basis their plans for construction of
regionally significant non-federal
projects (including projects for which
alternative locations, design concept
and scope, or the no-build option are
still being considered). Changes in such
plans must be disclosed immediately.
The final rule also requires consultation
between the MPO and project sponsors
to determine the non-federal projects’
location and design concept and scope
to be used in the regional emissions
analysis. particularly for projects for
which the sponsor does not report a
single intent because the sponsor’s
alternatives selection process is not yet
complete. If the MPO assumes a design
concept and scope which is different
from the sponsor’s ultimate choice, the
next regional emissions analysis for a
conformity determination must reflect
the most recent information regarding
the project’s design concept and scope.
3. Response to Comments
Although EPA does not agree with the
commenters who believe the Clean Air
Act requires conformity determinations
for non-federal projects, EPA believes
that the final rule addresses many of
these commenters’ practical concerns.
Because the final rule prohibits the
Implementation of regionally significant
non-federal projects until their
emissions impacts are accounted for in
the regional emissions analysis, the
integrity of the transportation planning
process is preserved. There is no
opportunity to escape or delay the
conformity implications of a project by
shifting its funding from Federal to non-
federal SOUrCeS, and a formal
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62206 Federal Register I Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and. Regulations
mechanism will be established to ensure
that plans for regionally significant non-
federal projects are disclosed to the
MPO. In this way, the impacts of non-
federal projects will be considered at the
same time as the impacts of Federal
projects, and Federal projects (or non-
federal projects by other sponsors) will
not be forced to offset the emissions of
non-Federal projects in later
transportation plans and TIPs, after the
non-Federal projects have already been
built.
Furthermore, in the absence of a
conforming transportation plan and TIP,
project sponsors will not be able to
adopt or approve new regionally
significant non-federal projects. This
ensures that all participants in the
transportation planning process are
involved in the effort to develop a
conforming transportation plan and TIP,
and that regionally significant non-
federal projects are not proceeding
without necessary emissions offsets
from other transportation projects.
The final rule s approach is also
consistent with the comments EPA
received regarding the potential burden
of making conformity determinations for
non-Federal projects. The final rule does
not impose any significant additional
substantive burden on MPOs or project
sponsors beyond that of the NPRM,
because the NPRM also required the
impacts of regionally significant non-
federal projects to be accounted for in
the regional emissions analysis of the
plan and TIP. I OT’s proposed rule on
metropolitan planning (58 FR 12064,
March 2, 1993) requires the
transportation plan to Include regionally
significant non-Federal projects, and
requires the TIP to include for
informational purposes all regionally
significant projects to be funded with
non-Federal funds.
V. Discussion of Conunents
A. Applicability
1. Incomplete Data, Transitional, and
“Not Classified” Areas
Because incomplete data and
transitional ozone areas and CO “not
classified” areas are designated
nonattainment, the NPRM’s conformity
requirements applied to them. EPA
received significant public comment
that these areas should be exempt from
conformity requirements.
EPA believes that section 176(c)(1)(B)
of the Clean Air Act, which requires that
no activity may “cause or contribute to
any new violation of any standard in
any area, or increase the frequency or
severity of any existing violation of any
standard in any area” requires that
conformity requirements apply to all
nonattainment areas. However, as with
attainment areas (as described above),
EPA agrees that the burden of
determining conformity according to the
requirements proposed in the NPRM
may outweigh the incremental
protection it provides to air quality in
incomplete data, transitional, and ‘not
classified” nonaltainment areas, given
that these areas alreedy may be at little
risk of experiencing violations of
ambient standards.
As described above. EPA will be
Issuing in the near future a
supplemental notice of proposed
rulemaking which proposes criteria and
procedures to apply conformity to
attainment areas. EPA intends that this
proposal will offer flexible, low-
resource criteria and procedures for
certain attainment areas which must
make conformity determinations. In this
supplemental proposal EPA will also
consider how to amend the
requirements for incomplete data,
transitional, and “not classified” areas
so that the analysis requirements for
these areas more closely correspond to
the potential risk of NAAQS violations
In these areas.
2. Length of the Maintenance Period
The NPRM proposed that the
maintenance period lasts indefinitely.
Several commenters recommended that
the maintenance period be finite. Three-
year, five-year, and twenty-year
maintenance periods were suggested.
The final rule limits the length of the
maintenance period to twenty years,
unless the applicable implementation
plan specifies a longer maintenance
period. Because the maintenance plan
required by section 175A of the Clean
Air Act must address twenty years, EPA
believes that conformity determinations
are required for at least that time. If the
maintenance plan establishes emissions
budgets for more than twenty years, the
area would be required to show
conformity to that maintenance plan for
more than twenty years. In the absence
of intent in the maintenance plan to
extend the maintenance period, EPA
believes it is appropriate for the
maintenance period to coincide with the
period addressed by the maintenance
plan. Once the maintenance period
ends, maintenance areas will be subject
to the forthcoming rule addressing
conformity in attainment areas as
applicable, and will therefore be
protected from falling back into
nonattainment.
3. Statewide Transportation Plans and
Statewide Transportation Improvement
Programs (STIPs)
The NPRM proposed that
transportation plans, TIPs, and
transportation projects must be found to
conform. Some commenters stated that
conformity should also apply to
statewide transportation plans and
SliPs, which are newly required by
ISTEA and DOT’s statewide planning
regulations at 23 CFR part 450.
The final rule requires conformity
determinations only for metropolitan
transportation plans and TIPs developed
under 23 CFR part 450. EPA believes
that STIPs are not TIPs as the latter term
is meant in Clean Air Act section 176(c),
and that conFormity therefore does not
apply to them directly. However, this
exclusion does not in any way reduce
the protection afForded by the
conformity process. DOT’s statewide
planning regulations require that the
Governor may not adopt a metropolitan
transportation plan or liP Into the
statewide transportation plan or STIP
unless the metropolitan plan or TIP has
been found to conform. Because not all
areas of a State are required to perform
conformity analyses. EPA believes that
it is more practical to ensure conformity
by making conformity determinations at
the metropolitan level, before
incorporation into the statewide plan or
Sill’, and that the Clean Air Act
requires nothing more.
Furthermore, regional emissions
analyses for the purposes of conformity
are to be conducted under this rule only
for each nonattainment area or area
subject to a maintenance plan under
Clean Air Act section 175A, not on a
statewide basis; Therefore, there is no
advantage to analyzing For conformity
groups of projects aggregated at the State
level. EPA believes that 1)01’s statewide
planning regulations provide adequate
assurance that the statewide plan and
STIP include only projects from
conforming metropolitan plans and
TIPs.
4. Other Transportation Modes
The NPRM for this rule applied
conformity only to actions by FHWA
and FTA. EPA received some public
comment on whether the transportation
conformity regulations should apply to
other modes of transportation, such as
railroads, airports, and ports.
The final transportation conformity
rule applies its criteria and procedures
only to FHWA and ETA actions. EPA
believes that the special
“transportation” provisions in Clean Air
Act sections 176(c)(2) and 176(c)(3)
clearly are addressed only to
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Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations 62207
transportation plans, programs, and
projects developed under title 23 U.s.c.
and the Federal Transit Act, which do
not address projects involving railroads,
airports, and ports. However, the
general conformity rule covers all other
Federal actions, including those
associated with railroads, airports. and
ports.
As some commenters pointed out,
there is no planning authority for these
activities vested in the MPO under
ISTEA. Although ISTEA emphasizes
intermodal planning, MPOs have only a
coordination responsibility. In general.
MPOs are not comprehensive
transportation or land use agencies.
Airport. rail, and shipping systems are
covered by separate Federal law, and
the TIP is not the appropriate tool for
controlling these activities.
However, EPA also agrees with some
commenters that the State may develop
an appropriate mechanism for dealing
with other transportation modes, either
through the transportation or general
conformity process.
5. Highway and Transit Operational
Actions
The NPRM’s proposed definition of
“transit project” specifically did not
encompass transit operational actions
such as route changes, service schedule
adjustments, or fare changes (58 FR
3788). The NPRM also did not intend
conformity to apply to changes in road
or bridge tolls (58 FR 3773). EPA invited
comment on what type of limited
application of conformity to these types
of actions might be appropriate and
received a substantial response from the
public on this issue.
The final rule does not consider
highway and transit operational actions
such as route, schedule, fare, or toll
changes to be a “transportation project”
subject to conformity. However, as
described in the NPRM, any changes of
this sort must be included in the
background modeling assumptions for
subsequent conformity determinations.
The final rule further clarifies this by
requiring that changes to transit
operating policies and assumed transit
ridership be documented in the
conformity determination in order to
demonstrate use of the latest planning
assumptions.
Although EPA acknowledges that
certain operational actions may be
significant, EPA was unable to identify
a defensible threshold above which
conformity determinations should be
required or triggered, nor a legal
rationale for requiring conformity
review of such activities. EPA believes
that it is not prectical or appropriate for
all operational actions to be found to
conform before they are implemented,
or for these actions to trigger conformity
determinations. As described in the
preamble to the NPRM, FTA is
specifically prohibited from becoming
involved in local decisions such as
fares, routes, and schedules, so section
176(c) does not seem to directly apply
to such actions. Furthermore, changes in
such policies are frequent. and transit
operators need the flexibility to respond
quickly to local needs. Requiring
conformity for these types of actions
would be unnecessarily burdensome,
especially because transportation
models cannot measure the impacts of
most individual route and schedule
changes. Using changes in operational
policies to trigger new determinations of
plans and TIPs also seems impractical
because operational changes are
frequent and unpredictable.
6. Multiple Stage Projects
Some commenters requested
clarification of how EPA intends to treat
projects with multiple stages. The
NPRM and the final rule define
“highway project” to consist of all
required phases necessary for
implementation. NEPA requires projects
to have logical termini and independent
utility. Therefore, project-level
conformity determinations are made on
entire projects as defined by NEPA, not
stages of them. NEPA termini must be
included in the regional analysis and
project-level analysis before the project
may be found to conform. If only some
of the pro ject’s stages are included in
the conforming TIP, the project may still
be found to conform provided the total
project is included in the regional
emissions analysis.
Hot spots must be addressed
separately for different project phases if
there is significant delay between them,
in order to prevent violations being
caused for a period of years before later
phases which would correct the
violations are actually programmed and
built.
7. Project-level Determinations
Some commenters requested
clarification on the responsibilities for
pro jedt-level determinations. Section
176(c) of the Clean Air Act requires
transportation projects which are
funded or approved by FHWA or PTA
to be found to conform before they can
be adopted or approved by an MPO or
approved, accepted, or funded by DOT.
MPOs do not necessarily adopt or
approve projects. and are not required
by the Clean Air Act to make project-
level conformity determinations unless
they perform a project-level adoption or
approval role. Project-level conformity
determinations are clearly necessary,
however, in order for DOT to fund a
project. EPA anticipates that if the MPO
does not adopt or approve a project, the
project sponsor (e.g., the State DOT) will
make a project-level conformity
determination of its own, or will at least
perform the required analysis and
recommend an affirmative
determination, in order to facilitate
DOT’s conformity determination. This is
similar to the way NEPA analyses are
conducted, and EPA expects that most
project-level conformity determinations
will be made as part of the NEPA
process.
8. Projects Which Are Not From a
Conforming Transportation Plan and
TIP
Regional analysis. Some commenters
requested clarification on how
conformity determinations are made for
projects in rural nonattainment areas
which are not associated with a
metropolitan area, and in areas which
are outside the MPO boundary but
inside the boundary of a nonattainment
or Clean Air Act section 175A
maintenance plan area that is
dominated by a metropolitan area
(“donut areas”).
The NPRM and the final rule require
the conformity SIP revision to include
in its interagency consultation
procedures a process involving the MPO
and State DOT for cooperative planning
and analysis for determining conformity
of projects in donut areas. Because an
MPO must consider in its regional
analysis of transportation plans and
TIPs all highway and transit projects in
the nonattainment or maintenance area,
the MPO and State DOT may choose to
actually include donut area projects in
the transportation plan and TIP. In such
cases, no further regional analysis of
such projects would be necessary.
If projects in donut areas are not
specifically included in the
transportation plan and TIP, the project-
level conformity determination would
have to document that such projects
were included in the original regional
emissions analysis used to demonstrate
conformity of the existing transportation
plan and TIP. Another option is to
perform a complete reanalysis in which
the project is hypothetically assumed to
be added to the transportation plan and
TIP, and the combination is tested to see
if it wquld satisfy all the conformity
criteria for transportation plans and
TIPs. If it would, the project may be
found to conform. EPA notes that this
reanalysis must use the latest planning
assumptions and emissions models,
which may have changed since the TIP
was adopted. Of the three options, EPA
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62208 Federal Register / Vol. 58, No. 225 I Wednesday, November 24, 1993 / Rules and Regulations
believes that all parties involved will be
better served by pursuing the first or
second option.
In isolated rural nonattainment areas -
(and other areas which do not Contain
a metropolitan planning area and which
are not part of a nonattainment or
maintenance Metropolitan Statistical
Area or Consolidated Metropolitan
Statistical Area) there is no metropolitan
transportation plan or TIP which
requires a regional emissions analysis.
The final rule provides that projects in
such areas may satisfy the regional
emissions conformity test if the projects
in the nonattainment or maintenance
area which are funded or approved by
FHWA or FTA are grouped together and
analyzed in a regional emissions
analysis, together with all other
regionally significant projects expected
In the nonattainment or maintenance
area. Projects need not be demonstrated
to meet the regional emissions criteria
on an individual basis; rather, one
regional emissions analysis may be
perfarmed which includes them all. The
statewide plan and STIP will provide
one mechanism for Identifying the
projects which need to be regionally
analyzed. Responsibilities for
conducting such analysis shall be
determined through the conformity SIP,
but EPA anticipates that the State DOT
will be primarily responsible for
conformity analyses in such areas.
In isolated rural areas, non-federal
projects may be considered to have been
included in a regional emissions
analysis of the transportation plan or
TIP if they are grouped with Federal
projects in the nonattainment or
maintenance area in the statewide plan
and STIP for the purposes of a regional
emissions analysis.
Interim period. EPA proposed that
during the interim period, projects not
from a conforming transportation plan
or TIP be afforded the same opportunity
to demonstrate conformity that such
projects have In the control strategy
period. Specifically, projects not from a
conforming transportation plan and TIP
could be included In a regional
emissions analysis of the projects
together with those of the conforming
plan and TIP In order to determine
whether the plan and TIP would still
conform to the SIP. This opportunity is
provided for all projects without
limitation in section 176(c)(2)(D) of the
Clean Air Act. Some commenters
indicated that this provision should not
be applicable during the interim period,
by which they mean the period prior to
adoption (or approval) of an emissions
budget.
Section 176(cli3) of the Clean Air Act
provides certain alternative methods for
demonstrating conformity with respect
to both plans and TIPs as well as
projects during an interim period,
defined as the period prior to the
approval of the conformity SIP revision.
However, the statute nowhere indicates
that the provisions of section 176(c)(3)
are the exclusive method of determining
conformity during the interim period as
the term is used in this rule and by the
commenters. Section 176(c)(3) provides -
that during the interim period,
conformity of projects “will be
demonstrated” if certain tests are met. It
does not say that conformity may only
be demonstrated through those tests.
EPA concludes that while projects
may take advantage of the provisions of
section 176(c)(3) during the interim
period, they may also demonstrate
conformity under section 176(c)(2)
where possible. Therefore, EPA is
retaining in the final rule the provisions
allowing the use of project-level
determinations under section
176(c)(2)(D) during the interim period,
with the applicable interim criteria in
the final rule substituted for the statute’s
“emission reduction projections and
schedules assigned to such plans and
programs” as the benchmark against
which conformity Is measured.
9. Multiple Nonattainment Areas and
MPOs
Some commenters requested
clarification on how conformity
determinations should be made if a
metropolitan planning area includes
multiple nonattainment areas, or if a
nonattainment area includes multiple
MPOs. In general, interagency
relationships and responsibilities will
be established by the conformity SIP
revision, If a metropolitan planning area
Includes more than one nonattainment
area, a conformity determination must
be made for each nonattainment area.
Emissions budgets established in the
SIP(s) for the included nonattainment
areas may not be combined or
reallocated. Buildfno-build tests must
be applied separately In each
nonattainment area. Where a
nonattainment area includes multiple
MPOs, the control strategy SIP may
either allocate emissions budgets to
each metropolitan planning area, or the
MPOs must act together to make a
conformity determination for the
nonattainnient area.
EPA also expects there to be
agreements among agencies on how to
make conformity determinations for
multistate nonattainment areas.
B. Applicable Implementation Plans
The NPRM defined the “applicable
implementation plan” to which
conformity must be demonstrated as a
SIP which has been approved by EPA or
a Federal implementation plan which
has been promulgated by EPA. EPA
received some comments expressing
concerns that in some areas, notably in
California, the approved SIP is quite
outdated, although there have been
relatively recent SIP submissions which
EPA has not yet approved. These
commenters argued that it is most
appropriate to determine conformity
with the SIP submission, which
represents the most recent SIP control
strategies, rather than the approved SIP.
The final rule retains the NPRM’s
definition of “applicable
implementation plan.” EPA believes
that it does not have the authority to
require conformity to an
implementation plan which has not
been approved by EPA and therefore
does not have the force of Federal law.
(During the transitional period, EPA
requires use of the submitted SIP to
determine contribution to annual
emission reductions, but does not
consider the submitted SIP to be the
“applicable implementation plan” to
which transportation plans, TIPs, and
projects must conform.) Because EPA
does not believe that SIPs approved
before 1990 have motor vehicle
emissions budgets which are applicable
for conformity purposes, TCMs are the
relevant element of an old approved
SIP. Areas with outdated SIPs have been
required to demonstrate timely
implementation of TCMs in the SIP at
least since the June 1991 EPA/DOT
interim conformity guidance. At that
time, EPA urged areas to revise their
SIPs to remove any TCMs which are
outdated and no longer appropriate, to
prevent failure to implement them from
prohibiting conformity determinations.
EPA continues to believe that because
the statute requires that conformity be
demonstrated with the approved SIP,
any outdated elements of that SIP which
areas are concerned would prohibit
conformity determinations must be
revised through the SIP process. EPA
will strive to expedite its action on such
SIP revisions.
C. Conformity SIP Revisions
EPA requested comment in the
preamble to the NPRM regarding the
legal form of the conformity SIP
revision. Commenters asserted that
States should not be required to
formally adopt regulations embodying
the conformity procedures. EPA has
reviewed this issue and concludes that
the appropriate form of the State
conformity procedures depends upon
the requirements of local law, so long as
the selected form complies with all
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Federal Register I Vol. 58. No. 225 / Wednesday. November 24. 1993 / Rules and Regulations 62209
Clean Air Act requirements for
adoption, submittal to EPA. and
implementation of SIPs.
Clean Air Act section 11O(a)(2)(A)
requires that all SIP measures be
enforceable, and section 1 1O(a)(2)(E)
requires that States have adequate
authority under local law to implement
the SIP. Read together. these provisions
require that the State have the authority
under State law to compel compliance
with the SIP conformity procedures by
the persons or entities to which they
apply. in whatever form the procedures
may take.
For the most part, EPA believes that
adopted regulations will be required at
the State or local level to enable States
to require MPOs, project sponsors.
recipients of funds designated under
title 23 U.S.C. or the Federal Transit
Act, and DOT to comply with the
requirements of State conformity
procedures. However. EPA understands
that in some States, environmental
board resolutions or air agency
administrative orders could provide
adequate authority. EPA will accept
State conformity procedures in any form
provided the State can demonstrate to
EPA’s satisfaction that, as a matter of
State law, the State has adequate
authority to compel compliance with
the requirements of the State conformity
procedures.
Whatever the form, EPA expects the
State procedures to mirror portions of
the text of EPA’s rule essentially
verbatim to ensure compliance with
Clean Air Act section 176(c), especially
§ 51.392 (definitions), 51.394
(applicability), and § 51.41O through
5 1.446 (criteria), except where the State
chooses to make its procedures more
stringent than the EPA rule, as provided
by § 51.396 of today’s rule.
EPA believes that, due to limitations
on the waiver of sovereign immunity in
the Clean Air Act, if a State wishes to
apply more stringent conformity rules
for the purpose of attaining air quality,
it may do so only if the same
requirements are imposed on non-
federal as well as Federal actions.
Differing State conformity rules may not
cause a more significant or unusual
obstacle to Federal agencies than non.
federal agencies for the same type of
action. Therefore, if a State determines
that more stringent conformity criteria
and procedures are necessary, these
requirements must be imposed on all
similar actions whether the sponsoring
agency is a Federal or non-federal
entity; non-federal entities include State
and local agencies and private sponsors.
If a State elects to impose more
stringent conformity requirements, they
nust not be so narrowly construed as to
apply in practical effect only to Federal
actions. For example, if a State decides
that actions of employers with more
than 500 employees require conformity
determinations, and the Federal
government is the only employer of this
size in a particular jurisdiction, then
this rule would be viewed as
discriminatory and would not be
permitted. Consequently, more stringent
State conformity rules must not only be
written to apply similarly to all Federal
and non-federal entities, but they must
be able to be implemented so that they
apply in a nondiscriminatory way in
practice. For a full discussion of the
issue of State authority to impose more
stringent conformity requirements. see
the preamble to the general conformity
final rule (“Determining Conformity of
General Federal Actions to State or
Federal Implementation Plans”).
Some commenters requested
clarification on whether attainment
areas, which are not subject to the final
rule, are required to submit conformity
SIP revisions within 12 months of the
promulgation of the final rule. The final
rule does not require attainment areas to
submit conformity SIP revisions.
However, as indicated in the preamble
section “Discussion of Major Issues.”
EPA intends to issue a supplementary
notice of proposed rulemaking which
would propose criteria and procedures
to apply conformity to attainment areas.
EPA intends to require conformity SIP
revisions for attainment areas within 12
months following promulgation of a
final rule establishing the criteria and
procedures applying conformity to
attainment areas.
This final rule does require a
conformity SIP revision within 12
months following an attainment area’s
redesignation to nonattainment.
D. Public Participation
The NPRM referenced DOT’s then as
yet unreleased metropolitan planning
regulations implementing ISTEA for
public participation requirements. Until
those regulations became effective, the
NPRM proposed to require agencies to
publish their proposed public
participation procedures and allow 45
days for written comments. The NPRM
also proposed to require MPOs to
prepare a summary and analysis of
written and oral comments before taking
final action on conformity
determinations, and to require
additional opportunity for public
comment if the transportation plan or
TIP to be submitted to DOT is
significantly different from the one
made available for public comment.
EPA received substantial public
comment on the issue of public
participation. Although some
commenters supported the NPRM’s
approach, some commenters believed
that the conformity rule should
establish minimum public participation
requirements. These commenters
suggested a range of minimum
requirements. including comment
periods, public hearings, and analysis of
significant comments.
EPA believes that to facilitate
cooperative air quality/transportation
planning, the public participation
requirements in the conformity rule
must be consistent with the public
participation procedures in the
transportation planning process.
FurthermQre, EPA believes that DOT’s
metropolitan planning regulations are
the appropriate mechanism for public
participation requirements because they
address the development of the
transportation plan and TIP themselves,
not just the conformity determinations.
The metropolitan planning
regulations require the metropolitan
transportation planning process in
general to include a proactive public
involvement process that provides
complete information, timely public
notice, full public access to key
decisions, and supports early and
continuing public involvement in
developing transportation plans and
TIPs. The regulations require a
minimum public comment period of 45
days before the public involvement
process is initially adopted or revised.
In serious and above nonattainment
areas, the regulations require a public
comment period of at least 30 days
before approval of plans, TIPs, and
majàr amendments. In nonattainment
area transportation management areas
(TMAs). at least one formal public
meeting must be held annually on the
development of the transportation plan
and the TIP. The regulations also
require a summary and analysis of
comments and additional opportunities
for comment after significant changes.
as proposed by the conformity NPRM.
Public involvement processes must be
periodically reviewed by the MPO for
effectiveness, and DOT will review the
procedures during certification reviews
and as otherwise necessary.
The NPRM and the final rule require
public participation on project-level
conformity determinations only as
otherwise required by law (e.g., as part
of the NEPA process). EPA and DOT
expect that project-level conformity
determinations will be made as part of
the NEPA process.
Because DOT’s metropolitan planning
regulations require MPOs to establish
and publish their public participation
procedures, and the conformity nile
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02210 Federal Register / Vol. 58,
No. 225 / Wednesday, November 24, 1993 / Rules and Regulations
requires that these procedures be
followed before conformity may be
determined, the conformity rule does
not require public participation
procedures to be part of the applicable
implementation plan.
E. Plan Content
I. Plan Specificity
The NPRM proposed to require
transportation plans adopted after
January 1, 1995 in serious and above
ozone and O nonattainment areas to
specifically describe the transportation
system in certain horizon years, in
sufficient detail to use a transportation
network demand model. EPA received
public comment that this provision
• requires too much specificity for a
transportation plan. In particular,
commenters were concerned that there
is such uncertainty in 20-year forecasts
that the plan and TIP will always be
inconsistent in the out-years.
Furthermore, some commenters stated
that it is difficult to select “best guess”
alternatives prior to corridor analyses,
and doing so may prejudge alternatives.
The final rule retains the
requirements for plan content and
separate regional analysis requirements
for “spdcific” plans, as proposed in the
NPRM. EPA recognizes the limitations
of long-range planning, and agrees that
the long-range transportation plan
should be a flexible planning document
which does not foreclose consideration
of alternatives. However. EPA wants the
conformity demonstration for a
transportation plan to show that the area
can develop and model a transportation
strategy that is consistent with the SIP’s
required emission reductions for
milestone years, the attainment year,
and maintenance in the following yeass.
This demonstrates that an area has
developed one transportation system
scenario which is consistent with the
SIP, and that the area is implementing
those activities which must begin now
in order to achieve a transportation
system consistent with the SIP. The area
is free to later choose different
alternatives, provided the new
transportation plan demonstrates that
the new transportation system scenario
is also consistent with the SIP (i.e., the
revised transportation plan is found to
conform).
EPA is emphasizing project-specific
transportation plans for serious and
above ozone and CO areas, because
state-of-the-art transportation network
demand modelingrequires project detail
to the extent that a regionally significant
project affects the speed-capacity
relationship, the connectivity of the
network, and significant alternatives to
the use of single-occupant vehicles. EPA
recognizes that detailed descriptions of
projects in the later years of the
transportation plan represent
assumptions about those future projects,
and expects that project descriptions,
will be modified to reflect information
from corridor analyses as areas
periodically update their transportation
plans. At the time of the project-level
conformity determination, if the
project’s design concept and scope is
significantly different from that in the
currently conforming transportation
plan and TIP, new regional analysis
including the project is required.
As EPA explained in the preamble to
the NPRM, the transportation system
must be analyzed in the context of the
transportation plan, because the TIP’s
timeframe is too short to account for
everything in the years the SIP’s
emissions budgets are addressing. To
show that a budget for a Future year will
be met, it will be necessary to account
for all facilities and services expected to
be operational in that year. even if they
are not yet in the TIP because they do
not yet need to be started. Where a
specific plan is not required by this rile,
one may be otherwise needed to mee 1 r
the requirements of ISTEA. Wherever a
non-specific plan is permissible under
both the Clean Air Act and ISTEA. the
TIP must show conformity to all future
emission budgets, taking into account
those projects included in the TIP, any
other projects specifically included in
the transportation plan, and regionally
significant non-federal projects.
2. Timeframe of the Transportation Plan
Several commenters requested that
transportation plans be required to
cover at least 20 years. The NPRM
proposed to require regional emissions
analyses to estimate emissions in the
last year of the transportation plan’s
forecast period.
ISTEA requires the metropolitan
transportation plan to address a period
of at least 20 years. The requirement for
a 20-year forecast period is covered in
the DOT metropolitan planning
regulations.
F. Relationship of Plan and TIP
Conformity With the National
Environmental Policy Act (NEPA)
Process
EPA received comments suggesting
that transportation plans and TIPs
should be subject to NEPA. DOT’s
metropolitan planning regulations
already require an analysis of major
transportation investments. Under this
provision, an appropriate range of
alternatives would be analyzed for
various factors, including social,
economic, and environmental effects.
Pending completion of the analysis.
either one particular alternative version
of the project or the no-build altern,i.ve
for the corridor in which the major
investment is located would be
evaluated as part of the plan and TIP
conformity analysis. This corridor/
subarea analysis of alternatives serves as
input to the draft NEPA document.
No Federal approval action is taken
on the transportation plan or TIP, and
there is no specific Federal commitment
to fund projects in the plan or TIP.
Furthermore, since the financial plans
for the plans and TIPs must include all
sources of funds, including State, local,
and private sources, it is likely that
some of the projects included will never
be proposed for Federal funding. In
view of this, it is not appropriate to
extend the NEPA process to
transportation plans and TIPs. In any
case, doing so would be an action under
NEPA, not the Clean Air Act, and is
beyond the scope of this rulemaking.
C. Latest PlanninR Assumptions
EPA proposed that conformity
determinations must use the latest
planning assumptions. In response to
public comment, the final rule explicitly
requires key assumptions to be specified
and included in the draft documents
and supporting materials used during
the interagency and public consultation
process.
Some commenters also expressed
concern that conformity determinations
may be using assumptions which are
different from the SIP assumptions,
because they are more recent. It should
be expected that conformity
determinations will deviate from (ho
SIP’s assumptions regarding VMT
growth, demographics, trip generation,
etc., because the conformity
determinations are required by Clean
Air Act section 176(c)(1) to use the most
recent planning assumptions. The final
rule does not require, as a commenter
suggested, that the conformity
determination require an assessment of
the degree to which key assumptions in
the transportation modeling process are
deviating from those used in the SIP,
and if the deviations are significant,
require an evaluation of the impact of
the deviation on the area’s ability to
reach the SIP’s emissions target. EPA is
not requiring this process because the
conformity determinations themselves
are intended to demonstrate that given
the most recent planning assumptions
and emissions models, the SIP’s
emissions reductions will be met.
However, States may require such a’
process in their conformity SIP
revisions.
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The final rule does require that
ambient temperatures be consistent with
those used in the SIP, and allows other
factors assumed in the SIP, such as the
fraction of travel in a hot stabilized
engine mode, to be modified in a
conformity determination only under
certain conditions.
1-1. Latest Emissions Model
EPA proposed to require a new
version of the motor vehicle emissions
model to be used in any conformity
analysis begun three months after its
release, unless EPA and DOT announce
an extension of the grace period in the
Federal Register.
EPA received comments stating that
the grace period was both too long and
too short, and requesting clarification on
how the grace period would be
extended. EPA and DOT will consider
extending the grace period if the effects
of the new emissions model are so
significant that previous SIP
demonstrations of what emission levels
are consistent with attainment would be
substantially affected. In such cases.
States should have an opportunity to
revise their SIPs before MPOs must use
the model’s new emission factors. EPA
encourages all agencies to inform EPA
of the impacts of new emissions models
in their areas, and EPA may pause to
seek such input before determining the
length of the grace period.
EPA is concerned that the proposal
would have considered analyses begun
before a new model is released or during
the grace period to satisfy the “latest
emissions model” criterion indefinitely.
Therefore, the final rule provides that a
final environmental document may
continue to use the previous version of
the motor vehicle emissions model
provided no more than three years have
passed since the draft was issued.
MOBILE5a Internally bearing the
release date of March 26. 1993.
including “MOBILE5 Information Sheet
#2: Estimating Idle Emission Factors
Using MOBILE5.” is hereby announced
by EPA to be the latest motor vehicle
emissions model outside California.
There will be a one-year grace period
prior to required use of this model for
CO hot-spot or regional analyses for
conformity determinations, beginning
November 24, 1993. Future revisions
and their grace periods will be
announced in the Federal Register. EPA
also hereby announces that in
California, EMFAC7F is the latest motor
vehicle emissions model, and the three-
month grace period for use of this model
begins November 24, 1993.
L TCMs
The NPRM proposed to require timely
implementation of those TCMs in the
SEP which are eligible for title 23 U.S.C.
or Federal Transit Act funding. Some
commenters stated that all TCMs should
meet the timely Implementation test,
regardless of their source of funding.
The final rule retains the provisions of
the NPRM.
Clean Air Act section 176(c)(2)(B)
requires TIPs to provide for timely
implementation of TcMs, but does not
define TCMs. The statute is therefore
ambiguous with respect to which FCMs
must be implemented, and EPA may
take any reasonable interpretation of the
definition of TCMs. Chevron v. NRDC,
467 U.S. 837 (1984). Since plans and
TIPs can at the most “provide for” only
those projects which are eligible for
Federal funding, it is reasonable to
define those TCMs required to be
implemented by Clean Air Act section
176(c)(2)(B) to be only those SIP TCMs
that are eligible for Federal funding.
J. Regional Emissions Analysis
1. Regionally Significant Projects
The NPRM defined “regionally
significant” to mean a facility with an
arterial or higher functional
classification, plus any other facility
that serves regional travel needs (such
as access to and from the area outside
of the region; to major activity centers
in the region; or to transportation
terminals) and would normally be
included in the modeling for the
transportation network.
EPA received comments indicating
that “regionally significant” should be
more clearly defined, perhaps by a
quantifiable threshold. Some
commenters believed that “regionally
significant” should be defined by the
State or air quality agency, that the
definition should include only
freeways, or that the definition should
be based upon air quality impact.
The final rule includes a definition of
“regionally significant project” which is
substantially similar to that in the
NPRM. EPA has been unable to
determine a quantifiable threshold that
would consistently and appropriately
reflect the concept of “regionally
significant” and believes it is
appropriate to allow flexibility and
professional judgment in the definition
of “regionally significant.”
In response to comment that
“arterial” is not a DO’I’ functional
classification, the final rule specifies
that regionally significant includes, at a
minimum, all principal arterials.
Although EPA believes that some minor
arterials are regionally significant, EPA
believes that requiring all minor
arterials to be modeled on a network
model could involve a significant
change in current modeling practice.
Therefore, the final rule makes the
determination of regionally significant
projects a topic of interagency
consultation, and allows the definition
of regionally significant to be expanded
through this process. The interagency
consultation process must specifically
address which minor arterials are also
regionally significant.
Some commenters pointed out that
the NPRM’s definition of “regionally
significant” relied on highway
terminology, and it was not clear that
transit projects were also covered by the
definition. Therefore, the final rule also
defines any fixed guideway transit
system or extension that offers an
alternative to regional highway travel to
be regionally significant.
2. Projects Included in the Regional
Emissions Analysis
EPA proposed criteria which required
regional emissions analysis of projects
in the transportation plan and TIP and
all other regionally significant projects
expected in the nonattainment or
maintenance area. Some commenters
expressed concern about projects in the
transportation plan and TIP which
cannot normally be modeled with a
transportation network demand model.
The final rule clarifies that emissions
from projects whIch are not regionally
significant, but which have or affect
vehicle travel, may be estimated in
accordance with reasonable professional
practice. For example, the regional
emissions analysis may assume that
VM’F on local streets not represented in
the network model Is a certain
percentage of network VMT, without
explicitly considering the new local
streets. In addition to projects that are
not regionally significant, the benefits of
TCMs that cannot be analyzed through
the modeling process may be estimated
in accordance with reasonable
professional practice.
EPA proposed that the regional
emissions analysis could not include for
emissions reduction credit any TCMs
which have been delayed beyond the
schedule in the SIP, until
implementation has been assured. In
response to public comment, the final
rule clarifies that if a TCM has been
partially implemented and it can be
demonstrated that It is providing
quantifiable emission reduction
benefits, the regional analysis may
include that emission reduction credit.
The final rule also clarifies that
during the control strategy and
maintenance periods, control pros as
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62212 Federal Register I Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations
which are external to the transportation
system itself (e.g., tailpipe or
evaporative emission standards, limits
on gasoline volatility, inspection and
maintenance programs, oxygenated or
reformulated gasoline or diesel fuel)
may be assumed in the regional
emissions analysis only if the program
has been adopted by a State or local
government, if an opt-in to a Federally-
enforced program has been approved by
EPA, if EPA has promulgated the
program (if the control program is a
Federal responsibility, such as tailpipe
standards), or if the Clean Air Act
requires the program without need for
individual State action and without any
discretionary authority for EPA to set its
stringency, determine its effective date,
or not implement the program.
The build/no-build test may assume
the above programs, but the same
assumptions must be made in both the
“build” and “no build” case. During the
transitional period, control measures or
programs which are committed to in a
SIP submission which is not yet
approved by EPA may be assumed for
emission reduction credit when
demonstrating consistency with the SIP
submission’s motor -vehicle emissions
budget.
3. Modeling Procedures
EPA proposed several attributes
which a transportation network demand
model must possess. In some cases, EPA
specifically did not require certain
attributes unless the necessary
information was available. Some
commenters believed tL’at EPA should
commit to review the attributes which
were not specifically required. EPA
intends to continue to i eview progress
in transportation modeling, and the
public can also petition for future
rulemaking.
Some commenters expressed concern
that the cumulative effect of non-
regionally significant projects is not
accounted for in the regional emissions
analysis. The NPRM and the final rule
specifically say that reasonable methods
shall be used to estimate vehicle travel
on off-network roadways. EPA believes
that one such method would be to
consider VMT on non-regionally
significant facilities to be some
percentage of network VMT. The rule
requires documentation of all key
assumptions used in emissions
analyses. so there will be opportunity
for public review of how vehicle travel
is considered.
EPA asked for comment on whether
serious PM—b nonattainment areas
should be required to use transportation
network demand models, as required for
serious and ab’ve ozone and CO areas.
Comments were received on both sides
of the issue. The final rule does not
require network models in PM—la areas,
because EPA believes that the resources
involved in such modeling efforts may
often exceed the benefits in PM—la
areas. In many PM—b areas, regional
PM—Ia emissions are due to
construction-related fugitive dust and
re-entrained dust, for which
transportation network demand models
may not offer special advantages.
Agencies in PM- 10 areas must consult
with each other on how to model PM—
10 emissions.
4. Build/no-build Test
Based on comments received on the
interim period regional emissions test,
EPA believes it is important to clarify
that because both the “build” and “no-
build” scenarios must make the same
assumptions regarding fleet turnover,
inspection and maintenance programs,
reformulated gasoline, etc., emission
reductions from these programs and
control measures are factored out and
the emission reductions from the
transportation plans and programs
themselves are isolated.
K. Hot-spot Criteria and Analysis
EPA proposed to require projects to
demonstrate that they eliminate or
reduce the severity and number of
localized CO violations in CO
nonattainment areas. In response to
comment, EPA has clarified in the final
rule that this criterion applies in the
project area. That is, a project is
responsible for eliminating or reducing
CO violations in the area substantially
affected by the project. If there are no
localized CO violations and would not
be any in the project area, the project
satisfies this criterion.
Some commenters also requested
clarification on the hot-spot criteria.
EPA intends that the hot-spot analysis
compare concentrations with and
without the project based on modeling
of conditions in the analysis year. The
hot-spot analysis is intended to assess
possible violations due to the project in
combination with changes in
background levels over time. Estimation
of background concentrations may take
into account the effectiveness of
anticipated control measures in the SIP
if they are already enforceable and
creditable in the SIP.
EPA proposed to allow the hot-spot
criteria to be satisfied without
quantitative hot-spot analysis if a
qualitative demonstration can be made
based on consideration of local factors.
EPA requested comment on cutoffs on
project size, geography, or other -
characteristics above which quantitative
modeling is always required. EPA s
November 1992 “Guideline for
Modeling Carbon Monoxide from
Roadway Intersections” requires for ilw
purposes of SIP development the
quantitative modeling of all
intersections that are Level-of-Servk e
(LOS) D, E, or F or that will change to
LOS D, E, or F because of increased
traffic volumes related to a new project
in the vicinity. EPA’s guidance also
requires modeling of the top three
intersections in the area based on
highest traffic volume and the top three
intersections based on the worst LOS.
Therefore, the final rule requires that
projects involving or affecting any such
intersections must be quantitatively
modeled using that EPA guidance. The
final rule would still allow qualitat’ivo
analysis for projects at other locations ii
it clearly demonstrates satisfaction of
the hot-spot criteria.
EPA also requested comment on when
quantitative PM—la hot-spot modeling
is required. The comments EPA
received were generally consistent with
the approach discussed in the preamble
to the NPRM. Therefore, although the
hot-spot criterion in general allows
either qualitative or quantitative
demonstrations (as discussed above),
the final rule explicitly requires
quantitative PM—b hot-spot modeling
for projects at sites within the area
substantially affected by the project at
which violations have been verified by
monitoring, and at sites which have
essentially identical roadway and
vehicle emissions and dispersion
characteristics (including sites near one
at which a violation has been
monitored). These sites shall be
identified through interagency
consultation. In PM—b nonattainmertt
and maintenance areas, new or
expanded bus terminals and transfer
points and commuter rail terminals
which increase the number of diesel
vehicles congregating at a single
location will generally require
quantitative hot-spot analysis, except in
cases where it can be demonstrated,
based on appropriate dispersion
modeling for projects of similar size,
configuration, and activity levels, that
there is no threat of a violation of the
PM—la standard. Conformity
determinations on bus purchases (for
replacements or minor expansions of
the existing fleet) would not have to
consider potential PM—la hot-spot
violations, as discussed in the preamble
to the NPRM, because the incremental
improvement in emissions spread over
the service area of a metropolitan transit
operator is considered to be a do
minimis impact on air quality.
Moreover, FTA has no control over how
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Federal Register / Vol. 58, No. 225 I Wednesday. November 24, 1993 / Rules and Regulations 62213
these new, cleaner buses are to be
deployed in local operations.
Several commenters were concerned
about the technical capability to
perform PM—b hot-spot analysis. EPA
will be releasing technical guidance on
how to use existing modeling tools to
perform PM—b hot-spot analysis. The
requirements for quantitative PM—b
hot-spot analysis will not take effect
until the Federal Register has
announced availability of this guidance.
Also. FT/i plans to issue guidance
shortly on PM—b hot-spot analysis for
several common types of transit
projects. This guidance will help project
sponsors determine when quantitative
hot-spot analysis is needed and how to
perform the analysis.
EPA also requested comment on how
to define “new” violations as opposed
to relocated violations. Commenters did
not propose any such clarification, and
no language on this subject has been
added to the final rule. EPA continues
to believe that a seemingly new
violation may be considered to be a
relocation and reduction of an existing
violation only if it were in the area
substantially affected by the project and
lithe predicted design value for the
“new” site would be less than the
design value at the “old” site without
the project—that is. if there would be a
net air quality benefit.
Although no comment was received
on the subject. problems may arise with
respect to projects which dispersion
modeling predicts to have a range of air
quality effects in the “area substantially
affected by the project.” A project may.
for example. reduce existing
concentrations at several receptors
while increasing concentrations at
others.
EPA plans to issue guidance which
would clarify the concept of “the area
substantially affected by the project”
and allow conformity demonstrations to
distinguish between new and relocated
violations. For example, while EPA
believes that a “new” violation within
the same intersection as an existing
violation could be considered a
relocation, whether a rtew violation
miles from the existing violation should
likewise be considered to be “relocated”
asa result of changed traffic patterns is
a question EPA will seek to address in
this post-rule guidance. Interested
parties are invited to provide their
views to EPA for consideration.
L. Exempt Projects
EPA proposed a list of projects which.
because they had no emissions impact,
were considered to be neutral or de
minimis and therefore should be exempt
from conformity requirements. EPA
received no comments opposing an
exempt project list, but received a
number of comments suggesting both
additions and deletions to it.
EPA agrees with commenters that
emergency truck pullovers, directional
and informational signs. and
transportation enhancement activities
(except rehabilitation and operation of
historic transportation buildings.
structures, or facilities) are emissions
neutral, and the final rule exempts these
types of projects. Transportation
enhancement activities are defined by
ISTEA as “provision of facilities for
pedestrians and bicycles, acquisition of
scenic easements and scenic or historic
sites, scenic or historic highway
programs. landscaping and other scenic
beautification, historic preservation.
rehabilitation and operation of historic
transportation buildings, structures or
facilities (including historic railroad
facilities and canals), preservation of
abandoned railway corridors (including
the conversion and use thereof for
pedestrian or bicycle trails), control and
removal of outdoor advertising.
archaeological planning and research.
and mitigation of water pollution due to
highway runoff.”
The final rule also exempts repair of
damage from natural disasters, civil
unrest, or terrorist acts, except for
projects involving substantial
functional, locational, or capacity
changes. Finally, the final rule also
exempts specific activities which do not
involve or lead directly to construction,
such as planning and technical studies.
grants for training and research
programs, planning activities conducted
pursuant to titles 23 and 49 U.s.c., and
Federal-aid systems revisions. These
activities do not contribute to emissions,
and they do not fall under the definition
of construction or a project under 23
U.S.C. 101(a).
Because intersection signalization
projects which are systemwide may
have regional emissions impacts. EPA
has clarified that only intersection
signalization projects at individual
intersections are exempt from regional
emissions analysis. As proposed in the
NPRM, however, all intersection
signalization projects in cc and PM—b
areas are required to have a
determination regarding their localized
air quality impacts.
The final rule clarifies that in PM—b
nonattainment and maintenance areas.
rehabilitation of buses and purchase of
new buses to replace existing vehicles
or for minor expansions of the fleet are
exempt projects only if they are in
compliance with the SIP’s control
measures involving such projects (if
any). For example. if the SIP specifies
that new buses will be alternatively
fueled, purchases of diesel buses would
not be exempt.
EPA agrees with commenters that
deletion of ridesharing and van pooling
promotion activities would have
emissions impacts. However, deletion of
these activities would not be exempt
under the NPRM or final rule because it
is not “continuation of ridesharing and
vanpooling promotion activities at
current levels.”
Some commenters asserted that
operating assistance to transit agencies
should not be exempt. EPA believes that
operating assistance should remain
exempt because FT/i has no control
over how operating assistance is used
locally, and because increases or
decreases in operating assistance at the
Federal level may be balanced by new
sources of revenue at the State and local
level. To the extent that the local
cooperative planning process influences
the level of operating assistance, the
increase or decrease in operating
assistance is necessarily offset by
changes in capital assistance for transit
in the same metropolitan area.
Therefore, the net effect on financing for
transit should be neutral. However, the
final rule does require conformity
determinations to use and document the
latest assumptions regarding transit
operating policies and assumed transit
ridership.
A number of commenters proposed
exempting other types of projects from
the conformity requirements, notably
travel demand management actions
whose air quality effects cannot be
accurately assessed in a regional
modeling context. The objective in
implementing a program or project
involving travel demand management is
to achieve measurable reductions in
congestion and vehicle emissions
within a corridor or at a specific site;
thus, it is not appropriate to exempt
such programs or projects from
conformity requirements. The final rule
does state that if the effects of these
projects cannot be discerned through
traditional regional travel demand
modeling, other accepted methods of
quantifying their effects are encouraged.
Some commenters requested
clarification of projects on the exempt
list. EPA intends that intersection
channelization include left-turn/right-
turn slots and continuous left turn
lanes, as well as those lanes/movements
that are physically separated. Advance
land acquisitions (23 CFR part 712 or 23
CFR part 771) are a parcel or limited
number of parcels which are acquired to
protect a property from imminent
development and increased costs which
would tend to limit a choice of
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62214 Federal Register / Vol . 58. No. 225 / Wednesday. November 24, 1993 / Rules and RegulaLions
transportation alternatives, or are
acquired to alleviate particular hardship
to a property owner at his or her
request. This is only allowed in
emergency or extraordinary cases, and
only after the State department of
transportation has given official notice
to the public that a preferred highway
or transit location has been selected,
held a public hearing, or provided an
opportunity fore public hearing.
VI. Environmental and Health Benefits
This rule will help ensure that the
implementation plan achieves its goal of
attaining air qualP y standards. The
environmental and health benefits of
attaining the national ambient air
quality standards are attributable to the
strategies contained in the
implementation plan rather than to this
rule directly.
VII. Economic Impact
The primary Impact of this rule
involves the increased requirements for
MPOs to perform regional transportation
and emissions modeling and document
the regional air quality impacts of
transportation plans and programs.
Because conformity requirements have
existed in some form since 1977, the
framework for consultation and TCM
tracking has already been established.
The impact of this rule on MPOs may
vary widely depending on the pollutant
for which an area is in nonattainment,
the classification of the nonattainment
area, the population of the area, and the
technical capabilities already developed
in the area.
A DOT survey in September1992 of
MPOs in 98 ozone nonattainment areas
indicated that during Phase I of the
interim period, most MPOs are spending
less than $50,000 for a conformity
determination on the transportation
plan and TIP. Of the 68 MPOs
responding, 76% are spending less than
$50,000, 21% are spending between
$50,001 and $100,000, and 3% are
spending between $100,001—250,000.
MPOs serving populations over one
million had clearly higher conformity
costs than MPOs serving smaller
populations.
Conformity determinations are
required whenever a transportation plan
or TIP is adopted or amended. DOT’s
metropolitan planning regulations at 23
CFR part 450 require transportation
plans to be reviewed and updated at
least every three years in nonattainment
and maintenance areas, and they require
‘liPs to be updated at least every two
years.
The conformity rule also requires
periodic redetermination of conformity
for transportation plans and TIPs at least
every three years. However, because
DOT’s metropolitan planning
regulations require new transportation
plans and TIPs at least that often, the
conformity rule’s provisions for periodic
redetermination should not impose any
new burden.
Finally, the conformity rule requires a
conformity determination for the
transportation plan within 18 months
after EPA approves a SIP revision which
affect TCMs or the motor vehicle
emissions budget.
Transportation projects also require
conformity determinations. In ozone
and NO 2 nonattainment areas, the
conformity requirements are satisfied
provided the project is included in a
current, conforming transportation plan
and TIP. If the project is not included
in the transportation plan and TIP, a
regional emissions analysis including
the transportation plan, TIP, and project
must be performed. In CO and PM—b
nonattainment areas, project-level
conformity determinations also require
a hot-spot analysis. This analysis of
localized impacts is performed as part of
the existing NEPA process.
There are approximately 300 ozone,
CO, N02, and PM—ia nonattainment
areas. Because some areas are in
nonattainment for more than one
pollutant, there are about 250 individual
nonattainment areas which are required
to perform conformity determinations.
EPA expects that areas will determine
conformity for TIPs annually, and in
general, areas will determine conformity
for transportation plans once every three
years.
If it is assumed that the ozone areas
surveyed by DOT in September 1992 are
representative of all nonaflainment
areas, the estimated total annual
conformity costs for the nation’s
transportation plans and TIPs is
$16,625,000. This is a preliminary
estimate based ott the requirements
contained in the interim conformity
guidance EPA and DOT are solicity
further information from MPO’s which
will be used in the preparation of the
information collection request (see VIII.
B. Reporting and Recordkeeping
Requirements) subsequent to the
publication of this rule.
These estimates do not necessarily
reflect the costs which will result from
this final rule. On one hand, these may
be overestimates of the costs, because
determinations will probably become
less expensive as the MPOs gain
experience. For example, for future
determinations it may be possible to
perform the modeling with fewer runs.
On the other hand, these estimates do
not reflect the more specific
requirements of this rule and may
therefore underestimate the cost of
determinations in the control strategy
period. EPA welcomes reports from
MPOs on the costs of making conformity
determinations on plans and TIPs
according to the requirements of this
rule.
Because ISTEA and other CAA
provisions also directly or indirectly
require increased modeling, it is
difficult to entirely separate the costs
attributable to the conformity
requirements alone. For example, ISTEA
assigns more responsibility to the MPOs
and shifts the planning focus to
intermodalism and congestion
management. This will require more
sophisticated transportation modeling.
The VMT tracking and forecasting
requirements in sections 182 and 167 of
the CAA will also promote the use of
transportation demand network models
in some nonattainment areas.
In addition, although the conformity
requirements may prompt additional
data collection and model development.
these costs cannot be solely attributed to
conformity. It is an ongoing
responsibility of MPOs to review and
upgrade their analysis capabilities to
reflect the most recent understanding of
travel demand and transportation
forecasting. Resource constraints during
the 1980’s prevented many MPOs from
updating their analysis procedures, so
conformity is in many cases simply
raising the priority of modeling
Improvements.
Metropolitan planning is eligible for
funds under ISTEA. In addition, EPA
has attempted (0 minimize the costs of
conformity in several ways. First. EPA
is establishing flexible methodological
requirements for regional analyses in
areas which do not use network models
in order to accommodate the varying
technical capabilities of MPOs. In
addition, by designating projects which
are exempt from conformity
determinations or regional analyses,
EPA is allowing project sponsors to
conserve their analysis resources.
Finally. EPA has attempted to minimize
the frequency of conformity
redetermination by requiring periodic
redetermination only every three years
(which is the longest period allowed by
the Clean Air Act), by limiting the
number of triggers for redetermination,
and by allowing grace periods before the
use of new emissions models and
following an area’s reclassification.
VIII. Administrative Requirements
A. Administrative Designation
Executive Order 12866
Under Executive Order 12866, (56 FR
51735 (October 4, 1993)) the Agency
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Federal Register I Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations 62215
must determine whether the regulatory
action is “significant” and therefore
sub ject to 0MB review and the
requirements of the Executive Order.
The Order defines “significant
regulatory action” as one thai is likely
to result in a rule that may:
(1) Have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity, competition, jobs, the
environment, public health or safety, or
State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency;
(3) Materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or
(4) Raise novel legal or policy issues
arising out of legal mandates, the
President’s priorities, or the principles
set forth in the Executive Order.
Pursuant to the terms of Executive
Order 12866, it has been determined
that this rule is a “significant regulatory
action”. As such, this action was
submitted to 0MB for review. Changes
made in response to 0MB suggestions or
recommendations will be documented
in the public record.
B. Reporting and Recordkeeping
Requirements
This rule does not contain any
information collection requirements
from EPA which require approval by the
Office of Management and Budget
(0MB) under the Paperwork Reduction
Act of 1980. 44 U.s.c. 3501 et seq. DOT
will be preparing an information
collection request subsequent to thtt
publication of this rule.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980
requires federal agencies to identify
potentially adverse impacts of federal
regulations upon small entities. In
!nstances where significant impacts are
possible on a substantial number of
these entities, agencies are required to
perform a Regulatory Flexibility
Analysis (RFA).
EPA has determined that today’s
regulations will not have a significant
impact on a substantial number of small
entities. This regulation will affect
Federal agencies and metropolitan
planning organizations, which by
definition are designated only for
metropolitan areas with a population of
at least 50,000.
Recipients of title 23 U.S.C. or Federal
Transit Act funds must determine that
their highway and transit projects are
included in a conforming transportation
plan and TIP, or a regional emissions
analysis including the project.
transportation plan, and TIP must
demonstrate that the transportation plan
and TIP would still conform if the
project were implemented. Because
MPOs are responsible for performing
regional emissions analysis which
includes all such projects, and because
DOT’s metropolitan planning
regulations at 23 CFR part 450 already
require such projects to be included in
the transportation plan, and in the TIP
for informational purposes, this
requirement does not pose a significant
burden for small entities.
Potential delays in highway
construction that may result from the
need to make positive conformity
determinations as required by this rule
could appear to adversely affect small
entities that may be relying upon future
highway construction to provide them
with certain benefits. However, any
such delays would merely preserve the
status quo, and would not limit any
benefits currently available to small
entities.
Therefore, as required under section
605 of the Regulatory Flexibility Act, 5
U.S.C. 601 et seq.. I certify that this
regulation does not have a significant
impact on a substantial number of small
entities.
List of Subjects
40CFRPart 1
Environmental protection.
Administrative practice and procedure,
Air pollution control, Carbon monoxide.
Intergovernmental relations. Lead,
Nitrogen dioxide, Ozone, Particulate
matter, Reporting and recordkeeping
requirements, Sulfur oxides, Volatile
organic compounds.
40 CFR Part 93
Administrative practice and
procedure, Air pollution control, Carbon
monoxide, Intergovernmental relations,
Lead. Ozone.
Dated: November 15. 1993.
Carol M. Browner,
Administrator.
For the reasons set out in the
preamble, title 40. chapter I of the Code
of Federal Regulations is amended as
follows:
PART 51— [ AMENDEDJ
1. The authority citation for part 51
continues to read as follows:
Authority: 42 U.S.C. 7401 .76 7 lp.
2. Part 51 is amended by adding a
new subpart T to read as follows:
Subpart T—.Confonnlty to Stat. or Federal
implementation Plans of Transportation
Plans, Programs, and Projects Developed,
Funded or Approved Under Title 23 u.s.c.
or the Federal Transit Act
Sec.
51.390 Purpose.
51.392 Definitions.
51.394 Applicability.
51.396 Implementation plan revision.
51.398 Priority.
51.400 Frequency of conformity
determinations.
51.402 Consultation.
51.404 Content of transportation plans.
51.406 Relationship of transportation plan
and TIP conformity with the NEPA
process.
51.408 Fiscal constraints for transportation
plans and TIPs.
51.410 Criteria and procedures for
determining conformity of transportation
plans, programs, and projects: General.
51.412 Criteria and pmccdures Latest
planning assumptions.
51.414 Criteria and procedures: Latest
emissions model.
51.416 Criteria and procedures:
Consultation.
51.418 Criteria and procedures: Timely
implementation of TCMs.
51.420 CriterIa and procedures: Currently
conforming transportation plan and TIP.
51.422 Criteria and procedures: Projects
from a plan and TIP.
51 424 Criteria and procedures: Localized
cO and PM 10 violations (hot spots).
51.426 CriterIa and procedures: Compliance
with PM 10 control measures.
51.428 Criteria and procedures: Motor
vehicle emissions budget (transportation
plan).
51.430 Criteria and procedures: Motor
vehicle emissions budget (TIP).
51.432 Criteria and procedures: Motor
vehicle emissions budget (project not
from a plan and TIP).
51 , 34 Criteria and procedures: Localized
CO violations (hot spots) in the interim
period.
51 436 Criteria and procedures: Interim
period reductions in ozone and CO areas
(transportation plan).
51.438 Criteria and procedures: Interim
period reductions In ozone and CO areas
(TIP).
51.440 Criteria and procedures: Interim
period reductions for ozone and CO
areas (project not from a plan and TIP).
51.442 Criteria and procedures: Interim
period reductions for PM 10 and NO 2
areas (transportation plan).
51.444 Criteria and procedures; Interim
period reductions for PM 10 and NO 2
areas (TIP).
51.446 Criteria and procedures: Interim
period reductions for PM 10 and NO2
areas (project not from a plan and TIP).
51.448 Transition from the Interim period to
the control strategy period.
51.450 Requirements for adoption or
approval of projects by other recipients
of funds designated under title 23 U.S.C.
or the Federal Transit Act.
51.452 Procedures for determining regional
trencnnrtstinn.rahitpd pmisrinn
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62216 Federal Register / Vol. 58, No. 225 I Wednesday, November 24, 1993 / Rules and Regulations
Se
51.454 Procedures for determining localized
CO and PM , o concentrations (hot-spot
analysis).
51.456 Using the motor vehicle emissions
budget in the applicable implementation
plan (or implementation plan
submission).
51.458 Enforceability of design concept and
scope and project-level mitigation and
control measures.
51.460 Exempt projects.
51.462 Projects exempt from regional
emissions analyses.
51.464 Special provisions for nonattainment
areas which are not required to
demonstrate reasonable further progress
and attainment.
Subpart T—Conformlty to Slate or
Federal Implementation Plans of
Transportation Plans, Programs, and
Projects Developed, Funded or
Approved Under TItle 23 U.S.C. or the
Federal TransIt Act
51.39O Purpose.
The purpose of this subpart is to
implement section 176(c) of the Clean
Air Act (CAA), as amended (42 U.S.C.
7401 et seq.), and the related
requirements of 23 U.S.C. 109(j), with
respect to the conformity of
transportation plans, programs, and
projects which are developed, funded.
or approved by the United States
Department of Transportation (DOT),
and by metropolitan planning
organizations (MPOs) or other recipients
of funds under title 23 U.S.C. or the
Federal Transit Act (49 U.S.C. 1601 et
seq.). This subpart sets forth policy.
criteria, and procedures for
demonstrating and assuring conformity
of such activities to an applicable
implementation plan developed ‘S
pursuant to section 110 and Part 0 of
the CAA.
§ 51 .392 DefinitIons.
Terms used but not defined in this
subpart shall have the meanuig given
them by the CAA, titles 23 and 49
U.S.C., other Environmental Protection
Agency (EPA) regulations, or other DOT
regulations, in that order of priority.
Applicable implementation plan is
defined in section 302(q) of the CAA
and means the po tion (or portions) of
the implementation plan, or most recent
revision thereof, which has been
approved under section 110, or
promulgated under section 110(c), or
promulgated or approved pursuant to
regulations promulgated under section
301(4) and which implements the
relevant requirements of the CA.A.
CAA means the Clean Air Act, as
amended.
Cause or contribute to a new violation
for a project means:
(1) To cause or contribute to a new
violation of a standard in the area
substantially affected by the project or
over a region which would otherwise
not be in violation of the standard
during the future period in question, if
the project were not implemented; or
(2) To contribute to a new violation in
a manner that would increase the
frequency or severity of a new violation
of a standard in such area.
Control strategy implementation plan
revision is the applicable
implementation plan which contains
specific strategies for controlling the
emissions of and reducing ambient
levels of’ pollutants in order to satisfy
CAA requirements for demonstrations of
reasonable further progress and
attainment (CAA sections 182(b)(1),
182(c)(2)(A), 182(c)(2)(B), 187(a)(7),
189(a)(1)(B), and 189(b)(1)(A); and
sections 192(a) and 192(b), for nitrogen
dioxide).
Control strategy period with respect to
particulate matter less than 10 microns
in diameter (PM 10 ), carbon monoxide
(CO), nitrogen dioxide (NO 2 ), and/or
ozone precursors (volatile organic
compounds and oxides of nitrogen),
means that period of time after EPA
approves control strategy
implementation plan revisions
containing strategies for controlling
PM 10 . NO 2 , CO. and/or ozone, as
appropriate. This period ends when a
State submits and EPA approves a
request under section 1o7 d) of the CAA
for redesignation to an attainment area.
Design concept means the type of
facility identified by the project, e.g.,
freeway, expressway, arterial highway.
grade-separated highway, reserved right-
of-way rail transit, mixed-traffic rail
transit, exclusive busway, etc.
Design scope means the design
aspects which will affect the proposed
facility’s impact on regional emissions,
usually as they relate to vehicle or
person carrying capacity and control,
e.g., number of lanes or tracks to be
constructed or added, length of project,
signalization, access control including
approximate number and location of
interchanges; preferential treatment for
high-occupancy vehicles, etc.
DOT means the United States
Department of Transportation.
EPA means the Environmental
Protection Agency.
FHWA means the Federal Highway
Administration of DOT.
Fl-IWA/FTA project, for the purpose of
this subpart, is any highway or transit
project which is proposed to receive
funding assistance and approval
through the Federal-Aid Highway
program or the Federal mass transit
program, or requires Federal Highway
Administration (FHWA) or Federal
Transit Administration (FTA) approval
for some aspect of the project, such as
connection to an interstate highway or
deviation from applicable design
standards on the interstate system.
FTA means the Federal Transit
Administration of DOT.
Forecast period with respect to a
transportation plan is the period
covered by the transportation plan
pursuant to 23 CFR part 450.
Highway project is an undertaking to
implement or modify a highway facility
or highway-related program. Such an
undertaking consists of all required
phases necessary for implementation.
For analytical purposes, it must be
defined sufficiently to:
(1) Connect logical termini and be of
sufficient length to address
environmental matters on a broad scope;
(2) Have independent utility or
significance, i.e., be usable and be a
reasonable expenditure even if no
additional transportation improvements
in the area are made; and
(3) Not restrict consideration of
alternatives for other reasonably
foreseeable transportation
improvements.
Horizon year is a year for which the
transportation plan describes the
envisioned transportation system
according to § 5 1.404.
Hot-spot analysis is an estimation of
likely future localized CO and PM 10
pollutant concentrations and a
comparison of those concentrations to
the national ambient air quality
standards. Pollutant concentrations to
be estimated should be based on the
total emissions burden which may
result from the implementation of a
single, specific project, summed
together with future background
concentrations (which can be estimated
using the ratio of future to current traffic
multiplied by the ratio of future to
current emission factors) expected in
the area. The total concentration must
be estimated and analyzed at
appropriate receptor locations in the
area substantially affected by the
project. Hot-spot analysis assesses
impacts on a scale smaller than the
entire nonattainment or maintenance
area, including, for example, congested
roadway intersections and highways or
transit terminals, and uses an air quality
dispersion model to determine the
effects of emissions on air quality.
Incomplete data area means any
ozone nonattainment area which EPA
has classified, in 40 CFR part 81, as an
incomplete data area.
Increase the frequency or severity
means to cause a location or region to
exceed a standard more often or to cause
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Federal Register / Vol. 58. No. 225 / Wednesday, November 24, 1993 / Rules and Regulations 62217
a violation at a greater concentration
than previously existed and/or would
otherwise exist during the future period
in question, if the project were not
implemented.
ISTEA means the Intermodal Surface
Transportation Efficiency Act of 1991.
Maintenance area means any
geographic region of the United States
previously designated nonattainmant
pursuant to the CAA Amendments of
1990 and subsequently redesignated to
attainment subject to the requirement to
develop a maintenance plan under
section 175A of the CAA. as amended.
Maintenance period with respect to a
pollutant or pollutant precursor means
that period of time beginning when a
State submits and EPA approves a
request under section 107(d) of the CAA
for redesignation tb an attainment area.
and lasting for 20 years, unless the
applicable implementation plan
specifies that the maintenance period
shall last for more than 20 years.
Metropolitan planning organization
(MPO) is that organization designated as
being responsible. together with the
State. for conducting the contihuing.
cooperative. and comprehensive
planning process under 23 U.S.C. 134
and 49 U.S.C. 1607. It is the Forum For
cooperative transportation decision-
making.
Milestone has the meaning given in
section 182(g)(1) and section 189(c) of
the CAA. A milestone consists of an
emissions level and the date on which
it is required to be achieved.
Motor vehicle emissions budget is that
portion of the total allowable emissions
defined in a revision to the applicable
implementation plan (or in an
implementation plan revision which
was endorsed by the Governor or his or
her designee, subject to a public
hearing, and submitted to EPA, but not
yet approved by EPA) for a certain date
for the purpose of meeting reasonable
Further progress milestones or
attainment or maintenance
demonstrations, for any criteria
pollutant or its precursors. allocated by
the applicable implementation plan to
highway and transit vehicles. The
applicable implementation plan for an
ozone nonattainment area may also
designate a motor vehicle emissions
budget for oxides of nitrogen (NO ) for
a reasonable further progress milestone
year if the applicable implementation
plan demonstrates that this NO 1 budget
will be achieved with measures in the
implementation plan (as an
implementation plan must do for VOC
milestone requirements). The applicable
implementation plan for an ozone
nonattainment area includes a NOx
budget if NOx reductions are being
substituted for reductions in volatile
organic compounds in milestone years
required for reasonable further progress.
National ambient air quality
standards (NAAQS) are those standards
established pursuant to section 109 of
the CAA.
NEPA means the National
Environmental Policy Act of 1969, as
amended (42 U.S.C. 4321 et seq).
NEPA process completion. for the
purposes of this subpart, with respect to
FHWA or FTA, means the point at
which there is a specific action to make
a determination that a project is
categorically excluded, to make a
Finding of No Significant Impact, or to
issue a record of decision on a Final
Environmental Impact Statement under
NEPA.
Nonattainment area moans any
geographic region of the United States
which has been designated as
nonattainment under § 107 of the CAA
for any pollutant for which a national
ambient air quality standard exists.
Not classified area means any carbon
monoxide nonattainment area which
EPA has not classified as either
moderate or serious.
Phase iof the interim period with
respect to a pollutant or pollutant
precursor means that period of time
after the effective date of this rule,
lasting until the earlier of the following:
(1) Submission to EPA of the relevant
control strategy implementation plan
revisions which have been endorsed by
the Governor (or his or her designee)
and have been subject to a public
hearing, or
(2) The date that the Clean Air Act
requires relevant control strategy
implementation plans to be submitted to
EPA, provided EPA has notified the
State, MPO, and DOT of the State’s
failure to submit any such plans. The
precise end of Phase II of the interim
period is defined in § 51.448.
Project means a highway project or
transit project.
Recipient of funds designated under
title 23 U.S.C. or the Federal Transit Act
means any agency at any level of State,
county, city. or regional government
that routinely receives title 23 U.S.C. or
Federal Transit Act funds to construct
FHWA/FI’A projects, operate FHWA/
FTA projects or equipment, purchase
equipment, or undertake other services
or operations via contracts or
agreements. This definition does not
include private landowners or
developers, or contractors or entities
that are only paid for services or
products created by their own
employees.
Regionally significant project means a
transportation project (other than an
exempt project) that is on a facility
which serves regional transportation
needs (such as access to and from the
area outside of the region, major activity
centers in the region, major planned
developments such as new retail malls,
sports complexes. etc.. or transportation
terminals as well as most terminals
themselves) and would normally be
included in the modeling of a
metropolitan area’s transportation
network, including at a minimum all
principal arterial highways and all fixed
guideway transit facilities that offer an
alternative to regional highway travel.
Rural transport ozone nonattainment
area means an ozone nonattainment
area that does not include, and is not
adjacent to. any part of a Metropolitan
Statistical Area or, where one exists, a
Consolidated Metropolitan Statistical
Area (as defined by the United States
Bureau of the Census) and is classified
under Clean Air Act section 182(h) as a
rural transport area.
Standard means a national ambient
air quality standard.
Submarginal area means any ozone
nonattainment area which EPA has
classified as submarginal in 40 CFR part
81. -
Transit is mass transportation by bus,
rail, or other conveyance which
provides general or special service to
the public on a regular and continuing
basis. It does not include school buses
or charter or sightseeing services.
Transit project is an undertaking to
implement or modify a transit facility or
transit.related program; purchase transit
vehicles or equipment; or provide
financial assistance for transit
operations. It does not include actions
that are solely within the jurisdiction of
local transit agencies, such as changes
in routes, schedules, or fares. It may
consist of several phases. For analytical
purposes, it must be defined inclusively
enough to:
(1) Connect logical termini and be of
sufficient length to address
environmental matters on a broad scope;
(2) Have independent utility or
independent significance. i.e., be a
reasonable expenditure even if no
additional transportation improvements
in the area are made; and
(3) Not restrict consideration of
alternatives for other reasonably
foreseeable transportation
improvements.
Transitional area means any ozone
nonattainment area which EPA has
classified as transitional in 40 CFR part
81.
Transitional period with respect to a
pollutant or pollutant precursor means
that period of time which begins after
submission to EPA of the relevant
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62218 Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations
control strategy implementation plan
which has been endorsed by the
Governor (or his or her designee) and
has been subject to a public hearing.
The transitional period lasts until EPA
takes final approval or disapproval
action on the control strategy
implementation plan submission or
finds it to be incomplete. The precise
beginning and end of the transitional
period is defined in § 51.448.
Transportation control measure
(TCM) is any measure that is specifically
identified and committed to in the
applicable implementation plan that is
either one of the types listed in § 108 of
the CAA, or any other measure for the
purpose of reducing emissions or
concentrations of air pollutants from
transportation sources by reducing
vehicle use or changing traffic flow or
congestion con ons. Notwithstanding
the above, vehicle technology-based,
fuel-based, and maintenance-based
measures which control the emissions
from vehicles under fixed traffic
conditions are not TCMs for the
purposes of this subpart.
Transportation improvement program
(TIP) means a staged, multiyear,
intermodal program of transportation
projects covering a metropolitan
planning area which is consistent with
the metropolitan transportation plan,
and developed pursuant to 23 CFR part
450.
Transportation plan means the
official intermodal metropolitan
transportation plan that is developed
through the metropolitan planning
process for the metropolitan planning
area, developed pursuant to 23 CFR part
450.
Transportation project is a highway
project or a transit project.
§ 51.394 AppilcablIlly.
(a) Action applicability. (1) Except as
provided for in paragraph (c) of this
section or § 5 1.460. conformity
determinations are required for:
(I) The adoption, acceptance, approval
or support of transportation plans
ueveloped pursuant to 23 CFR part 450
or 49 CFR part 613 by an MPO or DOT;
(ii) The adoption, acceptance,
approval or support of TIPs developed
pursuant to 23 CFR part 450 or 49 CFR
part 613 by an MPO or DOT; and
(iii) The approval, funding, or
implementation of FHWA/FTA projects.
(2) Conformity determinations are not
required under this rule for individual
projects which are not FHWA/P1 A
projects. However, § 51.450 applies to
such proiects if they are regionally
significant.
(b) Geographic applicability. (1) The
provisions of this subpart shall apply in
all nonattainment and maintenance
areas for transportation-related criteria
pollutants for which the area is
designated nonattainment or has a
maintenance plan.
(2) The provisions of this subpart
apply with respect to emissions of the
following criteria pollutants: ozone,
carbon monoxide, nitrogen dioxide, and
particles with an aerodynamic diameter
less than or equal to a nominal 10
micrometers (PM,,)).
(3) The provisions of this subpart
apply with respect to emissions of the
following precursor pollutants:
(i) Volatile organic compounds and
nitrogen oxides in ozone areas (unless
the Administrator determines under
section 182(fl of the CAA that additional
reductions of NO would not contribute
to attainment);
(ii) Nitrogen oxides in nitrogen
dioxide areas; and
(iii) Volatile organic compounds,
nitrogen oxides, and PM,,, in PM, 0 areas
if:
(A) During the interim period, the
EPA Regional Administrator or the
director of the State air agency has made
a finding that transportation-related
precursor emissions within the
nonattainment area are a significant
contributor to the PM, 0 nonattainment
problem and has so notified the MPO
and DOT; or
(B) During the transitional, control
strategy, and maintenance periods, the
applicable implementation plan (or
implementation plan submission)
establishes a budget for such emissions
as part of the reasonable further
progress, attainMent or maintenance
strategy.
(c) Limitations. (1) Projects subject to
this regulation for which the NEPA
process and a conformity determination
have been completed by FHWA or FTA
may proceed toward implementation
without further conformity
determinations if one of the following
major steps has occurred within the past
three years: NEPA process completion;
start of final design; acquisition of a
significant portion of the right-of-way;
or approval of the plans, specifications
and estimates. All phases of such
projects which were considered in the
conformity determination are also
included, if those phases were for the
purpose of funding, final design, right-
of-way acquisition, construction, or any
combination of these phases.
(2) A new conformity determination
for the project will be required if there
is a significant change in project design
concept and scope, if a supplemental
environmental document for air quality
purposes is initiated, or if no major
steps to advance the project have
occurred within the past three years.
§ 51.396 lmplementatlon plan revision.
(a) States with areas subject to this
rule must submit to the EPA and DOT
a revision to their implementation plan
which contains criteria and procedures
for DOT. MPOs and other State or local
agencies to assess the conformity of
transportation plans, programs, and
projects, consistent with these
regulations. This revision is to be
submitted by November 25, 1994 (or
within 12 months of an area’s
redesignation from attainment to
nonattainment, if the State has not
previously submitted such a revision).
EPA will provide DOT with a 30-day
comment period before taking action to
approve or disapprove the submission.
A State’s conformity provisions may
contain criteria and procedures more
stringent than the requirements
described in these regulations only if
the State’s conformity provisions apply
equally to non.federal as well as Federal
entities.
(b) The Federal conformity rules
under this subpart and 40 CFR part 93,
in addition to any existing applicable
State requirements, establish the
conformity criteria and procedures
necessary to meet the requirements of
Clean Air Act section 176(c) until such
time as the required conformity
implementation plan revision is
approved by EPA. Following EPA
approval of the State conformity
provisions (or a portion thereof) in a
revision to the applicable
implementation plan, the approved (or
approved portion of the) State criteria
and procedures would govern
conformity determinations and the
Federal conformity regulations
contained in 40 CFR part 93 would
apply only for the portion, if any. of the
State’s conformity provisions that is not
approved by EPA. In addition, any
previously applicable implementation
plan requirements relating to conformity
remain enforceable until the State
revises its applicable implementation
plan to specifically remove them and
that revision is approved by EPA,
(c) To be approvable by EPA, the
implementation plan revision submitted
to EPA and DOT under this section shall
address all requirements of this subpart
in a manner which gives them full legal
effect. In particular, the revision shall
incorporate the provisions of the
following sections of this subpart in
verbatim form, except insofar as needed
to give effect to a stated intent in the
revision to establish criteria and
procedures more stringent than the
requirements stated in these sections:
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1993 I Rules and Regulations 62219
51.392, 51.394. 51.398, 51.400,
51.404, 51.410, 51.412. 51.414. 51.416.
51.418. 51.420, 51.422. 51.424, 51.426.
51.428, 51.430, 51.432, 51.434, 51.436.
51.438. 51.440, 51.442. 51.444. 51.446.
51.448, 51.450, 51.460, and 51.462.
§ 51 .398 PrIority.
When assisting or approving any
action with air quality-related
consequences. FHWA and FTA shall
give priority to the implementation of
those transportation portions of an
applicable implemei:itation plan
prepared to attain and maintain the
NAAQS. This priority shall be
consistent with statutory requirements
for allocation of funds among States or
other jurisdictions.
§ 51.400 Frequency of conformity
determinations.
(a) Conformity determinations and
conformity redeterminations for
transportation plans, TIPs, and FHWA/
FTA projects must be made according to
the requirements of this section and the
applicable implementation plan.
(b) Transportation plans. (i) Each
new transportation plan must be found
to conform before the transportation
plan is approved by the MPO or
accepted by DOT.
(2) All transportation plan revisions
must be found to conform before the
transportation plan revisions are
approved by MPO or accepted by DOT,
unless the revision merely adds or
deletes exempt projects listed in
§ 51.460. The conformity determination
must be based on the transportation
plan and the revision taken as a whole.
(3) Conformity of existing
transportation plans must be
redeterinined..within 18 months of the
following, or the existing conformity
determination will lapse:
(i) November 24, 1993;
(ii) EPA approval of an
implementation plan revision which:
(A) Establishes or revises a
transportation-related emissions budget
(as required by CAA sections 175A(a),
182(b)(1), 182(c)(2)(A), 182(cli2)(B),
187(a)(7). 189(a)(1)(B), and 189(b)(1)(A);
and sections 192(a) and 192(b), for
nitrogen dioxide); or
(B) Adds, deletes, or changes ltMs;
and
(iii) EPA promulgation of an
implementation plan which establishes
or revises a transportation-related
emissions budget or adds, deletes, or
changes TCMs.
(4) In any case, conformity
determinations must be made no less
frequently than every three years, or the
existing conformity determination will
lapse.
(c) Transportation improvement
programs. (1) A new TIP must be found
to conform before the liP is approved
by the MPO or accepted by DOT.
(2) A TIP amendment requires a new
conformity determination for the entire
TIP before the amendment is approved
by the MPO or accepted by DOT, unless
the amendment merely adds or deletes
exempt projects listed in § 51.460.
(3) After an MPO adopts a new or
revised transportation plan. conformity
must be redetermined by the MPO and
DOT within six months from the date of
adoption of the plan, unless the new or
revised plan merely adds or deletes
exempt projects listed in § 51.460.
Otherwise, the existing conformity
determination for the TIP will lapse.
(4) In any case, conformity
determinations must be made no less
frequently than every three years or the
existing conformity determination will
lapse.
1 d) Projects. FHWA/VrA projects
must be found to conform before they
are adopted, accepted, approved, or
funded. Conformity must be
redetermined for any FHWA/FTA
project if none of the following major
steps has occurred within the past three
years: NEPA process completion; start of
final design; acquisition of a significant
portion of the right-of-way; or approval
of the plans, specifications and
estimates.
§ 51.402 ConsultatIon.
(a) General. The implementation plan
revision required under § 51.396 shall
include procedures for interagency
consultation (Federal, State, and local)
and resolution of conflicts..
(1) The implementation plan revision
shall include procedures to be
undertaken by MPOs. State departments
of transportation, and DOT with State
and local air quality agencies and EPA
before making conformity
determinations, and by State and local
air agencies and EPA with MPOs, State
departments of transportation, and DOT
in developing applicable
implementation plans.
[ 2) Before the implementation plan
revision is approved by EPA, MPOs and
State departments of transportation
before making conformity
determinations must provide reasonable
opportunity for consultation with State
air agencies, local air quality and
transportation agencies. DOT, and EPA,
including consultation on the issues
described in paragraph (c)(1) of this
section.
(b) Interagency consultation
procedures: Generolfactors. (1) States
shall provide in the implementation
plan well-defined consultation
procedures whereby representatives of
the MPOs, State and local air quality
planning agencies, State and local
transportation agencies, and other
organizations with responsibilities for
developing, submitting, or
implementing provisions of an
implementation plan required by the
CAA must consult with each other and
with local or regional offices of EPA,
FHWA, and FTA on the development of
the implementation plan, the
transportation plan, the TIP, and
associated conformity determinations.
(2) Interagency consultation
procedures shall include at a minimum
the general factors listed below and the
specific processes in paragraph (C) of
this section:
(i) The roles and responsibilities
assigned to each agency at each stage in
the implementation plan development
process and the transportation planning
process, including technical meetings;
(ii) The organizational level of regular
consultation;
(iii) A process for circulating (or
providing ready access to) draft
documents and supporting materials for
comment before formal adoption or
publication;
(iv) The frequency of, or process for
convening, consultation meetings and
responsibilities for establishing meeting
agendas;
(v) A process for responding to the
significant comments of involved
agencies; and
(vi) A process for the development of
a list of the TCMs which are in the
applicable implementation plan.
(c) Interagency consultation
procedures: Specific processes.
Interagency consultation procedures
shall also include the following specific
processes:
(1) A process involving the MPO,
State and local air quality planning
agencies. State and local transportation
agencies, EPA, and DOT for the
following:
(i) Evaluating and choosing a model
(or models) and associated methods and
assumptions to be used in hot-spot
analyses and regional emissions
analyses;
(ii) Determining which minor arterials
and other transportation projects should
be considered “regionally significant”
for the purposes of regional emissions
analysis (in addition to those
functionally classified as principal
arterial or higher or fixed guideway
systems or extensions that offer an
alternative to regional highway travel).
and which prolects should be
considered to have a significant change
in design concept and scope from the
transportation plan or TIP;
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62220 Federal Register / Vol. 58, No. 225 / Wednesday, November 24,
1993 I Rules and Regulations
(iii) Evaluating whether projects
otherwise exempted from meeting the
requirements of this subpart (see
§ 51.460 and 51.462) should be treated
as non-exempt in cases where potential
adverse emissions impacts may exist for
any reason;
(iv) Making a determination, as
required by § 51.418(c)(1), whether past
obstacles to implementation of TcMs
which are behind the schedule
established in the applicable
implementation plan have been
identified and are being overcome, and
whether State and local agencies with
influence over approvals or funding for
TCMs are giving maximum priority to
approval or funding for TCMs. This
process shall also consider whether
delays in TCM implementation
necessitate revisions to the applicable
implementation plan to remove TCMs
or substitute TCMs or other emission
reduction measures;
(v) Identifying, as required by
§ 51.454(d), projects located at sites in
PM 10 nonattainnient areas which have
vehicle and roadway emission and
dispersion characteristics which are
essentially identical to those at sites
which have violations verified by
monitoring, and therefore require
quantitative PM,o hot-spot analysis; and
(vi) Notification of transportation plan
or TIP revisions or amendments which
merely add or delete exempt projects
listed in §51460.
(2) A process Involving the MPO and
State and local air quality planning
agencies and transportation agencies for
the followin :
(i) Evaluating events which will
trigger new conformity determinations
in addition to those triggering events
established in § 51.400; and
(Ii) Consulting on emissions analysis
for transportation activities which cross
the borders of MPOs or nonattainment
areas or air basins.
(3) Where the metropolitan planning
area does not include the entire
nonattainment or maintenance area, a
process involving the MPO and the
State department of transportation for
cooperative planning and analysis for
purposes of determining conformity of
all projects outside the metropolitan
area and within the nonattainment or
maintenance area.
(4) A process to ensure that plans for
construction of regionally significant
projects which are not FHWA/F A
projects (including projects for which
alternative locations, design concept
and scope, or the no-build option are
still being considered), including those
by recipients of funds designated under
title 23 U.S.C. or the Federal Transit
Act, are disclosed to the MPO on a
regular basis, and to ensure that any
changes to those plans are immediately
disclosed;
(5) A process involving the MPO and
other recipients of funds designated
under title 23 U.S.C. or the Federal
Transit Ad for assuming the location
and design concept and scope of
projects which are disclosed to the MPO
as required by paragraph (c)(4) of this
section but whose sponsors have not yet
decided these features, in sufficient
detail to perform the regional emissions
analysis according to the requirements
of § 51.452.
(6) A process for consulting on the
design, schedule, and funding of
research and data collection efforts and
regional transportation model
development by the MPG (e.g..
household/travel transportation
surveys).
(7) A process (including Federal
agencies) for providing final documents
(including applicable implementation
plans and implementation plan
revisions) and supporting information to
each agency after approval or adoption.
(d) Resolving conflicts. Conflicts
among State agencies or between State
agencies and an MPO shall be escalated
to the Governor if they cannot be
resolved by the heads of the involved
agencies. The Stats air agency has 14
calendar days to appeal to the Governor
after the State DOT or MPO has notified
the State air agency head of the
resolution of his or her comments. The
implementation plan revision required
by § 5 1.396 shall define the procedures
for starting of the 14-day clock. If the
State air agency appeals to the
Governor, the final conformity
determination must have the
concurrence of the Governor. If the State
air agency does not appeal to the
Governor within 14 days, the MPO or
State department of transportation may
proceed with the final conformity
determination. The Governor may
delegate his or her role In this process,
but not to the head or staff of the State
or local air agency, State department of
transportation. State transportation
commission or board, or an MPO.
(e) Public consultation pmcedures.
Affected agencies making conformity
determinations on transportation plans,
programs, and projects shall establish a
proactive public involvement process
which provides opportunity for public
review and comment prior to taking
formal action on a conformity
determination for all transportation
plans and TIPs, consistent with the
requirements of 23 CFR part 450. In
addition, these agencies must
specifically address in writing all public
comments that known plans for a
regionally significant project which is
not receiving FHWA or FTA funding or
approval have not been properly
reflected in the emissions analysis
supporting a proposed conformity
finding for a transportation plan or TIP.
These agencies shall also provide
opportunity for public involvement in
conformity determinations for projects
where otherwise required by law.
§ 51.404 Content of transportation plans.
(a) Transportation plans adopted after
January 1, 1995 in serious, severe, or
extreme ozone nonattairiment areas and
in serious carbon monoxide
nonattainment areas. The transportation
plan must specifically describe the
transportation system envisioned for
certain future years which shall be
called horizon years.
(1) The agency or organization
developing the transportation plan may
choose any years to be horizon years,
subject to the following restrictions:
(i) Horizon years may be no more than
10 years apart.
(ii) The first horizon year may be no
more than 10 years from the base year
used to validate the transportation
demand planning model.
(iii) If the attainment year is in the
time span of the transportation plan, the
attainment year must be a horizon year.
(iv) The last horizon year must be the
last year of the transportation plan’s
forecast period.
(2) For these horizon years:
(i) The transportation plan shall
quantify and document the
demographic and employment factors
influencing expected transportation
demand, including land use forecasts, in
accordance with implementation plan
provisions and § 5 1.402;
(ii) The highway and transit system
shall be described in terms of the
regionally significant additions or
modifications to the existing
transportation network which the
transportation plan envisions to be
operational in the horizon years.
Additions and modifications to the
highway network shall be sufficiently
identified to indicate intersections with
existing regionally significant facilities,
and to determine their effect on route
options between transportation analysis
zones. Each added or modified highway
segment shall also be sufficiently
identified in terms of its design concept
and design scope to allow modeling of
travel times under various traffic
volumes, consistent with the modeling
methods for area-wide transportation
analysis in use by the MPG. Transit
facilities, equipment, and services
envisioned for the future shall be
identified in terms of design concept,
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Federal Register I Vol. 58. No. 225 / Wednesday. November 24, 1993 1 Rules and Regulations 62221
design scope, and operating policies
sufficiently to allow modeling of their
transit ridership. The description of
additions and modifications to the
transportation network shall also be
sufficiently specific to show that there
is a reasonable relationship between
expected land use and the envisioned
transportation system; and
(iii) Other future transportation
policies, requirements, services, and
activities, including intermodal
activities, shall be described.
(b) Moderate areas reclassified to
serious. Ozone or CO nonattainment
areas which are reclassified from
moderate to serious must meet the
requirements of paragraph (a) of this
section within two years from the date
of reclassification.
(C) Transportation plans for other
areas. Transportation plans for other
areas must meet the requirements of
paragraph (a) of this section at least to
the extent it has been the previous
practice of the MPO to prepare plans
which meet those requirements.
Otherwise, transportation plans must
describe the transportation system
envisioned for the future specifically
enough to allow determination of
conformity according to the criteria and
procedures of 51.41O through 51.446.
(di Savings. The requirements of this
section supplement other requirements
of applicable law or regulation
governing the format or content of
transportation plans.
§ 51.406 Relatlenship of transportatIon
plan and TIP conformity with the NEPA
process.
The degree of specificity required in
the transportation plan and the specific
tra’vel network assumed for air quality
modeling do not preclude the
consideration of alternatives in the
NEPA process or other project
development studies. Should the NEPA
process result in a project with design
concept and scope significantly
different from that in the transportation
plan or TIP, the project must meet the
criteria in § 51.410 through 5 1.446 for
projects not from a TIP before NEPA
process completion.
§ 51 .408 FIscal constraints for
transportation plans and TIPs
Transportation plans and TIPs must
be fiscally constrained consistent with
DOT’s metropolitan planning
regulations at 23 CFR part 450 in order
to be found in conformity.
§ 51 .410 CrIteria and procedures for
determinIng conformity of transportation
plans, programs, and projects: General.
(a) In order to be found to conform,
each transportation plan, program, and
FHWA/FTA project must satisfy the
applicable criteria and procedures in
§S 51.412 through 51.446 as listed in
Table I in paragraph (b) of this section,
and must comply with all applicable
conformity requirements of
implementation plans and of court
orders for the area which pertain
specifically to conformity determination
requirements. The criteria for making
conformity determinations differ based
on the action under review
(transportation plans, liPs, and FHWA/
FTA projects), the time period in which
the conformity determination is made.
and the relevant pollutant.
(b) The following table indicates the
criteria and procedures in §g51.412
through 51.446 which apply for each
action in each time period.
TABLE 1 .—CONF0RMITY CRITERIA
Action Cntena
All Periods
Transportation Plan ...
TIP
Project (From a con-
forming plan and
TIP).
Project (Not from a
conforming plan
and TIP).
§g51.412. 51 .414,
51 .416. 51 .418(b).
§ 51.412, 51 .414.
51.416, 51.418(c).
§g 51 .412, 51 .414,
51 .416, 51.420,
51.422. 51 .424,
51.426.
§ 51 .412, 51 .414,
51.416, 51.418(d),
51.420. 51.424,
51.426.
Phase II of the
Interim Period
Transportation Plan ...
TIP
Project (From a con-
forming plan and
TIP).
Project (Not from a
conForming plan
and liP).
§ 51.436. 51 .442.
§g51.438, 51 .444.
§51 434.
§51.434, 51 .440,
51.446.
TransitIonal Period
Transportation Plan ...
TIP
Project (From a con-
forming plan and
TIP).
Project (Not from a
conforming plan
and liP).
§ 51.428. 51.436.
51.442.
§51.430. 51.438,
51.444.
§51.434.
§ 51.432, 51.434,
51.440, 51.446.
Control Strategy and Maintenance Periods
Transportation Plan
TIP
Project (From a con-
forming plan and
TIP).
Action
Cntena
Project (Not from a
§51.432.
conforming plan
and TIP).
51.412 The conformity determination must
be based on the latest planning
assumptions.
51.414 The conformity determination must
be based on the latest emission
estimation model available.
51.4 16 The MPO must make the conformity
determination according to the
consultation procedures of this rule and
the implementation plan revision
required by §51.396.
51.4 18 The transportation plan. TIP, or
FHWA/FTA proiect which is not from a
conforming plan and TIP must provide
for the timely implementation of TCMs
from the applicable implementation
plan.
51.420 There must be a currently
conforming transportation plan and
currently conforming TIP at the time of
project approval.
51.422 The project must come from a
conforming transportation plan and
program.
51.424 The FIJWA/FI’A project must not
cause or contribute to any new localized
O or PM 10 violations or increase the
frequency or severity of any existing CO
or PM, 0 violations in CO and PM 10
nonattainment and maintenance areas.
51.426 The FHWA/FTA project must
comply with PM control measures in
the applicable implementation plan.
51.428 The transportation plan must be
consistent with the motor vehicle
emissions budget(s) in the applicable
implementation plan or implementation
plan submission.
51.430 The TIP must be consistent with the
motor vehicle emissions budget(s) in the
applicable implementation plan or
implementation plan submission.
51.43 2 The project which Is not from a
conforming transportation plan and
conforming TIP must be consistent with
the motor vehicle emissions budget(s) in
the applicable implementation plan or
implementation plan submission.
51.434 The FHWA/FTA project must
eliminate or reduce the severity and
number of localized CO violations in the
area substantially affected by the project
(in CO nonattainment areas).
51.436 The transportation plan must
contribute to emissions reductions in
ozone and CO nonattainment areas.
51.438 The TIP must contribute to
emissions reductions In ozone and CO
nonattainment areas.
51.440 The project which is not from a
conforming transportation plan and TIP
must contribute to emissions reductions
in ozone and CO nonattainment areas.
TABLE 1.—CONFORMITY CRITERIA—
Continued
§ 51.428.
§51.430.
No additional criteria.
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62222 Federal Register / Vol. 58, No 225 I Wednesday, November 24, 1993 / Rules and Regulations
51.442 The transportation plan must
contribute to emission reductions or
must not Increase emissions In PM 10 and
NO 2 nonattainment areas.
51.444 The TIP must contribute to emission
reductions or must not Increase
emissions in PM, 0 and NO 2
nonattainment areas.
51.446 The project which Is not From a
conforming transportation plan end TIP
must contribute to emission reductions
or must not increase emissions in PM ,o
and NO 2 nonattainment areas.
§51.412 CriterIa and procedures: Latest
planning assumptions.
(a) The conformity determination,
with respect to all other applicable
criteria in § 51.414 through 51.4 46.
must be based upon the most recent
planning assumptions in force at the
time of the conformity determination.
This criterion applies during all periods.
The conformity determination must
satisfy the requirements of paragraphs
(b) through (I) of this section.
(b) Assumptions must be derived from
the estimates of current and future
population, employment, travel, and
congestion most recently developed by
the MPO or other agency authorized to
make such estimates and approved by
the MPO. The conformity determination
must also be based on the latest
assumptions about current and future
background concentrations.
(c) The conformity determination for
each transportation plan and TIP must
discuss how transit operating policies
(including fares and service levels) and
assumed transit ridership have changed
since the previous conformity
determination.
(d) The conformity determination
must include reasonable assumptions
about transit service and increases in
transit fares and road and bridge tolls
over time.
(e) The conformity determination
must use the latest existing information
regarding the effectiveness of the TcMs
which have already been implemented.
(f) Key assumptions shall be specified
and included in the draft documents
and supporting materials used for the
interagency and public consultation
required by § 5 1.402.
§51.414 CriterIa and procedures: Latest
emissions model.
(a) The conformity determination
must be based on the latest emission
estimation model available. This
criterion applies during all periods. It is
satisfied if the most current version of
the, motor vehicle emissions model
specified by EPA for use in the
pieparation or revision of
implementation plans in that State or
area is used for the conformity analysis.
Where EMFAC is the motor vehicle
emissions model used in preparing or
revising the applicable implementation
plan, new versions must be approved by
EPA before they are used in the
conformity analysis.
(b) EPA will consult with DOT to
establish a grace period following the
specification of any new model.
(1) The grace period will be no less
than three months and no more than 24
months after notice of availability is
published in the Federal Register.
(2) The length of the grace period will
depend on the degree of change in the
model and the scope of re.planning
likely to be necessary by MPOs in order
to assure conformity. If the grace period
will be longer than three months, EPA
will announce the appropriate grace
period in the Federal Register.
Ic) Conformity analyses for which the
emissions analysis was begun during
the grace period or before the Federal
Register notice of availability of the
latest emission model may Continue to
use the previous version of the model
for transportation plans and TIPs. The
previous model may also be used for
projects if the analysis was begun
during the grace period or before the
Federal Register notice of availability.
provided no more than three years have
passed since the draft environmental
document was issued.
§ 51 .416 Criteria and procedures:
Consultation.
The MPO must make the conformity
determination according to the
consultation procedures in this rule and
in the Implementation plan revision
required by § 51.396. and according to
the public involvement procedures
established by the MPO in compliance
with 23 CFR part 450. This criterion
applies during all periods. Until the
implementation plan revision required
by § 51.396 is approved by EPA. the
conformity determination must be made
according to the procedures in
§ 51.402(a)(2) and 51.402(e). Once the
implementation plan revision has been
approved by EPA. this criterion is
satisfied if the conformity determination
is made consistent with the
implementation plan’s consultation
requirements.
§ 51 .418 Criteria and procedures: Timely
Implementation of TCMs.
(a) The transportation plan. TIP, or
FHWA/FTA project which is not from a
conforming plan and TIP must provide
for the timely implementation of TCMs
from the applicable implementation
plan. This criterion applies during all
periods.
(b) For transportation plans, this
criterion is satisfied if the following two
conditions are met:
(1) The transportation plan, in
describing the envisioned future
transportation system, provides for the
timely completion or implementation of
all TcMs in the applicable
implementation plan which are eligible
for funding under title 23 U.S.C. or the
Federal Transit Act, consistent with
schedules included in the applicable
implementation plan.
(2) Nothing in the transportation plan
jnterferes with the implementation of
any TCM in the applicable
implementation plan.
Ic) For TIPs, this criterion is satisfied
if the following conditions are met:
(1) An examination of the specific
steps and funding source(s) needed to
fully implement each TCM indicates
that TCMs which are eligible for
funding under title 23 U.s.c. or the
Federal Transit Act are on or ahead of
the schedule established in the
applicable implementation plan, or, if
such TcMs are behind the schedule
established in the applicable
implementation plan, the MPO and
DOT have determined that past
obstacles to implementation of the
TCMs have been identified and havu
been or are being overcome, and that all
State and local agencies with influence
over approvals or funding for TcMs are
giving maximum priority to approval co
funding of TCMs over other projects
within their control, including projects
in locations outside the nonattainment
or maintenance area.
(2) II TcMs in the applicable
implementation plan have previousiy
been programmed for Federal funding
but the funds have not been obligated
and the TcMs are behind the schedule
in the implementation plan. then the
TIP cannot be found to conform if the
funds intended for those TCMs are
reallocated to projects in the TIP other
than TCMs, or ii there are no other -
TCMS in the TIP, if the funds are
reallocated to projects in the TIP other
than projects which are eligible for
Federal funding under ISTEA’s
Congestion Mitigation and Air Quality
Improvement Program.
(3) Nothing in the TIP may interfere
with the implementation of any T M in
the applicable implementation plan.
(d) For FHWA/FTA projects which
are not from a conforming
transportation plan and TIP, this
criterion is satisfied if the project does
not interfere with the implementation of
any TCM in the applicable
implementation plan.
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Federal Register I Vol. 58, No. 225 / Wednesday, November 24, 1993 I Rules and Regulations 62223
§ 51.420 CrIteria and procedures:
Currently conforming transportation plan
and TIP.
There must be a currently conforming
transportation plan and currently
conforming TIP at the time of project
approval. This criterion applies during
all periods. It is satisfied if the current
transportation plan and liP have been
found to conform to the applicable
implementation plan by the MPO and
DOT according to the procedures of this
subpart. Only one conforming
transportation plan or TIP may exist In
an area at any time; conformity
determinations of a previous
transportation plan or TIP expire once
the current plan or TIP is found to
conform by DOT. The conformity
determination on a transportation plan
or TIP will also lapse if conformity is
not determined according to the
frequency requirements of § 51.400.
§ 51.422 CriterIa and procedures: Projects
from a plan and TIP.
(a) The project must come from a
conforming plan and program. This
criterion applies during all periods. If
this criterion is not satisfied, the project
must satisfy all criteria in Table I for a
project not from a conforming
transportation plan and TIP. A project is
considered to be from a conforming
transportation plan if it meets the
requirements of paragraph (b) of this
section and from a conforming program
if it meets the requirements of paragraph
(c) of this section.
(b) A project is considered to be from
a conforming transportation plan if one
of the following conditions applies;
(1) For projects which are required to
be identified in the transportation plan
in order to satisfy § 5 1.404, the project
is specifically included in the
conforming transportation plan and the
project’s design concept and scope have
not changed significantly from those
which were described in the
transportation plan, or in a manner
which would significantly impact use of
th ’facility; or
2) For projects which are not
required to be specifically identified in
the transportation plan, the project is
identified in the conforming
transportation plan, or is consistent
with the policies and purpose of the
transportation plan and will not
interfere with other projects specifically
included in the transportation plan.
(c) A project is considered to be from
a conforming program if the following
conditions are met:
(1) The project is included in the
conforming TIP and the design concept
and scope of the project were adequate
at the time of the TIP conformity
determination to determine Its
contribution to the TIP’s regional
emissions and have not changed
significantly from those which were
described in the TIP, or In a manner
which would significantly impact use of
the facility; and
(2) If the TIP describes a project
design concept and scope which
includes project-level emissions
mitigation or control measures, written
commitments to implement such
measures must be obtained from the
project sponsor and/or operator as
required by § 51.458(a) in order for the
project to be considered from a
conforming program. Any change in
these mitigation or control measures
that would significantly reduce their
effectiveness constitutes a change in the
design concept and scope of the project.
§ 51.424 CrIteria and procedures:
Localized CO and PMo violations (hot
spots).
(a) The FHWAJFTA project must not
cause or contribute to any new localized
CO or PM 10 violations or increase the
frequency or severity of any existing CO
or PM 10 violations in CO and PM , o
nonattainment and maintenance areas.
This criterion applies during all periods.
This criterion is satisfied if it Is
demonstrated that no new local
violations will be created and the
severity or number of existing violations
will not be increased as a result of the
project.
(b) The demonstration must be
performed according to the
requirements of § 51.402(c)(1)(i) and
51.454.
Cc) For projects which are not of the
type identified by § 5 1.454(a) or
§ 51.454(d), this criterion may be
satisfied if consideration of local factors
clearly demonstrates that no local
violations presently exist and no new
local violations will be created as a
result of the project. Otherwise, in CO
nonattainment and maintenance areas, a
quantitative demonstration must be
performed according to the
requirements of § 51.454(b).
§ 51.426 CrIteria and procedures:
Compliance wIth PM, 0 control measures.
The FHWA/FrA project must comply
with PM 10 control measures in the
applicable implementation plan. This
criterion applies during all periods. It Is
satisfied if control measures (for the
purpose of limiting PM 10 emissions
from the construction activities and/or
normal use and operation associated
with the project) contained in the
applicable implementation plan are
included In the final plans.
specifications, and estimates for the
project.
§ 51 .428 CrIteria and procedures: Motor
vehicle emIssions budget (transportation
plan).
(a) The transportation plan must be
consistent with the motor vehicle
emissions budget(s) in the applicable
Implementation plan (or
implementation plan submission). This
criterion applies during the transitional
period and the control strategy and
maintenance periods, except as
provided In § 51.464. This criterion may
be satisfied if the requirements in
paragraphs (b)and (c) of this section are
met: (b) A regional emissions analysis
shall be performed as follows:
(1) The regional analysis shall
estimate emissions of any of the
following pollutants and pollutant
precursors for which the area is in
nonattainment or maintenance and for
which the applicable Implementation
plan (or implementation plan
submission) establishes an emissions
budget:
(i) VOC as an ozone precursor;
(ii) NO, as an ozone precursor, unless
the Administrator determines that
additional reductions of NO, would not
contribute to attainment;
(iii) CO;
(iv) PM 10 (and its precursors VOC
and/or NO If the applicable
implementation plan or implementation
plan submission Identifies
transportation-related precursor
emissions within the nonattainment
area as a significant contributor to the
PM 10 nonattainment problem or
establishes a budget for such emissions);
or
(v) NO, (in NO 2 nonattainment or
maintenance areas);
(2) The regional emissions analysis
shall estimate emissions from the entire
transportation system, including all
regionally significant projects contained
in the transportation plan and all other
regionally significant highway and
transit projects expected in the
nonattainment or maintenance area in
the timeframe of the transportation plan;
(3) The emissions analysis
methodology shall meet the
requirements of § 5 1.452;
(4) For areas with a transportation
plan that meets the content
requirements of § 5 1.404(a), the
emissions analysis shall be performed
for each horizon year. Emissions in
milestone years which are between the
horizon years may be determined by
interpolation; and
(5) For areas with a transportation
plan that does not meet the cdntent
requirements of 51.404(a), the
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62224 Federal Register / Vol.58 . No. 225 / Wednesday. November 24, 1993 / Rules and Regulations
emissions analysis shall be performed
for any years in the time span of the
transportation plan provided they are
not more than ten years apart and
provided the analysis is performed for
the last year of the plan’s forecast
period. If the attainment year is in the
time span of the transportation plan, the
emissions analysis must also be
performed for the attainment year.
Emissions in milestone years which are
between these analysis years may be
determined by interpolation.
(c) The regional emissions analysis
shall demonstrate that for each of the
applicable pollutants or pollutant
precursors in paragraph (blil) of this
section the emissions are less than or
equal to the motor vehicle emissions
budget as established in the applicable
implementation plan or implementation
plan submission as follows:
(1) If the applicable implementation
plan or Implementation plan
submission establishes emissions
budgets for milestone years, emissions
in each milestone year are less than or
equal to the motor vehicle emissions
budget established for that year;
(2) For nonattainment areas,
emissions in the attainment year are less
than or equal to the motor vehicle
emissions budget established in the
applicable implementation plan or
implementation plan submission for
that year;
(3 For nonattainment areas,
emissions in each analysis or horizon
year after the attainment year are less
than or equal to the motor vehicle
emissions budget established by the
applicable implementation plan or
implementation plan submission for the
attainment year. If emissions budgets
are established for years after the
attainment year, emissions in each
analysis year or horizon year must be
less than or equal to the motor vehicle
emissions budget for that year, if any, or
the motor vehicle emissions budget for
the most recent budget year prior to the
analysis year or horizon year; and
(4) For maintenance areas, emissions
in each analysis or horizon year are less
than or equal to the motor vehicle
emissions budget established by the
maintenance plan for that year, if any,
or the emissions budget for the most
recent budget year prior to the analysis
or horizon year.
§51.430 Criterlaand procedures: Motor
vehicle emissions budget (TIP).
(a) The TIP must be consistent with
the motor vehicle emissions budget(s) in
the applicable implementation plan (or
implementation plan submission). This
criterion applies during the transitional
period and the control strategy and
maintenance periods, except as
provided in § 51.464. This criterion may
be satisfied if the requirements in
paragraphs (b) and (c) of this section are
met:
(b) For areas with a conforming
transportation plan that fully meets the
content requirements of 51.404(a), this
criterion may be satisfied without
additional regional analysis if:
(1) Each program year of the TIP is
consistent with the Federal funding
which may be reasonably expected for
that year. and required State/local
matching funds and funds for State!
local funding-only projects are
consistent with the revenue sources
expected over the same period; and
(2) The TIP is consistent with the
conforming transportation plan such
that the regional emissions analysis
already performed for the plan applies
to the TIP also. This requires a
demonstration that:
(i) The TIP contains all projects which
must be started in the TIP’s timeframe
In order to achieve the highway and
transit system envisioned by the
transportation plan in each of its
horizon years;
(ii) All TIP projects which are
regionally significant are part of the
specific highway or transit system
envisioned in the transportation plan’s
horizon years; and
(iii) The design concept and scope of
each regionally significant project in the
TIP is not significantly different from
that described in the transportation
plan.
(3) If the requirements in paragraphs
(b)(1) and (b)(2) of this section are not
met, then:
(I) The TIP may be modified to meet
those requirements; or
(ii) The transportation plan must be
revised so that the requirements in
paragraphs (b)(i) and (b)(2) of this
section are met. Once the revised plan
has been found to conform, this
criterion is met for the TIP with no
additional analysis except a
demonstration that the TIP meets the
requirements of paragraphs (b)(i) and
(b)(2) of this section.
(c) For areas with a transportation
plan that does not meet the content
requirements of § 51.404(a), a regional
emissions analysis must meet all of the
following req uirements:
(1) The regional emissions analysis
shall estimate emissions from the entire
transportation system, including all
projects contained in the proposed TIP,
the transportation plan, and all other
regionally significant highway and
transit projects expected in the
nônattainment or maintenance area in
the timeframe of the transportation plan;
(2) The analysis methodology shall
meet the requirements of § 51.452(c);
and
(3) The regional analysis shall satisfy
the requirements of § 51.428(b)(1),
5L428(b)(5), and 51.428(c).
§ 51.432 CrIteria and procedures: Motor
vehicle emissions budget (project not from
a plan and TIP).
(a) The project which is not from a
conforming transportation plan and a
conforming TIP must be consistent with
the motor vehicle emissions budget(s) in
the applicable implementation plan (or
implementation plan submission). This
criterion applies during the transitional
period and the control strategy and
maintenance periods, except as
provided in § 51.464. It is satisfied if
emissions from the implementation of
the project, when considered with the
emissions from the projects in the
conforming transportation plan and TIP
and all other regionally significant
projects expected in the area, do not
exceed the motor vehicle emissions
budget(s) in the applicable
implementation plan (or
implementation plan submission).
(b) For areas with a conforming
transportation plan that meets the
content requirements of § 5 1.404(a):
(1) This criterion may be satisfied
without additional regional analysis if
the project is included in the
conforming transportation plan, even if
it is not specifically included in the
latest conforming TIP. This requires a
demonstration that:
(i) Allocating funds to the project will
not delay the implementation of projects
in the transportation plan or TIP which
are necessary to achieve the highway
and transit system envisioned by the
transportation plan in each of its
horizon years;
(ii) The project is not regionally
significant or is part of the specific
highway or transit system envisioned in
the transportation plan’s horizon years;
and
(iii) The design concept and scope of
the project is not significantly different
from that described in the transportation
plan.
(2) If the requirements in paragraph
(b)(i) of this section are not met, a
regional emissions analysis must be
performed as follows:
(i) The analysis methodology shall
meet the requirements of § 51.452;
(ii) The analysis shall estimate
emissions from the transportation
system, including the proposed project
and all other regionally significani
projects expected in the nonattainment
or maintenance area in the timeframe of
the transportation plan. The analysis
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Federal Register I Vol. 58, No. 225 I Wednesday, November 24, 1993 / Rules and Regulations 62225
must include emissions from all
previously approved projects which
were not from a transportation plan and
TIP; and
(iii) The emissions analysis shall meet
the requirements of § 51.428(b)(1),
51.428(b)(4), and 51.428(c).
(c) For areas with a transportation
plan that does not meet the content
requirements ofg5l.404(a), a regional
emissions analysis must be performed
for the project together with the
conforming TIP and all other regionally
significant projects expected in the
nonattainment or maintenance area.
This criterion may be satisfied if:
(1) The analysis methodology meets
the requirements of § 51.452(c);
(2) The analysis estimates emissions
from the transportation system,
including the proposed project, and all
other regionally significant projects
expected in the nonattainment or
maintenance area in the timeframe of
the transportation plan; and
(3) The regional analysis satisfies the
requirements of § 51.428(bWl),
51.428(b)(5). and 51.428(c).
§ 51.434 CriterIa and procedures:
Localized CO violations (hot spots) in the
interim period.
(a) Each FHWA/FTA project must
eliminate or reduce the severity and
number of localized CO violations in the
area substantially affected by the project
(in CO nonattainment areas). This
criterion applies during the interim and
transitional periods only. This criterion
is satisfied with respect to existing
localized CO violations if it is
demonstrated that existing localized CO
violations will be eliminated or reduced
in severity and number as a result of the
project.
(b) The demonstration must be
performed according to the
requirements of § 51.402(c)(l)(i) and
51.454.
(c) For projects which are not of the
type identified by §51.454(a), this
criterion may be satisfied if
consideration of local factors clearly
demonstrates that existing CO violations
will be eliminated or reduced in
severity and number. Otherwise, a
quantitative demonstration must be
performed according to the
requirements of § 51.454(b).
§51.436 Crtterla’and procedures: Interim
period reductions In ozone and CO areas
(transportation plan).
(a) A transportation plan must
contribute to emissions reductions in
ozone and CO nonattainment areas. This
criterion applies during the interim and
transitional periods only, except as
otherwise provided in § 51.464. It
applies to the net effect on emissions of
all projects contained in a new or
revised transportation plan. This
criterion may be satisfied if a regional
emissions analysis is performed as
described in paragraphs (b) through (I)
of this section.
(b) Determine the analysis years for
which emissions are to be estimated.
Analysis years shall be no more than ten
years apart. The first analysis year shall
be no later than the first milestone year
(1995 in CO nonattainment areas and
1996 in ozone nonattainment areas).
The second analysis year shall be either
the attainment year for the area, or if the
attainment year is the same as the first
analysis year or earlier. the second
analysis year shall be at least five years
beyond the first analysis year. The last
year of the transportation plan’s forecast
period shall also be an analysis year.
(c) Define the ‘Baseline’ scenario for
each of the analysis years to be the
future transportation system that would
result from current programs, composed
of the following (except that projects
listed in § 51.460 and 51.462 need not
be explicitly considered):
(1) All in-place regionally significant
highway and transit facilities, ser 4 iices
and activities;
(2) All ongoing travel demand
management or transportation system
management activities; and
(3) Completion of all regionally
significant projects, regardless of
funding source, which are currently
under construction or are undergoing
right-of-way acquisition (except for
hardship acquisition and protective
buying); come from the first three years
of the previously conforming
transportation plan and/or TIP; or have
completed the NEPA process. (For the
first conformity determination on the
transportation plan after November 24,
1993. a project may not be included in
the “Baseline” scenario if one of the
following major steps has not occurred
within the past three years: NEPA
process completion; start of final design;
acquisition of a significant portion of
the right-of-way; or approval of the
plans, specifications and estimates.
Such a project must be included in the
“Action” scenario, as described in
paragraph (d) of this section.)
(d) Define the ‘Action’ scenario for
each of the analysis years as the
transportation system that will result in
that year from the implementation of the
proposed transportation plan. TIPs
adopted under it, and other expected
regionally significant projects in the
nonattainment area. It will include the
following (except that projects listed in
§ 51.460 and 51.462 need not be
explicitly considered):
(1) All facilities, services, and
activities in the ‘Baseline’ scenario;
(2) Completion of all TCMs and
regionally significant projects (including
facilities, services, and activities)
specifically identified in the proposed
transportation plan which will be
operational or in effect in the analysis
year, except that rogulatoij TCMs may
not be assumed to begin at a future time
unless the regulation is already adopted
by the enforcing jurisdiction or the 1CM
is identified In the applicable
implementation plan;
(3) All travel demand management
programs and transportation system
management activities known to the
MPO, but not included in the applicable
implementation plan or utilizing any
Federal funding or approval, which
have been fully adopted and/or funded
by the enforcing jurisdiction or
sponsoring agency since the last
conformity detprmination on the
transportation plan;
(4) The incremental effects of any
travel demand management programs
and transportation system management
activities known to the MPO, but not
included in the applicable
implementation plan or utilizing any
Federal funding or approval, which
were adopted and/or funded prior to the
date of the last conformity
determination on the transportation
plan, but which have been modified
since then to be more stringent or
effective;
(5) Completion of all expected
regionally significant highway and
transit projects which are not from a
conforming transportation plan and TIP;
and
(6) Completion of all expected
regionally significant non-FHWAIFTA
highway and transit projects that fiave
clear funding sources and commitments
leading toward their implementation
and completion by the analysis year.
(e) Estimate the emissions predicted
to result in each analysis year from
travel on the transportation systems
defined by the ‘Baseline’ and ‘Action’
scenarios and determine the difference
in regional VOC and NO. emissions
(unless the Administrator determines
that additional reductions of NO. would
not contribute to attainment) between
the two scenarios for ozone
nonattainment areas and the difference
in CO emissions between the two
scenarios for CO nonattainment areas.
The analysis must be performed for each
of the analysis years according to the
requirements of § 51.452. Emissions in
milestone years which are between the
analysis years may be determined by
interpolation.
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62226 Federal Register I Vol. 58. No. 225 / Wednesday, November 24. 1993 / Rules and Regulations
(f) This criterion is met If the regional
VOC and NO 1 emisslons (for ozone
nonattainment areas) and CO emissions
(for CO nonattainment areas) predicted
in the ‘Action’ scenario are less than the
emissions predicted from the ‘Baseline’
scenario in each analysis year, and if
this can reasonably be expected to be
true in the periods between the first
milestone year and the analysis years.
The regional analysis must show that
the ‘Action’ scenario contributes to a
reduction in emissions from the 1990
emissions by any nonzero amount.
§ 51.438 CriterIa end procedure.: Interim
period reductions In ozone and CO areas
(TIP).
(a) A TIP must contribute to emissions
reductions in ozone and CO
nonattainment areas. This criterion
applies during the interim and
transitional periods only, except as
otherwise provided In § 51.464. It
applies to the net effect on emissions of
all projects contained in a new or
revised TIP. This criterion may be
satisfied if a regional emissions analysis
is performed as described in paragraphs
(b) through (I) of this section.
(h) Determine the analysis years for
which emissions are to be estimated.
The first analysis year shall be no later
than the first milestone year (1995 in CO
nonattainment areas and 1996 In ozone
nonattainment areas). The analysis years
shall be no more than ten years apart.
The second analysis year shall be either
the attainment year for the area, or if the
attainment year is the seine as the first
analysis year or earlier, the second
analysis year shall be at least five years
beyond the first analysis year. The last
year of the transportation plan’s forecast
period shall also be an analysis year.
(c) Define the ‘Baseline’ scenario as
the future transportation system that
would result from current programs.
composed of the following (except that
projects listed in § 5 1.460 and 5 1.462
need not be explicitly considered):
(1) All in-place regionally significant
highway and transit facilities, services
and activities;
(2) All ongoing travel demand
management or transportation system
management activities; and
(3) Completion of all regionally
significant projects, regardless of
funding source, which are currently
under construction or are undergoing
right-of-way acquisition (except for
hardship acquisition and protective
buying); come from the first three years
of the previously conforming TIP; or
have completed the NEPA process. (For
the first conformity determination on
the TIP after November 24, 1993, a
project may not be included in the
“Baseline” scenario if one of the
following major steps has not occurred
within the past three years: NEPA
process completion; start of final design:
acquisition of a significant portion of
the right-of-way: or approval of the
plans, specifications and estimates.
Such a project must be included In the
“Action” scenario, as described in
paragraph (d) of this section.)
(d l Define the ‘Action’ scenario as the
future transportation system that will
result from the implementation of the
proposed TIP and other expected
regionally significant projects In the
nonattainment area in the timeframa of
the transportation plan. It will Include
the following (except that projects listed
in § 51.460 and 51.462 need not be
explicitly considered):
(1) All facilities, services, and
activities in the ‘Baseline’ scenario;
(2) Completion of all TCMs and
regionally significant projects (including
facilities, services, and activities)
included In the proposed TIP, except
that regulatory TCMs may not be
assumed to begin at a future time unless
the regulation is already adopted by the
enforcing jurisdiction or the TCM Is
contained in the applicable
Implementationilan;
(3) All travel demand management
programs and transportation system
management activities known to the
MPO, but not included in the applicable
implementation plan or utilizing any
Federal funding or approval, which
have been fully adopted and/or funded
by the enforcing jurisdiction or
sponsoring agency since the last
conformity determination on the TIP;
(4) The incremental effects of any
travel demand management programs
and transportation system management
activities known to the MPO, but not
included in the applicable
implementation plan or utilizing any
Federal funding or approval, which
were adopted and/or funded prior to the
date of the last conformity
determination on the TIP, but which
have been modified since then to be
more stringent or effective;
(5) Completion of all expected
regionally significant highway and
transit projects which are not from a
conforming transportation plan and TIP;
and
(6) Completion of all expected
regionally significant non-FHWAIFFA
highway and transit projects that have
clear funding sources and commitments
leading toward their implementation
and completion by the analysis year.
(e) Estimate the emissions predicted
to result in each analysis year from
travel on the transportation systems
defined by the ‘Baseline’ and ‘Action’
scenarios, and determine the difference
in regional VOC and NO 1 emissions
(unless the Administrator determines
that additional reductions of NO 1 would
not contribute to attainment) between
the two scenarios for ozone
nonattainment areas and the difference
in CO emissions between the two
scenarios for CO nonattainment areas.
The analysis must be performed for each
of the analysis years according to the
requirements of § 51.452. Emissions in
milestone years which are between
analysis years may be determined by
interpolation.
(f) This criterion is met if the regional
VOC and NO 1 emissions in ozone
nonattainment areas and CO emissions
in CO nonatteinment areas predicted in
the ‘Action’ scenario are less than the
emissions predicted from the ‘Baseline’
scenario in each analysis year, and if
this can reasonably be expected to be
true in the period between the analysis
years. The regional analysis must show
that the ‘Action’ scenario contributes to
a reduction In emissions from the 1990
emissions by any nonzero amount.
§51.440 CriterIa and procedures: Interim
period reductions for ozone and CO areas
(project not from a plan and TIP).
A Transportation project which is not
from a conforming transportation plan
and TIP must contribute to emissions
reductions in ozone and CO
nonattainmont areas. This criterion
applies during the interim and
transitional periods only, except as
otherwise provided in § 51.464. This
criterion is satisfied if a regional
emissions analysis is performed which
meets the requirements of § 5 1.436 and
which includes the transportation plan
and project in the ‘Action’ scenario. if
the project which is not from a
conforming transportation plan and TIP
isa modification of a project currently
in the plan or TIP, the ‘Baseline’
scenario must include the project with
its original design concept and scope,
and the ‘Action’ scenario must include
the project with its new design concept
and scope.
§51.442 CrIteria and precedures: interim
period reductions for PM 10 and NO 2 areas
(transportation plan).
(a) A transportation plan must
contribute to emission reductions or
must not increase emissions in PM 10
and NO 2 nonattainment areas. This
criterion applies only during the interim
and transitional periods. It applies to
the net effect on emissions of all
projects contained in a new or revised
transportation plan. This criterion may
be satisfied if the recjuirements of either
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Federal Register I Vol. 58, No. 225 / Wednesday, November 24,
1993 I Rules and Regulations 62227
paragraph (b) or (c) of this section are
met.
(b) Demonstrate that implementation
of the plan and all other regionally
significant projects expected in the
nonattainment area will contribute to
reductions in emissions of PM,,, in a
PM 10 nonattainment area (and of each
transportation-related precursor of PM, 0
in PM, 0 nonattainment areas if the EPA
Regional Administrator or the director
of the State air agency has made a
finding That such precursor emissions
from within the nonattainment area are
a significant contributor to the PM
nonattainment problem and has so
notified the MPO and DOT) and of NO,
in an NO 2 nonattainment area, by
performing a regional emissions
analysis as follows:
(1) Determine the analysis years for
which emissions are to be estimated.
Analysis years shall be no more than ten
years apart. The first analysis year shall
be no later than 1996 (for NO 2 areas) or
four years and six months following the
date of designation (for PM 10 areas). The
second analysis year shall be either the
attainment year for the area, or if the
attainment year is the same as the first
analysis year or earlier, the second
analysis year shall be at least five years
beyond the first analysis year. The last
year of the transportation plaA’s forecast
period shall also be an analysis year.
(2) Define for each of the analysis
years the “Baseline” scenario, as
defined in § 51.436(c), and the “Action”
scenario, as defined in § 51.436(d).
(3) Estimate the emissions predicted
to result in each analysis year from
travel on the transportation systems
defined by the “Baseline” and “Action”
scenarios and determine the difference
between the two scenarios in regional
PM, 0 emissions in a PM 10
nonattainment area (and transportatipn-
related precursors of PM 10 in PM 10
nonattainment areas if the EPA Regional
Administrator or the director of the
State air agency has made a finding that
such precurso; emissions from within
the nonattainihent area are a significant
contributor to the PM 10 nonattainment
problem and has so notified the MPO
and DOT) and in NO, emissions in an
NO, nonattainment area. The analysis
must be performed for each of the
analysis years according to the
requirements of § 5 1.452. The analysis
must address the periods between the
analysis years and the periods between
1990, the first milestone year (if any),
and the first of the analysis years.
Emissions in milestone years which are
between the analysis years may be
determined by interpolation.
(4) Demonstrate that the regional PM, 0
emissions and PM 10 precursor
emissions, where applicable, (for PM,
nonattainment areas) and NO.
emissions (for NO, nonattainment areas)
predicted in the ‘Action’ scenario are
less than the emissions predicted from
the ‘Baseline’ scenario in each analysis
year, and that this can reasonably be
expected to be true in the periods
between the first milestone year (if any)
and the analysis years.
(c) Demonstrate that when the
projects in the transportation plan and
all other regionally significant projects
expected in the nonattainment area are
implemented, the transportation
system’s total highway and transit
emissions of PM,,, in a PM,,,
nonattainment ar a (and transportation.
related precursors of PM, 0 in PM,,,
nonattainment areas if the EPA Regional
Administrator or the director of the
State air agency has made a finding that
such precursor emissions from within
the nonattainment area are a significant
contributor to the PM,,, nonattainment
problem and has so notified the MPO
and DOT) and of NO 1 in an NO,
nonattainment area will not be greater
than baseline levels, by performing a
regional emissions analysis as follows:
(1) Determine the baseline regional
emissions of PM 1 ,, and PM,,, precursors,
where applicable (for PM , o
nonattainment areas) and NO, (for NO 2
nonattainment areas) from highway and
transit sources. Baseline emissions are
those estimated to have occurred during
calendar year 1990, unless the
implementation plan revision required
by § 51.396 defines the baseline
emissions for a PM 11 , area to be those
occurring in a different calendar year for
which a baseline emissions inventory
was developed for the purpose of
developing a control strategy
implementation plan.
(2) Estimate the emissions of the
applicable pollutant(s) from the entire
transportation system, including
projects in the transportation plan and
TIP and all other regionally significant
projects in the nonattainment area,
according to the requirements of
§ 51.452. Emissions shall be estimated
for analysis years which are no more
than ten years apart. The first analysis
year shall be no later than 1996 (for NO 2
areas) or four years and six months
following the date of designation (for
PM, 0 areas). The second analysis year
shall be either the attainment year for
the area, or if the attainment year is the
same as the first analysis year or earlier,
the second analysis year shall be at least
five years beyond the First analysis year.
The last year of the transportation plan’s
forecast period shall also be an analysis
year.
(3) Demonstrate that for each analysis
year the emissions estimated in
paragraph (c)(2) of this section are no
greater than baseline emissions of PM,, 1
and PM,,, precursors, where applicable
(for PM,,, nonattainment areas) or NO,
(for NO 2 nonattainment areas) from
highway and transit sources.
§ 51.444 CrIteria and procedures: Interim
period reductions for PM,, and NO 2 areas
(TIP).
(a) A TIP must contribute to emission
reductions or must not increase
emissions in PM,,, and NO,
nonattainment areas. This criterion
applies only during the interim and
transitional periods. It applies to the net
effect on emissions of all projects
contained in a new or revised TIP. This
criterion may be satisfied if the
requirements of either paragraph fb) or
paragraph (c) of this section are met.
(b) Demonstrate that implementation
of the plan and TIP and all other
regionally significant projects expected
in the nonattainment area will
contribute to reductions in emissions of
PM,,, in a PM,, 1 nonattainment area (and
transportation-related precursors of
PM, 0 In PM,,, nonattainment areas if the
EPA Regional Administrator or the
director of the State air agency has made
a finding that such precursor emissions
from within the nonattainment area are
a significant contributor to the PM,, 1
nonattainment problem and has so
notified the MPO and DOT) and of NO,
in an NO, nonattainment area, by
performing a regional emissions
analysis as Follows:
(1) Determine the analysis years for
which emissions are to be estimated,
according to the requirements of
§ 51.442(b)(1).
(2) Define for each of the analysis
years the ‘Baseline” scenario, as
defined in § 51.438(c), and the “Action”
scenario, as defined in § 51.438(d).
(3) Estimate the emissions predicted
to result in each analysis year from
travel on the transportation systems
defined by the “Baseline” and “Action”
scenarios as required by § 5 1.442(b)(3),
and make the demonstration required by
§ 51.442(b)(4).
(c) Demonstrate that when the
projects in the transportation plan and
TIP and all other regionally significant
projects expected in the area are
implemented, the transportation
system’s total highway and transit
emissions of PM, 0 in a PM, 0
nonattainmont area (and transportation-
related precursors of PM, 0 in PM, o
nonattainment areas if the EPA Regional
Administrator or the director of the
State air agency has made a finding that
such precursor emissions from within
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62228 Federal Register / Vol. 58. No. 225 I Wednesday. November 24, 1993 / Rules and Regulations
the nonattainment area are a significant
contributor to the PM 10 nonattainment
problem and has so notified the MPO
and DOT) and of NO 1 in an NO 2
nonattainment area will not be greater
than baseline levels, by performing a
regional emissions analysis as required
by § 51.442(c) (1)—(3).
§ 51.446 CriterIa and procedures: Interim
parlod reductions for PMo and NO 2 areas
(project not from a plan and TIP).
A transportation project which is not
from a conforming transportation plan
and TIP must contribute to emission
reductions or must not increase
emissions in PM 10 and NO 2
nonattainment areas. This criterion
applies during the interim and
transitional periods only. This criterion
is met if a regional emissions analysis is
performed which meets thp
requirements of § 51.442 and which
includes the transportation plan and
project in the ‘Action’ scenario. If the
project which s not from a conforming
transportation plan and TIP is a
modification of a project currently in
the transportation plan or TIP, and
§ 51.442(b) is used to demonstrate
satisfaction of this criterion, the
‘Baseline’ scenario must include the
project with its original design concept
and scope. and the ‘Action’ scenario
must include the project with its new
design concept and scope.
§ 51.448 TransItion from the Interim period
to the control strategy period.
(a) Areas which submit a control
strategy implementation plan revision
after November 24, 1993. (1) The
transportation plan and TIP must be
demonstrated to conform according to
transitional period criteria and
procedures by one year from the date
the Clean Air Act requires submission of
such control strategy implementation
plan revision. Otherwise, the conformity
status of the transportation plan and TIP
will lapse, and no new project-level
conformity determinations may be
made.
(i) The conformity of new
transportation plans and TIPs may be
demonstrated according to Phase II
interim period criteria and procedures
for 90 days following submission of the
control strategy implementation plan
revision, provided the conformity of
such transportation plans and TIPs is
redetermined according to transitional
period criteria and procedures as
required in paragraph (a)(1) of this
section.
(ii) Beginning 90 days after
submission of the control strategy
implementation plan revision, new
transportation plans and TIPs shall
demonstrate conformity according to
transitional period criteria and
procedures.
(2) If EPA disapproves the submitted
control strategy implementation plan
revision and so notifies the State, MPO,
and DOT, which Initiates the sanction
process under Clean Air Act sections
179 or 110(m), the conformity status of
the transportation plan and TIP shall
lapse 120 days after EPA’s disapproval,
and no new pro ject-level conformity
determinations may be made. No new
transportation plan, TIP, or project may
be found to conform until another
control strategy implementation plan
revision is submitted and conformity is
demonstrated according to transitional
period criteria and procedures.
(3) Notwithstanding paragraph (a112)
of this section, if EPA disapproves the
submitted control strategy
implementation plan revision but
determines that the control strategy
contained in the revision would have
been considered approvable with
respect to requirements for emission
reductions if all committed measures
had been submitted in enforceable form
as required by Clean Air Act section
110(a)(2)(A), the provisions of paragraph
(a)(l) of this section shall apply for 12
months following the date of
disapproval. The conformity status of
the transportation plan and TIP shall
lapse 12 months following the date of
disapproval unless another control
strategy implementation plan revision Is
submitted to EPA and found to be
complete.
(b) Areas which hove not submitted a
control strategy implementation plan
revision. (1) For areas whose Clean Air
Act deadline for submission of the
control strategy implementation plan
revision is after November 24, 1993, and
EPA has notified the State, MPO, and
DOT of the State’s failure to submit a
control strategy implementation plan
revision, which initiates the sanction
process under Clean Air Act sections
179 or 110(m):
(i) No new transportation plans or
TIPs may be found to conform
beginning 120 days after the Clean Air
Act deadline; and
(ii) The conformity status of the
transportation plan and TIP shall lapse
one year after the Clean Air Act
deadline, and no new project-level
conformity determinations may be
made.
(2) For areas whose Clean Air Act
deadline for submission of the control
strategy implementation plan was before
November 24, 1993 and EPA has made
a finding of failure to submit a control
strategy implementation plan revision,
which initiates the sanction process
under Clean Air Act sections 179 or
110(m). the following apply unless the
failure has been remedied and
acknowledged by a letter from the EPA
Regional Administrator:
(i) No new transportation plans or
TIPs may be found to conform
beginning March 24, 1994; and
(ii) The conformity status of the
transportation plan and TIP shall lapse
November 25, 1994, and no new project-
level conformity determinations may be
made.
(c) Areas which have not submitted a
complete control strategy
implementation plan revision. (I) For
areas where EPA notifies the State,
MPO, and DOT after November 24, 1993
that the control strategy implementation
plan revision submitted by the State is
incomplete, which initiates the sanction
process under Clean Air Act sections
179 or 110(m), the following apply
unless the failure has been remedied
and acknowledged by a letter from the
EPA Regional Administrator:
(I) No new transportation plans or
TIPs may be found to conform
beginning 120 days after EPA’s
incompleteness finding; and
(ii) The conformity status of the
transportation plan and TIP shall lapse
one year after the Clean Air Act
deadline, and no new project-level
conformity determinations may be
made.
(iii) Notwithstanding paragraphs (c)(1)
(i) and (ii) of this section, ii EPA notes
in its incompleteness finding that the
submittal would have been considered
complete with respect to requirements
for emission reductions if all committed
measures had been submitted in
enforceable form as required by Clean
Air Act section 110(a)(2)(A), the
provisions of paragraph (a)(1) of this
section shall apply for a period of 12
months following the date of the
incompleteness determination. The
conformity status of the transportation
plan and TIP shall lapse 12 months
following the date of the incompleteness
determination unless another control
strategy implementation plan revision Is
submitted to EPA and found to be
complete.
(2) For areas where EPA has
determined before November 24, 1993
that the control strategy implementation
plan revision is incomplete, which
initiates the sanction process under
Clean Air Act sections 179 or 110(m),
the following apply unless the failure
has been remedied and acknowledged
by a letter from the EPA Regional
Administrator
(i) No new transportation plans or
TIPs may be found to conform
beginning March 24. 1994; and
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Federal Register / Vol. 58, No. 225 F Wednesday, November 24, 1993 / Rules and Regulations 62229
(ii) The conformity status of the
transportetion plan and TIP shall lapse
November 25 1994, and no new project-
level conformity determinations may be
made.
(iii) Notwithstanding paragraphs (c)(2)
(i) and (ii) of this section, if EPA notes
in its incompleteness finding that the
submittal would have been considered
complete with respect to requirements
for emission reductions if all committed
measures had been submitted in
enforceable form as required by Clean
Air Act section 11O(a)(2)(A), the
provisions of paragraph (d)(i) of this
section shall apply for a period of 12
months following the date of the
incompleteness determination. The
conformity status of the transportation
plan and TIP shall lapse 12 months
following the date of the incompleteness
determination unless another control
strategy implementation plan revision is
submitted to EPA and found to be
complete.
(d) Areas which submitted a control
strategy implementation plan before
November24, 1993. (1) The
transportation plan and TIP must be
demonstrated to conform according to
transitional period criteria and
procedures by November 25. 1994.
Otherwise, their conformity status will
lapse, and no new project-level
conformity determinations may be
made.
(i) The conformity of new
transportation plans and TIPs may be
demonstrated according to Phase II
interim period criteria and procedures
until February 22, 1994, provided the
conformity of such transportation plans
and TIPs is redetermined according to
transitional period criteria and
procedures as required in paragraph
(d)(i) of this section.
(ii) Beginning February 22. 1994. new
transportation plans and TIPs shall
demonstrate conformity according to
transitional period criteria and
procedures.
(2) If EPA has disapproved the most
recent control strategy Implementation
plan submission, the conformity status
of the transportation plan and TIP shall
lapse March 24, 1994. and no new
project-level conformity determinations
may be made. No new transportation
plans, TIPs, or projects may be found to
conform until another control strategy
implementation plan revision is
submitted and conformity is
demonstrated according to transitional
period criteria and procedures.
(3) Notwithstandmg paragraph (d)(2)
of this section, if EPA has disapproved
the submitted control strategy
implementation plan revision but
determines that the control strategy
contained in the revision would have
been considered approvable with
respect to requirements for emission
reductions if all committed measures
had been submitted in enforceable form
as required by Clean Air Act section
11O(a)(2)(A), the provisions of paragraph
(d)(i) of this section shall apply for 12
months following November 24, 1993.
The conformity status of the
transportation plan and TiP shall lapse
12 months following November 24, 1993
unless another control strategy
Implementation plan revision is
submitted to EPA and found to be
complete.
(e) Projects. If the currently
conforming transportation plan and TIP
have not been demonstrated to conform
according to transitional period criteria
and procedures, the requirements of
paragraphs (a) (1) and (2) of this section
must be met.
(1) Before a FHWA/FTA project
which is regionally significant and
increases single-occupant vehicle
capacity (a new general purpose
highway on a new location or adding
general purpose lanes) may be found to
conform, the State air agency must be
consulted on how the emissions which
the existing transportation plan and
TIP’s conformity determination
estimates for the “Action” scenario (as
required by § 51.436 through 51.446)
compare to the motor vehicle emissions
budget in the implementation plan
submission or the projected motor
vehicle emissions budget in the
implementation plan under
development.
(2) In the event of unresolved disputes
on such project-level conformity
determinations, the State air agency may
escalate the issue to the Governor
consistent with the procedure in
§ 5 1.402(d), which applies for any State
air agency comments on a conformity
determination.
(I) Redetermination of conformity of
the existing transportation plan and TIP
according to the transitional period
criteria ond procedures. (1) The
redetermination of the conformity of the
existing transportation plan and TIP
according to transitional period criteria
and procedures (as required by
paragraphs (a)(1) and (d)(1) of this
section) does not require new emissions
analysis and does not have to satisfy the
requirements of §fi 51.412 and 51.414 if:
(i) The control strategy
implementation plan revision submitted
to EPA uses the MPO’s modeling of the
existing transportation plan and TIP for
its projections of motor vehicle
emissions; and
(ii) The control strategy
implementation plan does not include
any transportation projects which are
not included in the transportation plan
and TIP.
(2) A redetermination of conformity as
described in paragraph (fl(1) of this
section is not considered a conformity
determination for the purposes of
§ 51.400(b)(4) or § 51.400(c)(4) regarding
the maximum intervals between
conformity determinations. Conformity
must be determined according to all the
applicable criteria and proce4ures of
§ 51.410 within three years of the last
determination which did not rely on
paragraph ( 0(i) of this section.
(g) Ozone nonattainment areas. (1)
The requirements of paragraph (b)(i) of
this section apply if a serious or above
ozone nonattainment area has not
submitted the implementation plan
revisions which Clean Air Act sections
182(c)(2)(A) and 182(c)(2)(B) require to
be submitted to EPA November 15,
1994,even If the area has submitted the
implementation plan revision which
Clean Air Act section 182(b)(1) requires
to be submitted to EPA November 15,
1993.
(2) The requirements of paragraph
(blil) of this section apply if a moderate
ozone nonattainment area which is
using photochemical dispersion
modeling to demonstrate the “specific
annual reductions as necessary to
attain” required by Clean Air Act
section 182(b)(1), and which has
permission from EPA to delay
submission of such demonstration until
November 15, 1994, does not submit
such demonstration by that date. The
requirements of paragraph (b)(1) of this
section apply in this case even if the
area has submitted the 15% emission
reduction demonstration required by
Clean Air Act section 182(b)(1).
(3) The requirements of paragraph (a)
of this section apply when the
implementation plan revisions required
by Clean Air Act sections 182(c)(2)(A)
and 182(c)(2)(B) arc submitted.
(h) Non attainment areas which ore
not required to demonstrate reasonable
further progress and attainment. If an
area listed in § 51.464 submits a control
strategy implementation plan revision,
the requirements of paragraphs (a) and
Ce) of this section apply. Because the
areas listed in § 5 1.464 are not required
to demonstrate reasonable further
progress and attainment and therefore
have no Clean Air Act deadline, the
provisions of paragraph U,) of this
section do not apply to these areas at
any time.
(i) Maintenance plans. If a control
strategy implementation plan revision is
not submitted to EPA but a maintenance
plan required by Clean Air Act section
175A is submitted to EPA. the
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62230 Federal Register I Vol. 58, No. 225 / Wednesday. November 24. 1993 / Rules and Regulations
requirements of paragraph (a) or (d) of
this section apply, with the
maintenance plan submission treated as
a “control strategy implementation plan
revision” for the purposes of those
requirements
§ 51.450 RequIrements for adoption or
approval of projects by recipients of funds
desIgnated under tItle 23 U.S.C. or the
Federal Transit Act.
No recipient of federal funds
designated under title 23 U.S.C. or the
Federal ‘l’ransit Act shall adopt or
approve a regionally significant
highway or transit project, regardless of
funding source, unless there is a
currently conforming transportation
plan and TIP consistent with the
requirements of § 51.420 and the
requirements of one of the following
paragraphs (a) through (e) of this section
are met:
(a) The project comes from a
contorming plan and program consistent
with the requirements of § 51 422;
b) The project is included in the
regional emissions analysis supporting
the currently conforming TIP’s
conformity determination, even if the
project is not strictly “included” in the
TIP for the purposes of MPO project
selection or endorsement, and the
project’s design concept and scope have
not changed significantly from those
which were included in the regional
emissions analysis, or in a manner
which would significantly impact use of
the facility;
(c) During the control strategy or
maintenance period, the project is
consistent with the motor vehicle
emissions budget(s) in the applicable
implementation plan consistent with
the requirements of § 51.432;
(d) During Phase II of the interim
period, the project contributes to
emissions reductions or does not
increase emissions consistent with the
requirements of §51.440 (in ozone and
CO nonattainment areas) or § 51.446 (in
PM 10 and NO 2 nonattainment areas); or
(e) During the transitional period, the
project satisfies the requirements of both
paragraphs (c) and (d) of this section.
§51.452 Procedures for determining
regional transportatIon-related emIssions.
(a) Genera! requirements. (1) The
regional emissions analysis for the
transportation plan, TIP, or project not
from a conforming plan and TIP shall
include all regionally significant
projects expected in the nonattainment
or maintenance area, including FHWA/
FTA projects proposed in the
transportation plan and TIP and all
other regionally significant projects
which are disclosed to the MPO as
required by § 51.402. Projects which are
not regionally significant are not
required to be explicitly modeled, but
VMT from such projects must be
estimated in accordance with reasonable
professional practice. The effects of
TcMs and similar projects that are not
regionally significant may also be
estimated in accordance with reasonable
professional practice.
(2) The emissions analysis may not
include for emissions reduction credit
any TCMs which have been delayed
beyond the scheduled date(s) until such
time as implementation has been
assured. If the TCM has been partially
implemented and it can be
demonstrated that it is providing
quantifiable emission reduction
benefits, the emissions analysis may
include that emissions reduction credit.
(3) Emissions reduction credit from
projects, programs. or activities which
require a regulation in order to be
implemented may not be included in
the emissions analysis unless the
regulation is already adopted by the
enforcing jurisdiction. Adopted
regulations are required for demand
management strategies for reducing
emissions which are not specifically
identified in the applicable
implementation plan, and for control
programs which are external to the
transportation system itself, such as
tailpipe or evaporative emission
standards, limits on gasoline volatility,
inspection and maintenance programs,
and oxygenated or reformulated
gasoline or diesel fuel. A regulatory
program may also be considered to be
adopted if an opt-in to a Federally
enforced program has been approved by
EPA, if EPA has promulgated the
program (if the control program is a
Federal responsibility, such as tailpipe
standards), or if the Clean Air Act
requires the program without need for
individual State action and without any
discretionary authority for EPA to set its
stringency, delay its effective date, or
not implement the program.
(4) Notwithstanding paragraph (a)(3)
of this section, during the transitional
period, control measures or programs
which are committed to in an
implementation plan submission as
described in § 51.428 through 51.432,
but which has not received final EPA
action in the form of a finding of
incompleteness, approval, or
disapproval may be assumed for
emission reduction credit for the
purpose of demonstrating that the
requirements of 51.428 through
51.432 are satisfied.
(5) A regional emissions analysis for
the purpose of satisfying the
requirements of 51.436 through
51.440 may account for the programs in
paragraph (a)(4) of this section. but the
same assumptions about these programs
shall be used for both the “Baseline”
and “Action” scenarios,
(b) Serious, severe, and extreme ozone
nonattainment areas and serious carbon
monoxide areas after Januazy 1, 1995.
Estimates of regional transportation-
related emissions used to support
conformity determinations must be
made according to procedures which
meet the requirements in paragraphs
(b)(i) through (5) of this section.
(1) A network-based transportation
demand model or models relating travel
demand and transportation system
performance to land-use patterns,
population demographics, employment,
transportation infrastructure, and
transportation policies must be used to
estimate travel within the metropolitan
planning area of the nonattainment area.
Such a model shall possess the
following attributes:
.(i) The modeling methods and the
functional relationships used in the
model(s) shall in all respects be in
accordance with acceptable professional
practice, and reasonable for purposes of
emission estimation;
(ii) The network-based model(s) must
be validated against ground counts for a
base year that is not more than 10 years
prior to the date of the conformity
determination. Land use, population,
and other inputs must be based on the
best available information and
appropriate to the validation base year;
(iii) For peak-hour or peak-period
traffic assignments, a capacity sensitive
assignment methodology must be used;
(iv) Zone-to-zone travel times used to
distribute trips between origin and
destination pairs must be in reasonable
agreement with the travel times which
result from the process of assignment of
trips to network links. Where use of
transit currently is anticipated to be a
significant factor in satisfying
transportation demand, these times
should also be used for modeling mode
splits;
(v) Free-flow speeds on network links
shall be based on empirical
observations;
(vi) Peak and off-peak travel demand
and travel times must be provided;
(vii) Trip distribution and mode
choice must be sensitive to pricing,
where pricing is a significant factor, if
the network model is capable of such
determinations and the necessary
information is available;
(viii) The model(s) must utilize and
document a logical correspondence
between the assumed scenario of land
development and use and the future
transportation system for which
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Federal Register / Vol. 58, No. 225 I Wednesday, November24 . 1993 / Rules and Regulations 62231
emissions are being estimated. Reliance
on a formal land-use model is not
specifically required but is encoura ed;
(ix) A dependence of trip generation
on the accessibility of destinations via
the transportation system (including
pricing) is strongly encouraged but not
specifically required, unless the
network model is capable of such
determinations and the necessary
information is available;
(x) A dependence of regional
economic and population growth on the
accessibility of destinations via the
transportation system is strongly
encouraged but not specifically
required, unless the network model is
capable of such determinations and the
necessary information is available; and
(xi) Consideration of emissions
increases from construction-related
congestion is not specifically required.
(2) Highway Performance Monitoring
System (HPMS) estimates of vehicle
miles traveled shall be considered the
primary measure of vehicle miles
traveled within the portion of the
nonattainment or maintenance area and
for the functional classes of roadways
included in HPMS, for urban areas
which are sampled on a separate urban
area basis. A factor (or factors) shall be
developed to reconcile and calibrate the
network-based model estimates of
vehicle miles traveled in the base year
of its validation to the HPMS estimates
for the same period, and these factors
shall be applied to model estimates of
iuture vehicle miles traveled. In this
factoring process, consideration will be
given to differences in the facility
coverage of the HPMS and the modeled
network description. Departure from
these procedures is permitted with the
concurrence of DOT and EPA.
(3) Reasonable methods shall be used
to estimate nonattainment area vehicle
travel on off-network roadways within
the urban transportation planning area.
and on roadways outside the urban
transportation planning area.
(4)Reasonable methods in accordance
with good practice must be used to
estimate traffic speeds and delays in a
manner that is sensitive to the estimated
volume of travel on each roadway
segment represented in the network
model.
(5) Ambient temperatures shall be
consistent with those used to establish
the emissions budget in the applicable
implementation plan. Factors other than
temperatures, for example the fraction
of travel in a hot stabilized engine
mode, may be modified after
interagency consultation according to
§ 5 1.402 if the newer estimates
incorporate additional or more
geographically specific information or
represent a logically estimated trend in
such factors beyond the period
considered in the applicable
implementation plan.
(c) Areas which are not serious.
severe, or extreme ozone nonattainment
areas or serious carbon monoxide areas,
or before January 1, 1995. (1) Procedures
which satisfy some or all of the
requirements of paragraph (a) of this
section shall be used in all areas not
subject to paragraph (a) of this section
in which those procedures have been
the previous practice of the MPO.
(2) Regional emissions may be
estimated by methods which do not
explicitly or comprehensively account
for the influence of land use and
transportation infrastructure on vehicle
miles traveled and traffic speeds and
congestion. Such methods must account
for VMT growth by extrapolating
historical VMT or projecting future
V?4T by considering growth in
population and historical growth trends
for vehicle miles travelled per person.
These methods must also consider
future economic activity, transit
alternatives, and transportation system
policies.
(d) Projects not from a conforming
plan and TIP in isolated rural
nonattoinment and maintenance areas.
This paragraph applies to any
nonattainment or maintenance area or
any portion thereof which does not have
a metropolitan transportation plan or
TIP end whose projects are not part of
the emissions analysis of any MPO’s
metropolitan transportation plan or TIP
(because the nonattainment or
maintenance area or portion thereof
does not contain a metropolitan
planning area or portion of a
metropolitan planning area and is not
part of a Metropolitan Statistical Area or
Consolidated Metropolitan Statistical
Area which is or contains a
nonattainment or maintenance area).
(1) Conformity demonstrations for
projects in these areas may satisfy the
requirements of § 51.432, 51.440, and
5 1.446 with one regional emissions
analysis which includes all the
regionally significant projects in the
nonattainment or maintenance area (or
portion thereof).
(2) The requirements of § 51.432 shall
be satisfied according to the procedures
in § 51.432(c), with references to the
•‘transportation plan” taken to mean the
statewide transportation plan.
(3) The requirements of § 51.440 and
51.446 which reference “transportation
plan” or “TIP” shall be taken to mean
those projects in the statewide
transportation plan or statewide TIP
which are in the nonattainment or
maintenance area (or portion thereof).
(4) The requirement of § 51.450(b)
shall be satisfied if:
(i) The project is included in the
regional emissions analysis which
includes all regionally significant
highway and transportation projects in
the nonaltainment or maintenance area
(or portion thereof) and supports the
most recent conformity determination
made according to the requirements of
§ 51.432, 51.440, or 51.446 (as
modified by paragraphs (d)(2) and (d)(3)
of this section), as appropriate for the
time period and pollutant; and
(ii) The project’s design concept and
scope have not changed significantly
from those which were included in the
regional emissions analysis. or in a
manner which would significantly
impact use of the facility.
(e) PM 111 from construction-related
fugitive dust. (1) For areas in which the
implementation plan does not identify
construction-related fugitive PM. as a
contributor to the nonattainment
problem, the fugitive PM 10 emissions
associated with highway and transit
project construction are not required to
be considered in the regional emissions
analysis.
(2) In PM)() nonattainmenl and
maintenance areas with implementation
plans which identify construction-
related fugitive PM . 0 as a contributor to
the nonottainment problem, the regional
PM 10 emissions analysis shall consider
construction-related fugitive PM 1 . and
shall account for the level of
construction activity, the fugitive PM 10
control measures in the applicable
implementation plan, and the dust-
producing capacity of the proposed
activities.
§ 51.454 Procedures for determInIng
localized CO and PM concentrations (hot-
spot analysis).
(a) In the following cases. CO hot-spot
analyses must be based on the
applicable air quality models, data
bases, and other requirements specified
in 40 FR part 51, appendix W
(“Guideline on Air Quality Models
(Revised)” (1988), supplement A (1987)
and supplement B (1993), EPA
publication no. 450/2—78—027R). unless,
after the interagency consultation
process described in § 51.402 and with
the approval of the EPA Regional
Administrator, these models, data bases,
and other requirements are determined
to be inappropriate:
(a) For projects in or affecting
locations, areas, or categories of sites
which are identified in the applicable
implementation plan as sites of current
violation or possible current violation;
(2) For those intersections at Level.of-
Service D, E, or F, or those that will
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02232 Federal Register / Vol. 58, No. 225 I Wednesday, November 24, 1993 / Rules and Regulations
change to Level-of-Service D, E, or F
because of increased traffic volumes
related to a new project in the vicinity;
(3) For any project involving or
affecting any of the intersections which
the applicable implementation plan
identifies as the top three intersections
in the nonattainment or maintenance
area based on the highest traffic
volumes;
(4) For any project involving or
affecting any of the intersections which
the applicable implementation plan
identifies as the top three intersections
in the nonattainment or maintenance
area based on the worst Level.of-
Service; and
(5) Where use of the “Guideline”
models is practicable and reasonable
given the potential for violations.
(b) In cases other than those described
in paragraph (a) of this section, other
quantitative methods may be used if
they represent reasonable and common
professional practice.
(c) co hot-spot analyses must include
the entire project, and may be
performed only after the major design
features which will significantly impact
CO concentrations have been identified.
The background concentration can be
estimated using the ratio of future to
current traffic multiplied by the ratio of
future to current emission factors.
(d) PM 10 hot-spot analysis must be
performed for projects which are located
at sites at which violations have been
verified by monitoring, and at sites
which have essentially identical vehicle
and roadway emission and dispersjon
characteristics (including sites near one
at which a violation has been
monitored). The projects which require
PM 10 hot.spot analysis shall be
determined through the interagency
consultation process required in
§ 5 1.402. In PM 1 0 nonattainment and
maintenance areas, new or expanded
bus and rail terminals and transfer
points which increase the number of
diesel vehicles congregating at a single
location require hot.spot analysis. DOT
may choose to make a categorical
conformity determination on bus and
rail terminals or transfer points based on
appropriate modeling of various
terminal sizes, configurations, and
activity levels. The requirements of this
paragraph for quantitative hot-spot
analysis will not take effect until EPA
releases modeling guidance on this
subject and announces in the Federal
Register that these requirements are in
effect.
(e) Hot-spot analysis assumptions
must be consistent with those in the
regional emissions analysis for those
inputs which are required for both
analyses.
(f) PM 10 or CO mitigation or control
measures shall be assumed in the hot.
spot anelysis only where there are
written commitments from the project
sponsor and/or operator to the
implementation of such measures, as
required by § 5 1.458(a).
(g) CO and PM 10 hot-spot analyses are
not required to consider construction-
related activities which cause temporary
increases in emissions. Each site which
is affected by construction-related
activities shall be considered separately.
using established “Guideline” methods.
Temporary increases are defined as
those which occur only during the
construction phase and last five years or
less at any individual site.
§ 51.456 UsIng the motor vehicle
emissions budget In the applicable
Implementation plan (or Implementation
plan submissIon).
(aJ In interpreting an applicable
implementation plan (or
implementation plan submission) with
respect to its motor vehicle emissions
budget(s), the MPO and DOT may not
infer additions to the budget(s) that are
not explicitly intended by the
implementation plan (or submission).
Unless the implementation plan
explicitly quantifies the amount by
which motor vehicle emissions could be
higher while still allowing a
demonstration of compliance with the
milestone, attainment, or maintenance
requirement and explicitly states an
intent that some or all of this additional
amount should be available to the MPO
and DOT in the emission budget for
conformity purposes, the MPO may not
interpret the budget to be higher than
the implementation plan’s estimate of
future emissions. This applies in
particular to applicable implementation
plans (or submissions) which
demonstrate that after implementation
of control measures in the
implementation plan:
(1) Emissions from all sources will be
less than the total emissions that would
be consistent with a required
demonstration of an emissions
reduction milestone;
(2) Emissions from all sources will
result in achieving attainment prior to
the attainment deadline and/or ambient
concentrations in the attainment
deadline year will be lower than needed
to demonstrate attainment; or
(3) Emissions will be lower than
needed to provide for continued
maintenance.
(b) If an applicable implementation
plan submitted before November 24,
1993 demonstrates that emissions from
all sources will be less than the total
emissions that would be consistent with
attainment and quantifies that “safety
margin,” the State may submit a SIP
revision which assigns some or all of
this safety margin to highway and
transit mobile sources for the purposes
of conformity. Such a SIP revision, once
it is endorsed by the Governor and has
been subject to a public hearing, may be
used for the purposes of transportation
conformity before it is approved by
EPA.
(c) A conformity demonstration shall
not trade emissions among budgets
which the applicable implementation
plan (or implementation plan
submission) allocates for different
pollutants or precursors, or among
budgets allocated to motor vehicles and
other sources, without a SIP revision or
a SIP which establishes mechanisms for
such trades.
(d) If the applicable implementation
plan (or implementation plan
submission) estimates future emissions
by geographic subarea of the
nonattainmerit area, the MPO and DOT
are not required to consider this to
establish subarea budgets, unless the
applicable implementation plan (or
implementation plan submission)
explicitly indicates an intent to create
such subarea budgets for the purposes of
conformity.
(e) If a nonattainment area includes
more than one MPO, the SIP may
establish motor vehicle emissions
budgets for each MPO. or else the MPOs
must collectively make a conformity
determination for the entire
nonattainment area.
§51.458 EnforceabilIty ef design concept
and scope and project-level mitigation and
control measures.
(a) Prior to determining that a
transportation project is in conformity,
the MPO, other recipient of funds
designated under title 23 U.S.C. or the
Federal Transit Act, FHWA, or FTA
must obtain from the project sponsor
and/or operator written commitments to
implement in the construction of the
project and operation of the resulting
facility or service any project-level
mitigation or control measures which
are identified as conditions for NEPA
process completion with respect to local
PM 10 or CO impacts. Before making
conformity determinations written
commitments must also be obtained for
project-level mitigation or control
measures which are conditions for
making conformity determinations for a
transportation plan or TIP and included
in the project design concept and scope
which is used in the regional emissions
analysis required by § 51.428 through
51.432 and § 51.436 through 51.440 or
used in the project-level hot-spot
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Federal Register / Vol. 58, No. 225 / Wednesday, November 24,
1993 / Rules and Regulations 62233
analysis required by § 51.424 and
51.434.
(b) Project sponsors voluntarily
committing to mitigation meisures to
facilitate positive conformity
determinations must comply with the
obligations of such commitments.
(c) The implementation plan revision
required in § 5 1.396 shall provide that
written commitments to mitigation
measures must be obtained prior to a
positive conformity determination, and
that project sponsors must comply with
such commitments.
(d) During the control strategy arid
maintenance periods, if the MPO or
project sponsor believes the mitigation
or control measure is no longer
necessary for conformity, the project
sponsor or operator may be relieved of
its obligation to implement the
mitigation or control measure if it can
demonstrate that the requirements of
§ 51.424. 51.428, and 51.430 are
satisfied without the mitigation or
control measure, and so notifies the
agencies involved in the interagency
consultation process required under
§ 51.402. The MPO and DOT must
confirm that the transportation plan and
TIP still satisfy the requirements of
§ 51.428 and 51.430 and that the
project still satisfies the requirements of
§ 51.424. and therefore that the
conformity determinations for the
transportation plan, liP, and project are
still valid.
§51.460 Exempt projects.
Notwithstanding the other
requirements of this subpart, highway
and transit projects of the types listed in
Table 2 are exempt from the
requirement that a conformity
determination be made. Such projects
may proceed toward implementation
even in the absence of a conforming
transportation plan and TIP. A
particular action of the type listed in
Table 2 is not exempt if the MPO in
consultation with other agencies (see
§ 51.402(c)(1)(iii)), the EPA, and the
FHWA (in the case of a highway project)
or the FTA (in the case of a transit
project) concur that it has potentially
adverse emissions impacts for any
reason. States and MPOs must ensure
that exempt projects do not interfere
with TC l implementation.
TABLE 2.—EXEMPT PROJECTS
Safety
Railroad/highway crossing.
Hazard elimination program.
Safer non-Federal-aid system roads.
Shoulder improvements.
increasing sight distance. -
Safety improvement program.
Traffic control devices and operating assistance other than signalization projects.
Railroad/highway crossing warning devices.
Guardrails, median bamers, crash cushions.
Pavement resurfacing and/or rehabilitation.
Pavement marking demonstration.
Emergency rebel (23 U.S.C. 125).
Fencing.
Skid treatments.
Safety roadside rest areas.
Adding medians.
Truck climbing lanes outside the urbanized area.
Ughting improvements.
Widening narrow pavements or reconstructing bridges (no additional travel lanes).
Emergency truck pullovers.
Mass Transit
Operating assistance to transit agencies.
Purchase 01 support vehicles.
Rehabilitation of transit vehicles.’
Purchase o office, shop, and operating equipment for existing facilities.
Purchase 01 operatIng equipment for vehicles (e.g., radios, fareboxes, lifts, etc.).
Construction or renovation of power, signal, and communications systems.
Construction of small passenger shelters and information kiosks.
Reconstruction or renovation of transit buildings and structures (e.g., rail or bus buildings. storage and maintenance facilities, stations, tem nals,
and ancillary structures).
Rehabilitation or reconstruction of track structures, track. and track bed in existing rights.ol-way.
Purchase of new buses and rail cars to replace existing vehicles or for i utor expansions of the fleet.’
Construction of new bus or rail storage/maintenance facilities categorically excluded in 23 CFR part 771.
Air Quality
Continuation of ride-sharing and van.pooling promotion activities at current levels.
Bicycle and pedestrian facilities.
Other
Specific activities which do not involve or lead directly to construction, such as:
Planning and technical studies.
Grants for training and research programs.
Planning activities conducted pursuant to titles 23 and 49 U.S.C.
Federal-aid systems revisions.
Englneenng to assess social, economic, and environmental effects of the proposed action or alternatives to that action.
Noise attenuation.
Advance land acquIsitions (23 CFR part 712 or 23 CFR part 771).
Acquisition of scenic easements.
Plantings, landscaping, etc.
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62234 Federal Register / Vol. 58. No. 225 / Wednesday, November 24, 1993 1 Rules and Regulations
TABLE 2.—EXEMPT PRoJECTs—Continued
Sign removal.
Directional and informational signs.
Transportation enhancement activities (eacept rehabilitation and operation of historic transportation buildings, structures, or facilities).
Repair of damage caused by natural disasters, civil unrest, or terrorist acts, except projects involving substantial functional, locational or capac-
ity changes.
‘PM,,, nonattainment or maintenance areas, such projects are exempt only it they are in compliance with control measures in the applicable
implementation plan.
§ 51.462 Projects exempt from regional
emissions analyses.
Notwithstanding the other
requirements of this subpart, highway
and transit projects of the types listed in
Table 3 are exempt from regional
emissions analysis requirements. The
local effects of these projects with
respect to Co or PM, 0 concentrations
must be considered to determine ii a
hot.spot analysis is required prior to
making a project-level conformity
determination. These projects may then
proceed to the project development
process even in the absence of a
conforming transportation plan and Tl ,P.
A particular action of the type listed in
Table 3 is not exempt from regional
emissions analysis if the MPO in
consultation with other agencies (see
§ 51.402(c)(1)(iii)). the EPA, and the
FHWA (in the case of a highway project)
or the F1’A (in the case of a transit
project) concur that it has potential
regional impacts for any reason.
TABLE 3.—PRoJECTS EXEMPT FROM
REGIONAL EMISSIONS ANALYSES
Intersection channelization projects.
Intersection signalization projects at individual
intersections.
Interchange reconfiguration projects.
Changes in vertical and honzontal alignment
Truck size and weight inspection stations.
Bus terminals arid transfer points .
§51.464 Special provisions for
nonattalnment areas which are not required
to demonstrate reasonable further progress
and attalnmenL
(a) Application. This section applies
in the following areas:
(1) Rural transport ozone
nonattainment areas;
(2) Marginal ozone areas;
(3) Submarginal ozone areas;
(4) Transitional ozone areas;
(5) Incomplete data ozone areas;
(6) Moderate CO areas with a design
value of 12.7 ppm or less: and
(7) Not classified CO areas.
(b) Default conformity procedures.
The criteria and procedures in § 5 1.436
through 5 1.440 will remain in effect
.hroughout the control strategy period
for transportation plans, TIPs, and
projects (not from a conforming plan
and TIP) in lieu of the procedures in
§ 51.428 through 51.432, except as
otherwise provided in paragraph (c) of
this section.
(c) Optional conformity procedures.
The State or MPO may voluntarily
develop an attainment demonstration
and corresponding motor vehicle
emissions budget like those required in
areas with higher nonattainment
classifications. In this case, the State
must submit an implementation plan
revision which contains that budget and
attainment demonstration. Once EPA
has approved this implementation plan
revision, the procedures in § 51.428
through 51.432 apply in lieu of the
procedures in § 51.436 through 51.440.
3. A new part 93 is added to read as
follows:
PART 93—DETERMINING
CONFORMITY OF FEDERAL ACTIONS
TO STATE OR FEDERAL
IMPLEMENTATION PLANS
Subpart A—Conformity to State or Federal
ImplementatIon Plans of Transportation
Plans, Programs, and Projects Developed,
Funded or Approved Under Title 23 U.S.C.
or the Federal Transit Act
Sec
93 100 Purpose.
93.101 Definitions.
93.102 Applicability
93 103 Priority.
93.104 Frequency of conformity
determinations.
93 105 Consultation.
93.106 Content of transportation plans.
93.107 Relationship of transportation plan
end TIP onforinity with the NEPA
process.
93.108 Fiscal constraints for transportation
plans and TIPs.
93.109 Criteria and procedures for
determining conformity of transportation
plans, programs, and projects: General.
93 110 Criteria and procedures: Latest
planning assumptions.
93.111 Criteria and procedures: Latest
emissions model.
93 112 Criteria and procedures:
Consultation.
93.113 Criteria and procedures: Timely
implementation of TCMs.
93.114 Criteria and procedures: Currently
conforming transportation plan and TIP.
Se
93.115 CrIteria and procedures: Projects
from a plan and TIP.
93.116 Criteria and procedures: Localized
co and PMio violations (hot spots).
93.117 Criteria and procedures Compliance
with PM,,, control measures.
93.118 Criteria and procedures: Motor
vehicle emissions budget (transportation
plan).
93.119 Criteria and procedurer Motor
vehicle emissions budget (TIP).
93.120 Criteria and procedures: Motor
vehicle emissions budget (project not
from a plan and TIP).
93.121 Criteria and procedures: Localizee
co violations (hot spots) in the interim
period.
93.122 CriterIa and procedures Interim
period reductions in ozone and CO areas
(transportation plan).
93 123 Criteria and procedurer Interim
period reductions in ozone and CO areas
(TIP).
93.124 CrIteria and procedures. Interim
period reductions for ozone and CO
areas (project not from a plan and TIP).
93 125 Criteria and procedures Interim
period reductions for PM,,) and NO 2
areas (transportation plan).
93.126 Criteria and procedures: Interim
period reductions for PM,.) and NO 2
areas (TIP).
93.127 Criteria and procedures. Interim
period reductions for PMi 0 and NO 2
areas (project not from a plan and TIP).
93.128 Transition from the interim period
to the control strategy period.
93.129 Requirements for adoption or
approval of projects by other recipients
of funds designated under titlB23 U.S.C.
or the Federal Transit Act.
93 130 Procedures for determining regional
transportation.related emissions.
93.131 Procedures for determining
localized CO and PMio concentrations
(hot.spot analysis).
93.132 Using the motor vehicle emissions
budget in the applicable implementation
plan (or implementation plan
submission).
93 133 Enforceability of design concept and
scope and project-level mitigation arid
control measures.
93.134 Exempt projects.
93.135 Projects exempt from regional
emissions analyses.
93.136 Special provisions for
nonattainment areas which ae riot
required to demonstrate reasonable
further progress and attainment.
Authority: 42 U.S.C. 74 Ol—l 67 1p.
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Federal Register I Vol. 58. No. 225 / Wednesday, November 24, 1993 / Rules and Regulations 62235
Subpart A—Conformity to State or
Federal Implementation Plans of
Transportation Plans, Programs, and
Projects Developed, Funded or
Approved Under TItle 23 U.S.C. or the
Federal TransIt Act
§93.100 Purpose.
The purpose of this subpart is to
implement section 176(c) of the Clean
Air Act (CAA), as amended (42 U.S.C.
7401 et seq.). and the related
requirements of 23 U.S.C. 109(j). with
respect to the conformity of
transportation plans. programs. and
projects which are developed, funded,
or approved by the United Slates
Department of Transportation (DOT),
and by metropolitan planning
organizations (MPOs) or other recipients
of funds under title 23 U.S.C. or the
Federal Transit Act (49 U.S.C. 1601 et
seq.). This subpart sets forth policy,
criteria, and procedures for
demonstrating and assuring conformity
of such activities loan applicable
implementation plan developed
pursuant to section 110 and Part D of
the CAA.
§ 93.101 DellnItIons.
Terms used but not defined in this
subpart shall have the meaning given
them by the CAA, titles 23 and 49
U.S.C., other Environmental Protection
Agency (EPA) regulations, or other DOT
regulations, in that order of priority.
Applicable implementation plan is
defined in section 302(q) of the CAA
and means the portion (or portions) of
the implementation plan. or most recent
revision thereof, which has been
approved under section 110, or
promulgated under section 110(c), or
promulgated or approved pursuant to
regulations promulgated under section
301(d) and which implements the
relevant requirements of the CAA.
CAA means the Clean Air Act, as
amended.
Cause or contribute to a new violation
for a project means:
(1)To cause or contribute to a new
violation of a standard in the area
substantially affected by the project or
over a region which would otherwise
not be in violation of the standard
during the future pe riod in question, if
the project were not implemented, or
(2) To contribute to a new violation in
a manner that would increase the
frequency or severity of a new violation
of a standard in such area.
Control strategy implementation plan
revision is the applicable
implementation plan which contains
specific strategies for controlling the
emissions of and reducing ambient
levels of pollutants in order to satisfy
CAA requirements for demonstrations of
reasonable further progress and
attainment (CAA sections 182(b)(1).
182(c)(2)(A), 182(c)(2)(B), 187(a)(7),
189(a)(1)(B). and 189(b)(1)(A); and
sections 192(a) and 192(b), for nitrogen
dioxide).
Control strategy period with respect to
particulate matter less than 10 microns
in diameter (PM 1 (,), carbon monoxide
(CO). nitrogen dioxide (NO 2 ). and/or
ozone precursors (volatile organic
compounds and oxides of nitrogen).
means that period of time after EPA
approves control strategy
implementation plan revisions
containing strategies for controlling
PM,,, NO 2 . CO. andlor ozone, as
appropriate. This period ends when a
State submits and EPA approves a
request under section 107(d) of the CAA
for redesignation to an attainment area.
Design concept means the type of
facility identified by the project. e.g.,
freeway, expressway, arterial highway.
grade-separated highway, reserved right-
of-way rail transit, mixed-traffic rail
transit, exclusive busway, etc.
Design scope means the design
aspects which will affect the proposed
facility s impact on regional emissions,
usually as they relate to vehicle or
person carrying capacity and control.
e.g., number of lanes or tracks to be
constructed or added, length of project,
signalization, access control including
approximate number and location of
interchanges, preferential treatment for
high-occupancy vehicles, etc.
DOT means the United States
Department of Transportation.
EPA means the Environmental
Protection Agency.
Fl-I WA means the Federal Highway
Administration of DOT.
FHWA/FTA project, for the purpose of
this subpart, is any highway or transit
project which is proposed to receive
funding assistance and approval
through the Federal-Aid Highway
program or the Federal mass transit
program, or requires Federal Highway
Administration (FHWA) or Federal
Transit Administration (FTA) approval
for some aspect of the project, such as
connection to an interstate highway or
deviation from applicable design
standards on the interstate system.
FTA means the Federal Transit
Administration of DOT.
Forecast period with respect to a
transportation plan is the period
covered by the transportation plan
pursuant to 23 CFR part 450.
Highway project is an undertaking to
implement or modify a highway facility
or highway-related program. Such an
undertaking consists of all required
phases necessary for implementation.
For analytical purposes, it must be
defined sufficiently to:
(1) Connect logical termini and be of
sufficient length to address
environmental matters on a broad scope;
(2) Have independent utility or
significance. i.e., be usable and be a
reasonable expenditure even if no
additional transportation improvements
in the area are made; and
(3) Not restrict consideration of
alternatives for other reasonably
foreseeable transportation
improvements.
Horizon year is a year for which the
transportation plan describes the
envisioned transportation system
according to § 93.106.
Hot-spot analysis is an estimation of
likely future localized CO and PM,,,
pollutant concentrations and a
comparison of those concentrations to
the national ambient air quality
standards. Pollutant concentrations t(,
be estimated should be based on the
total emissions burden which may
result from the implementation of a
single, specific project, summed
together with future background
concentrations (which can be estimalea
using the ratio of future to current traffic
multiplied by the ratio of future to
current emission factors) expected in
the area. The total concentration must
be estimated and analyzed at
appropriate receptor locations in the
area substantially affected by the
project. Hot-spot analysis assesses
impacts on a scale smaller than the
entire nonattainment or maintenance
area, including, for example, congested
roadway intersections and highways or
transit terminals, and uses an air quality
dispersion model to determine the
effects of emissions on air quality.
Incomplete data area means any
ozone nonattainment area which EPA
has classified, in 40 CFR part 81, as an
incomplete data area.
Increase the frequency or severity
means to cause a location or regioll to
exceed a standard more often or to cause
a viola(ion at a greater concentration
than previously existed and/or would
otherwise exist during the future period
in question, if the project were not
implemented.
IS TEA means the Intermodal Surface
Transportation Efficiency Act of 1991.
Maintenance area means any
geographic region of the United States
previously designated nonattainment
pursuant to the CAA Amendments of
1990 and subsequently redesignated to
attainment subject to the requirement to
develop a maintenance plan under
section 175A of the CAA, as amended.
Maintenance period with respect to a
pollutant orpollutent precursor means
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62236 Federal Register I Vol. 58, No. 225 / Wednesday, November 24,
1993 1 Rules and Regulations
that period of time beginning when a
State submits and EPA approves a
request under section 107(d) of the CAA
for redesignation to an attainment area,
and lasting for 20 years, unless the
applicable implementation plan
specifies that the maintenance period
shall last for more than 20 years.
Metropolitan planning organization
(MPO) is that organization designated as
being responsible, together with the
State, for conducting the continuing,
cooperative, and comprehensive
planning process under 23 U.S.C. 134
and 49 U.S.C. 1607. It is the forum for
cooperative transportation decision-
making.
Milestone has the meaning given in
sections 182(g)(1) and 189(c) of the
CA.A. A milestone consists of an
emissions level and the date on which
it is required to be achieved.
Motor vehicle emissions budget is that
portion of the total allowable emissions
defined in a revision to the applicable
implementation plan (or in an
implementation plan revision which
was endorsed by the Governor or his or
her designee, subject to a public
hearing, and submitted to EPA. but not
yet approved by EPA) for a certain date
for the purpose of meeting reasonable
further progress milestones or
attainment or maintenance
demonstrations, for any criteria
pollutant or its precursors, allocated by
the applicable implementation plan to
highway and transit vehicles. The
applicable implementation plan for an
ozone nonattainment area may also
designate a motor vehicle emissions
budget for oxides of nitrogen (NOx) for
a reasonable further progress milestone
year if the applicable implementation
plan demonstrates that this NO budget
will be achieved with measures in the
implementation plan (as an
implementation plan must do for VOC
milestone requirements). The applicable
implementation plan for an ozone
nonattainment area includes a NO
budget if NO reductions are being
substituted for reductions in volatile
organic compounds in milestone years
required for reasonable further progress.
National ambient air quality
standards (NAAQS) are those standards
established pursuant to section 109 of
the CAA.
NEPA means the National
Environmental Policy Act of 1969, as
amended (42 U.S.C. 4321 et seq.).
NEPA process completion, for the
purposes of this subpart. with respect to
FHWA or FrA, means the point at
which there is a specific action to make
a determination that a project is
categorically excluded, to make a
Finding of No Significant Impact, or to
issue a record of decision on a Final
Environmental Impact Statement under
NEPA.
Nonattainment area means any
geographic region of the United States
which has been designated as
nonattainment under section 107 of the
CAA for any pollutant for which a
national ambient air quality standard
exists.
Not classified area means any carbon
monoxide nonattainment area which
EPA has not classified as either
moderate or serious.
Phase 11 of the interim period with
respect to a pollutant or pollutant
precursor means that period of time
after the effective date of this rule,
lasting until the earlier of the following:
submission to EPA of the relevant
control strategy implementation plan
revisions which have been endorsed by
the Governor (or his or her designee)
and have been subject to a public
hearing, or the date that the Clean Air
Act requires relevant control strategy
implementation plans to be submitted to
EPA. provided EPA has notified the
State, MPO, and DOT of the State’s
failure to submit any such plans. The
precise end of Phase II of the interim
period is defined in § 93.128.
Project means a highway project or
transit project.
Recipient of funds designated under
title 23 U.s.c. or the Federal Transit Act
means any agency at any level of State,
county, city, or regional government
that routinely receives title 23 U.S.C. or
Federal Transit Act funds to construct
FHWAJFI A projects, operate FHWA/
FTA projects or equipment, purchase
equipment, or undertake other services
or operations via contracts or
agreements. This definition does not
include private landowners or
developers, or contractors or entities
that are only paid for services or
products created by their own
employees.
Regionally significant project means a
transportation project (other than an
exempt project) that is on a facility
which serves regional transportation
needs (such as access to and from the
area outside of the region, major activity
centers in the region, major planned
developments such as new retail malls,
sports complexes, etc., or transportation
terminals as well as most terminals
themselves) and would normally be
included in the modeling of a
metropolitan area’s transportation
network, including at a minimum all
principal arterial highways and all fixed
guideway transit facilities that offer an
alternative to regional highway travel.
Rural transport ozone nonattainment
area means an ozone nonattainment
area that does not include, and is not
adjacent to, any part of a Metropolitan
Statistical Area or, where one exists, a
Consolidated Metropolitan Statistical
Area (as defined by the United States
Bureau of the Census) and is classified
under Clean Air Act section 182(h) as a
rural transport area.
Standard means a national ambient
air quality standard.
Submarginal area means any ozone
nonattainment area which EPA has
classified as submarginal in 40 CFR part
81.
Transit is mass transportation by bus,
rail, or other conveyance which
provides general or special service to
the public on a regular and continuing
basis. It does not include school buses
or charter or sightseeing services.
Transit project is an undertaking to
implement or modify a transit facility or
transit.related program; purchase transit
vehicles or equipment; or provide
financial assistance for transit
operations. It does not include actions
that are solely within the jurisdiction of
local transit agencies, such as changes
in routes, schedules, or fares. It may
consist of several phases. For analytical
purposes, it must be defined inclusively
enough to:
(1) Connect logical termini and be of
sufficient length to address
environmental matters on a broad scope;
(2) Have independent utility or
independent significance. i.e., be a
reasonable expenditure even if no
additional transportation improvements
in the area are made; and
(3) Not restrict consideration of
alternatives for other reasonably
foreseeable transportation
improvements.
Transitional area means any ozone
nonattainment area which EPA has
classified as transitional in 40 CFR part
81.
Transitional period with respect to a
pollutant or pollutant precursor means
that period of time which begins after
submission to EPA of the relevant
control strategy implementation plan
which has been endorsed by the
Governor (or his or her designee) and
has been subject to a public hearing.
The transitional period lasts until EPA
takes final approval or disapproval
action on the control strategy
implementation plan submission or
finds it to be incomplete. The precise
beginning and end of the transitional
period is defined in § 93.128.
Transportation control measure
(TCM) is any measure that is specifically
identified and committed to in the
applicable implementation plan that is
either one of the types listed in § 108 of
the CAA, or any other measure for the
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Federal Register / Vol. 58, No. 225 I Wednesday, November 24, 1993 I Rules and Regulations 62237
purpose of reducing emissions or
concentrations of air pollutants from
transportation sources by reducing
vehicle use or changing traffic flow or
congestion conditions. Notwithstanding
the above,vehicle technology-based,
fuel-based, and maintenance-based
measures which control the emissions
from vehicles under fixed traffic
conditions are not TCMs for the
purposes of this subpart.
Transportation improvement program
(TIP) means a staged, multiyear,
intermodal program of transportation
projects covering a metropolitan
planning area which is consistent with
the metropolitan transportation plan,
and developed pursuant to 23 CFR part
450.
Transportation plan means the
official intermodal metropolitan
transportation plan that is developed
through the metropolitan planning
process for the metropolitan planning
area, developed pursuant to 23 CFR part
450.
Transportation project is a highway
project or a transit project.
§ 93.102 ApplicabIlity.
(a) Action applicability. (1) Except as
provided for in paragraph (c) of this
section or § 93.134. conformity
determinations are required for:
(i) The adoption, acceptance, approval
or support of transportation plans
developed pursuant to 23 CFR part 450
0149 CFR part 613-by an MPO or DOT:
(ii) The adoption, acceptance,
approval or support of TIPs developed
pursuant to 23 CFR part 450 or 49 CFR
part 613 by an MPO or DOT; and
(iii) The approval, funding, or
implementation of FHWA/FTA projects.
(2) Conformity determinations are not
required under this rule for individual
projects which are not FHWA/FFA
projects. However, § 93.129 applies to
such projects if they are regionally
significant. -
(b) Geographic applicability. (1) The
provisions of this subpart shall apply in
all nonattainment and maintenance
areas for transportation-related criteria
pollutants for which the area is
designated nonattainment or has a
maintenance plan.
(2) The provisions of this subpart
apply with respect to emissions of the
following criteria pollutants: ozone,
carbon monoxide, nitrogen dioxide, and
particles with an aerodynamic diameter
less than or equal to a nominal 10
micrometers (PM 10 ).
(3) The provisions of this subpart
apply with respect to emissions of the
following precursor pollutants:
(1) Volatile organic compounds and
.iitrogen oxides in ozone areas (unless
the Administrator determines under
section 182(f) of the CAA that additional
reductions of NO would not contribute
to attainment);
(ii) Nitrogen oxides in nitrogen
dioxide areas; and
(iii) Volatile organic compounds,
nitrogen oxides, and PM 10 in PM 10 areas
if:
(A) During the interim period, the -
EPA Regional Administrator or the
director of the State air agency has made
a finding that transportation-related
precursor emissions within the
nonattainment area are a significant
contributor to the PM 10 nonattainment
problem and has so notified the MPO
and DOT; or
(B) During the transitional, control
strategy, and maintenance periods, the
applicable implementation plan (or
Implementation plan submission)
establishes a budget for such emissions
as part of the reasonable further
progress, attainment or maintenance
strategy.
(c) Limitations. (1) Projects subject to
this regulation for which the NEPA
process and a conformity determination
have been completed by FHWA or FTA
may proceed toward implementation
without further conformity
determinations if one of the following
major steps has occurred within the past
three years: NEPA process completion;
start of final design; acquisition of a
significant portion of the right-of-way;
or approval of the plans, specifications
and estimates. All phases of such
projects which were considered in the
conformity determination are also
included, if those phases were for the
purpose of funding, final design, right-
of-way acquisition, construction, or any
combination of these phases.
(2) A new conformity determination
for the project will be required if there
Is a significant change in project design
concept and scope, if a supplemental
environmental document for air quality
purposes is initiated, or if no major
steps to advance the project have
occurred within the past three years.
§ 93.103 PrIority.
When assisting or approving any
action with air quality-related
consequences, FHWA and FTA shall
give priority to the implementation of
those transportation portions of an
applicable implementation plan
prepared to attain and maintain the
NAAQS. This priority shall be
consistent with statutory requirements
for allocation of funds among States or
other jurisdictions.
§93.104 Frequency of conformity
determinations.
(a) Conformity determinations and
conformity redeterminations for
transportation plans, TIPs, and FHWA/
FTA projects must be made according to
the requirements of this section and the
applicable implementation plan.
(b) Transportation plans. (1) Each
new transportation plan must be found
to conform before the transportation
plan is approved by the MPO or
accepted by DOT.
(2) All transportation plan revisions
must be found to conform before the
transportation plan revisions are
approved by MPO or accepted by DOT,
unless the revision merely adds or
deletes exempt projects listed in
§ 93.134. The conformity determination
must be based on the transportation
plan and the revision taken as a whole.
(3) Conformity of existing
transportation plans must be
redeterminad within 18 months of the
following, or the existing confnrmity
determination will lapse:
(i) November 24, 1993;
(ii) EPA approval of an
implementation plan revision which:
(A) Establishes or revises a
transportation-related emissions budget
(as required by CAA sections 175A(a),
182(b)(1), 182(c)(2)(A). 182(c)(2)(B),
187(a)(7), 189(a)(1)(B), and 189(b)(1)(A);
and sections 192(a) and 192(b), for
nitrogen dioxide); or
(B) Adds, deletes, or changes TcMs;
and
(iii) EPA promulgation of an
implementation plan which establishes
or revises a transportation-related
emissions budget or adds, deletes, or
changes TCMs.
(4) In any case, conformity
determinations must be made no less
frequently than every three years, or the
existing conformity determination will
lapse.
(c) Transportation improvement
programs. (1) A new TIP must be found
to conform before the TIP is approved
by the MPO or accepted by DOT.
(2) A TIP amendment requires a new
conformity determination for the entire
‘TIP before the amendment is approved
by the MPO or accepted by DOT, unless
the amendment merely adds or deletes
exempt projects listed in § 93.134.
(3) After an MPO adopts a new or
revised transportation plan, conformity
must be redetermined by the MPO and
DOT within six months from the date of
adoption of the plan, unless the new or
revised plan merely adds or deletes
exempt projects listed in § 93.134.
Otherwise, the existing conformity
determination for the TIP will lapse.
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62238 Federal Register -/ Vol. 58, No. 225 / Wednesday, November 24, 1993 F Rules and Regulations
(4) In any case, conformity
determinations must be made no less
frequently than every three years or the
existing conformity determination will
lapse.
(d) Projects. FHWA/FTA projects
must be found to con form before they
are adopted, accepted, approved, or
funded. Conformity must be
redetermined for any FHWA/FTA
project if none of the following major
steps has occurred within the past three
years: NEPA process completion; start of
final design; acquisition of a significant
portion of the right-of-way; or approval
of the plans, specifications and
estimates.
§ 93.105 ConsultatIon.
(a) Genera). The implementation plan
revision required under § 51.396 of this
chapter will include procedures for
interagency consultation (Federal, State,
and local), and resolution of conflicts.
(1) The implementation plan revision
will include procedures to be
undertaken by MPOs, State departments
of transportation, and DO’F with State
and local air quality agencies and EPA
before making conformity
determinations, and by State and local
air agencies and EPA with MPOs, State
departments of transportation, and DOT
in developing applicable
implementa’tion plans.
(2) Before the implementation plan
revision is approved by EPA, MPOs and
State departments of transportation
before making conformity
determinations must provide reasonable
opportunity for consultation with State
air agencies, local air quality and
transportation agencies, DOT, and EPA.
including consultation on the issues
described in paragraph (c)(1) of this
section.
(b) interagency consultation
procedures: Generalfactors. (i) States
will provide in the implementation plan
well-defined consultation procedures
whereby representatives of the MPOs.
State and local air quality planning
agencies, State and local transportation
agencies, and other organizations with
responsibilities for developing,
submitting, or implementing provisions
of an implementation plan required by
the CAA must consult with each other
and with local or regional offices of
EPA, FHWA. and F A on the
development of the implementation
plan, the transportation plan. the TIP,
and associated conformity
determinations.
(2) Interagency consultation
procedures will include at a minimum
the general factors listed below and the
specific processes in paragraph (c) of
this section:
(I) The roles and responsibilities
assigned to each agency at each stage in
the implementation plan development
process and the transportation planning
process. including technical meetings;
(ii) The organizational level of regular
consultation;
(iii) A process for circulating (or
providing ready access to) draft
documents and supporting materials for
comment before Formal adoption or
publication;
(iv) The frequency of, or process for
convening, consultation meetings and
responsibilities for establishing meeting
agendas;
(v) A process for responding to the
significant comments of involved
agencies; and
(vi) A process for the development of
a list of the TCMs which are in the
applicable implementation plan.
(c) Interagency consultation
procedures: Specific processes.
Interagency consultation procedures
will also include the following specific
processes:
(1) A process involving the MPO.
State and local air quality planning
agencies. State and local transportation
agencies, EPA, and DOT for the
following:
(I) Evaluating and choosing a model
(or models) and associated methods and
assumptions to be used in hot-spot
analyses and regional emissions
analyses;
(ii) Determining which minor arterials
and other transportation projects should
be considered “regionally significant”
for the purposes of regional emissions
analysis (in addition to those
functionally classified as principal
arterial or higher or fixed guideway
systems or extensions that offer an
alternative to regional highway travel).
and which projects should be
considered to have a significant change
in design concept and scope from the
transportation plan or TIP;
(iii) Evaluating whether projects
otherwise exempted from meeting the
requirements of this subpart (see
§ 93.134 and 93.135) should be treated
as non-exempt in cases where potential
adverse emissions impacts may exist for
any reason;
(iv) Making a determination, as
required by § 93.113(c)(1), whether past
obstacles to implementation of TCMs
which are behind the schedule
established in the applicable
implementation plan have beeii
identified and are being overt.ome, ana
whether State and local agencies with
influence over approvals or funding for
TCMs are giving maximum priority to
approval or funding for TcMs. This
process shall also consider whether
delays in TCM implementation
necessitate revisions to the applicable
implementation plan to remove T Ms
or substitute TcMs or other emission
reduction measures;
(v) Identifying. as required by
§ 93.131(d). projects located at sites in
PM 1 1 ) nonattainment areas which have
vehicle and roadway emission and
dispersion characteristics which are
essentially identical to those at sites
which have violations verified by
monitoring. and therefore require
quantitative PM 10 hot-spot analysis; and
(vi) Notification of transportation plan
or TIP revisions or amendments which
merely add or delete exempt projects
listed in § 93.134.
(2) A process involving the MPO and
State and local air quality planning
agencies and transportation agencies for
the followin :
(i) Evaluating events which will
trigger new conformity determinations
in addition to those triggering events
established in § 93.104; and
(ii) Consulting on emissions analysis
for transportation activities which cross
the borders of MPOs or nonattainment
areas or air basins.
(3) Where the metropolitan planning
area does not include the entire
nonattainment or maintenance area, a
process involving the MPO and the
State department of transportation for
cooperative planning and analysis for
purposes of determining conformity of
all projects outside the metropolitan
area and within the nonattainment or
maintenance area.
(4) A process to ensure that plans for
construction of regionally significant
projects which are not FHWA/FTA
projects (including projects for which
alternative locations, design concept
and scope, or the no-build option are
still being considered), including those
by recipients of funds designated under
title 23 U.S.C. or the Federal Transit
Act, are disclosed to the MPO on a
regular basis, and to ensure that any
changes to those plans are immediately
disclosed;
(5) A process involving the MPO and
other recipients of funds designated
under title 23 U.S.C. or the Federal
Transit Act for assuming the location
and design concept and scope of
projects which are disclosed to the MPO
as required by paragraph (c)(4) of this
section but whose sponsors have not yet
decided these features, in sufficient
detail to perform the regional emissions
analysis according to the requirements
of § 93.130.
(6) A process for consulting on the
design, schedule, and funding of
research and data collection efforts and
regional transportation model
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Federal Register I Vol. 58, No. 225 I Wednesday. November 24. 1993 / Rules and Regulations 62239
development by the MPO (e.g.,
household/travel transportation
surveys).
(7) A process (including Federal
agencies) for providing final documents
(including applicable implementation
plans and implementation plan
revisions) and supporting information to
each agency after approval or adoption.
(d) Resolving conflicts. Conflicts
among State agencies or between State
agencies and an MPO shall be escalated
to the Governor if they cannot be
resolved by the heads of the Involved
agencies. The State air agency has 14
calendar days to appeal to the Governor
after the State DOT or MPO has notified
the State air agency head of the
resolution of his or her comments. The
implementation plan revision required
by § 51.396 of this chapter shall define
the procedures for starting of the 14-day
clock. If the StaLe air agency appeals to
the Governor, the final conformity
determination must have the
concurrence of the Governor. If the State
air agency does not appeal to the
Governor within 14 days, the MPO or
State department of transportation may
proceed with the final conformity
determination. The Governor may
delegate his or her role in this process,
but not to the head or staff of the State
or local air agency, State department of
transportation. State transportation
commission or board, or an MPO.
(e) Public consultation procedures.
Affected agencies making conformity
determinations on transportation plans,
programs, and projects shall establish a
proactive public involvement process
which provides opportunity for public
review and comment prior to taking
formal action on a conformity
determination for all transportation
plans and TIPs, consistent with the
requirements of 23 CFR part 450. In
addition, these agencies must
specifically address in writing all public
comments that known plans for a
regionally significant project which is
not receiving FHWA or FTA funding or
approval have not been properly
reflected in the emissions analysis
supporting a proposed conformity
finding for a transportation plan or TIP.
These agencies shall also provide
opportunity for public involvement in
conformity determinations for projects
where otherwise required by law.
§93.106 Content of transportation plans.
(a) Transportation plans adopted after
January 1. 2995 in serious, severe, or
extreme ozone nonattainment areas and
in serious carbon monoxide
nonottainment areas. The transportation
plan must specifically describe the
transportation system envisioned for
certain future years which shall be
called horizon years.
(1) The agency or organization
developing the transportation plan may
choose any years to be horizon years.
subject to the following restrictions:
(i) Horizon years may be no more than
10 years apart.
(ii) The first horizon year may be no
more then 10 years from the base year
used to validate the transportation
demand planning model.
(iii) If the attainment year is in the
time span of the transportation plan, the
attainment year must be a horizon year.
(iv) The last horizon year must be the
last year of the transportation plan’s
forecast period.
(2) For these horizon years:
(i) The transportation plan shall
quantify and document the
demographic and employment factors
influencing expected transportation
demand, including land use forecasts, in
accordance with implementation plan
provisions and § 93.105;
(ii) The highway and transit system
shall be described In terms of the
regionally significant additions or
modifications to the existing
transportation network which the
transportation plan envisions to be
operational in the horizon years.
Additions and modifications to the
highway network shall be sufficiently
identified to indicate intersections with
existing regionally significant facilities,
and to determine their effect on route
options between transportation analysis
zones. Each added or modified highway
segment shall also be sufficiently
identified in terms of its design concept
and design scope to allow modeling of
travel times under various traffic
volumes, consistent with the modeling
methods for area-wide transportation
analysis in use by the MPO. Transit
facilities, equipment, and services
envisioned for the future shall be
Identified in terms of design concept,
design scope, and operating policies
sufficiently to allow modeling of their
transit ridership. The description of
additions and modifications to the
transportation network shall also be
sufficiently specific to show that there
is a reasonable relationship between
expected land use and the envisioned
transportation system; and
(iii) Other future transportation
policies, requirements, services, and
activities, including intermodal
activities, shall be described.
(b) Moderate areas reclassified to
serious. Ozone or CO nonattainment
areas which are reclassified from
moderate to serious must meet the
requirements of paragraph (a) of this
section within two years from the date
of reclassification.
(c) Transportation plans for other
areas. Transportation plans for other
areas must, meet the requirements of
paragraph (a) of this section at least to
the extent it has been the previous
practice of the MPO to prepare plans
which meet those requirements.
Otherwise, transportation plans must
describe the transportation system
envisioned for the future specifically
enough to allow determination of
conformity according to the criteria and
procedures of 93.109 through 93.127.
Id) Savings.The requirements of this
section supplement other requirements
of applicable law or regulation
governing the format or content of
transportation plans.
§ 93.107 Relationship of transportation
plan and TIP conformity with the NEPA
process.
The degree of specificity required in
the transportation plan and the specific
travel network assumed for air quality
modeling do not preclude the
consideration of alternatives in the
NEPA process or other project
development studies. Should the NEPA
process result in a project with design
concept and scope significantly
different from that in the transportation
plan or TIP, the project must meet the
criteria in §S93.109 through 93.127 for
projects not from a TIP before NEPI
process corn pletion.
§93.108 Fiscal constraints for
transportation plans and TIPs.
Transportation plans and TIPs must
be fiscally constrained consistent with
DOT’s metropolitan planning
regulations at 23 CFR part 450 in order
to be found in conformity.
§ 93.109 Criteria and procedures for
determining conformity of transportation
plans, programs, and projects. General.
(a) In order to be found to conform,
each transportation plan. program. and
FHWA/FTA project must satisfy the
applicable criteria and procedures in
§ 93.110 through 93.127 as listed in
Table I in paragraph (b) of this section,
and must comply with all applicable
conformity requirements of
implementation plans and of court
orders for the area which pertain
specifically to conformity determination
requirements. The criteria far making
conformity determinations differ based
on the action under review
(transportation plans, TIPs, and FHWA/
PTA projects), the time period in which
the conformity determination is made,
and the relevant pollutant.
(b) The following table indicates the
criteria and procedures in § 93.110
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02240 Federal Register / Vol. 58,
No. 225 I Wednesday, November 24, 1993 / Rules and Regulations
through 93.127 which apply for each
action in each time period.
TABLE 1 .—CONF0RMITY CRITERIA
Action Cnteria
All Periods
Transportation Plan ...
TIP .
Project (From a con-
forming plan and
TIP).
Project (Not from a
conlorming plan
and TIP).
§ 93.110.93.111.
93.112.93.113(b).
§ 93.11O,93.lll.
93.112. 93.113(c).
§ 93.110, 93.111,
93.112, 93.114,
93.115,93.116,
93.11?.
§ 93.11O, 93.111.
93.112, 93.113(d).
93.114,93.116,
93.117.
Phase II of the
Interim Period
Transportation Plan ...
TIP
Project (From a con-
forming plan and
TIP).
Project (Not from a
conforming plan
and TIP).
§ 93.122. 93.125.
§ 93.123, 93.126.
§93.121.
§93.121. 93.124,
93.127.
Transitional Period
Transportation Plan ...
TIP .. ....
Project (From a con-
forming plan and
TIP).
Project (Not from a
conforming plan
and_TIP).
§ 93.1 18, 93.122,
93.125.
§ 93.119.93.123.
93.126.
§ 93.121.
§ 93.120, 93.121,
93.124, 93.127
Control Strategy and
Maintenance Pedods
Transportation Plan ...
§93,118.
TIP ......
§93.119.
Project (From a con-
No additional criteria.
forming plan and
TIP).
Project (NOt from a
§93.120.
conforming plan
and TIP).
93.110 The conformity determination must
be based on the latest planning
assumptions.
93.111 The conformity determination must
be based on the latest emission
estimation model available.
93.112 The MPO must make the conformity
determination according to the
consultation procedures of this rule and
the implementation plan revision
required by § 51 396 of this chapter.
93.113 The transportation plan, TIP, or
F}1WA/FTA project which is not from a
conforming plan and TIP must provide
for the timely implementation of TCMs
from the applicable implementation
plan.
93.114 There must be a currently
conforming transportation plan and
currently conforming TIP at the time of
project approval.
93.115 The project must come from a
conforming transportation plan and
program.
93.116 The FHWA/FTA project must not
cause or contribute to any new localized
CX) or PM 10 violations or increase the
frequency or severity of any existing CX)
or PM 10 violations in CO and PM, o
nonattainment and maintenance areas.
93.117 The FHWA/FTA project must
comply with PM 10 control measures in
the applicable implementation plan.
93.118 The transportation plan must be
consistent with the motor vehicle
emissions budget(s) in the applicable
implementation plan or implementation
plan submission.
93.119 The TIP must be consistent with the
motor vehicle emissions budget(s) in the
applicable implementation plan or
implementation plan submission.
93.120 The project which Is not from a
conforming transportation plan and
conforming TIP must be consistent with
the motor vehicle emissions budget(s) in
(he applicable implementation plan or
implementation plan submission.
93.121 The FHWA/FTA project must
eliminate or reduce the severity and
number of localized CO violations in the
area substantially affected by the project
(in CO nonatlainment areas).
93.122 The transportation plan must
contribute to emissions reductions in
ozone and CO nonattainment areas.
93.123 The TIP must contribute to
emissions reductions in ozone and CO
nonattainment areas.
93.124 The project which Is not from a
conforming transportation plan and TIP
must contribute to emissions reductions
in ozone and CO nonattainment areas.
93.125 The transportation plan must
contribute to emission reductions or
must not increase emissions in PM 10 and
NO 2 nonattainment areas.
93.126 The TIP must contribute to emission
reductions or must not Increase
emissions in PM 10 and NO 2
nonattainment areas.
93.127 The project which is not from a
conforming transportation plan and TIP
must contribute to emission reductions
or must not increase emissions In PM 10
and NO 2 nonattainment areas.
§ 93.110 CrIteria and procedures: Latest
planning assumptions.
(a) The conformity determination,
with respect to all other applicable
criteria in § 93.111 through 93.127.
must be based upon the most recent
planning assumptions in force at the
time of the conformity determination.
This criterion applies during all periods.
The conformity determination must
satisfSr the requirements of paragraphs
(b) through (I) of this section.
(b) Assumptions must be derived from
the estimates of cunent and future
population. employment, travel, and
congestion most recently developed by
the MPO or other agency authorized to
make such estimates and approved by
the MPO. The conformity determination
must also be based on the latest
assumptions about current and future
background concentrations.
(c) The conformity determination for
each transportation plan and TIP must
discuss how transit operating policies
(including fares and service levels) and
assumed transit ridership have changed
since the previous conformity
determination.
(d) The conformity determination
must include reasonable assumptions
about transit service and increases in
transit fares and road and bridge tolls
over time.
(e) The conformity determination
must use the latest existing information
regarding the effectiveness of the TC!vls
which have already been implemented.
(I) Key assumptions shall be specified
and included in the draft documents
and supporting materials used for the
interagency and public consultation
required by §93.105.
§ 93.111 CriterIa and procedures: Latest
emissions model.
(a) The conformity determination
must be based on the latest emission
estimation model available. This
criterion applies during all periods. It is
satisfied if the most current version of
the motor vehicle emissions model
specified by EPA for use in the
preparation or revision of
implementation plans in that State or
area is used for the conformity analysis.
Where EMFAC Is the motor vehicle
emissions model used in preparing or
revising the applicable implementation
plan, new versions must be approved by
EPA before they are used in the
conformity analysis.
(b) EPA will consult with DOT to
establish a grace period following the
specification of any new model.
(1) The grace period will be no less
than three months and no more than 24
months after notice of availability is
published in the Federal Register.
(2) The length of the grace period will
depend on the degree of change in the
model and the scope of re-planning
likely to be necessary by MPOs in order
to assure conformity. If the grace period
will be longer than three months. EPA
will announce the appropriate grace
period in the Federal Register.
(c) Conformity analyses for which the
emissions analysis was begun during
the grace period or before the Federal
Register notice of availability of the
latest emission model may continue to
use the previous version of the model
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Federal Register / Vol. 58, No. 225 I Wednesday, November 24, 1993 I Rules and Regulations 62241
for transportation plans and TIPs. The
previous model may also be used for
projects if the analysis was begun
during the grace period or before the
Federal Register notice of availability.
provided no more than three years have
passed since the draft environmental
document was Issued.
§ 93.112 CrIteria and procedures:
Consultation.
The MPO must make the conformity
determination according to the
consultation procedures in this rule and
In the implementation plan revision
required by § 51.396 of this chapter, and
according to the public involvement
procedures established by the MPO in
compliance with 23 CFR part 450. This
criterion applies during all periods.
Until the implementation plan revision
required by § 51.396 of this chapter is
approved by EPA. the conformity
determination must be made according
to the procedures in % 93.105(a)(2) and
93.105(e). Once the implementation
plan revision has been approved by
EPA, this criterion is satisfied if the
conformity determination is made
consistent with the implementation
plan’s consultation requirements.
§ 93.113 CrIteria and procedures: Timely
“nolementatlon of TCMs.
(a) The transportation plan, TIP, or
FHWAJFTA project which is not from a
conforming plan and TIP must provide
for the timely implementation of TCMs
from the applicable implementation
plan. This criterion applies during all
periods.
(b) For transportation plans, this
criterion is satisfied if the following two
conditions are met:
(1) The transportation plan, in
describing the envisioned future
transportation system, provides for the
timely completion or implementation of
all TCMs in the applicable
implementation plan which are eligible
for funding under title 23 U.S.C. or the
Federal Transit Act, consistent with
schedules included in the applicable
implementation plan.
(2) Nothing in the transportation plan
interferes with the implementation of
any TCM in the applicable
implementation plan.
(c) For TIPs, this criterion is satisfied
if the following conditions are met:
(1) An examination of the specific
steps and funding source(s) needed to
fully implement each TCM indicates
that TCMs which are eligible for
funding under title 23 U.S.C. or the
Federal Transit Act are on or ahead of
the schedule established in the
applicable implementation plan, or, if
such TCMs are behind the schedule
established in the applicable
implementation plan, the MPO and
DOT have determined that past
obstacles to implementation of the
TCMs have been identified and have
been or are being overcome, and that alt
State and local agencies with influence
over approvals or funding for TCMs are
giving maximum priority to approval or
funding of TCMs over other projects
within their control, including projects
in locations outside the nonattainment
or maintenance area.
(2) IITCMs in the applicable
implementation plan have previously
been programmed for Federal funding
but the funds have not been obligated
and the TCMs are behind the schedule
in the implementation plan, then the
TIP cannot be found to conform if the
funds Intended for those TCMs are
reallocated to projects in the TIP other
than TCMs, or if there are no other
TCMs in the TIP, if the funds are
reallocated to projects in the TIP other
than projects which are eligible for
Federal funding under ISTEA’s
Congestion Mitigation and Air Quality
Improvement Program.
(3) Nothing In the TIP may interfere
with the implementation of any TCM in
the applicable implementation plan.
(d) For FHWA/FTA projects which
are not from a conforming
transportation plan and TIP, this
criterion is satisfied if the pr.oject does
not interfere with the implementation of
any TCM in the applicable
implementation plan.
§ 93.114 CriterIa and procedures:
Currently conforming transportation plan
and 1W.
There must be a currently conforming
transportation plan and currently
conforming TIP at the time of project
approval. This criterion applies during
all periods. It is satisfied if the current
transportation plan and TIP have been
found to conform to the applicable
Implementation plan by the MPO and
DOT according to the procedures of this
subpart. Only one conforming
transportation plan or TIP may exist in
an area at any time; conformity
determinations of a previous
transportation plan or TIP expire once
the current plan or TIP is found to
conform by DOT. The conformity
determination on a transportation plan
or TIP will also lapse if conformity is
not determined according to the
frequency requirements of § 93.104.
§ 93.115 CrIteria and procedures: Projects
from a plan and TIP.
(a) The project must come from a
conforming plan and program. This
criterien applies during all periods. If
this criterion is not satisfied, the project
must satisfy all criteria in Table I for a
project not from a conforming
transportation plan and TIP. A project is
considered to be from a conforming
transportation plan if it meets the
requirements of paragraph (b) of this
section and from a conforming program
if it meets the requirements of paragraph
(c) of this section.
(b) A project is considered to be from
a conforming transportation plan if one
of the following conditions applies:
(i) For projects which are required to
be identified in the transportation plan
in order to satisfy § 93.106, the project
is specifically included in the
conforming transportation plan and the
project’s design concept and scope have
not changed significantly from those
which were described in the
transportation plan, or in a manner
which would significantly impact use ol
the facility; or
(2) For projects which are not
required to be specifically identified in
the transportation plan, the project is
identified in the conforming
transportation plan, or is consistent
with the policies and purpose of the
transportation plan and will not
interfere with other projects specifically
included in the transportation plan.
(c) A project is considered to be from
a conforming program if the following
conditions are met:
(1) The project is included in the
conforming TIP and the design concept
and scope of the project were adequate
at the time of the TIP conformity
determination to determine its
contribution to the TIP’s regional
emissions and have not changed
significantly from those which were
described in the TIP, or in a manner
which would significantly impact use of
the facility; and
(2) lIthe TIP describes a project
design concept and scope which
includes project.level emissions
mitigation or control measures, written
commitments to implement such
measures must be obtained from the
project sponsor and/or operator as
required by § 93.133(a) in order for the
pro jeét to be considered from a
conforming program. Any change in
these mitigation or control measures
that would significantly reduce their
effectiveness constitutes a change in the
design concept and scope of the project.
§93.116 CrIteria and procedures:
Localized CO and PM 10 violations (hot
spots).
(a) The FHWA/FTA project must not
cause or contribute to any new localized
CO or PM ,o violations or increase the
frequency or severity of any existing CO
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62242 Federal Register / Vol. 58. No. 225 / Wednesday. November 24, 1993 I Rules and Regulations
or PM 10 violations in CO and PM 1 1 )
nonattainment and maintenance areas.
This criterion applies during all periods.
This criterion is satisfied if it is
demonstrated that no new local
violations will be created and the
severity or number of existing violations
will not be increased as a result of the
project.
(b) The demonstration must be
performed according to the
requirements of § 93.1O5(c)(l)(i) and
93.131.
(c) For projects which are not of the
type identified by § 93.131(a) or
§ 93.131(d). this criterion may be
satisfied if consideration of local factors
clearly demonstrates that no local
violations presently exist and no new
local violations will be created as a
result of the project. Otherwise, in CO
nonattainment and maintenance areas, a
quantitative demonstration must be
performed according to the
requirements of § 93.131(b).
§ 93.117 CrIteria and procedures:
Compliance with PM 0 control measures.
The FHWA/FFA project must comply
with PM 11 , control measures in the
applicable implementation plan. This
criterion applies during all periods. It is
satisfied if control measures (for the
purpose of limiting PM emissions
from the construction activities and/or
normal use and operation associated
with the project) contained in the
applicable implementation plan are
included in the final plans.
specifications. and estimates for the
project.
§93.118 CrIteria and procedures: Motor
vehicle emissions budget (transportation
plan).
(a) The transportation plan must be
consistent with the motor vehicle
emissions budget(s) in the applicable
implementation plan (or
implementation plan submission). This
criterion applies during the transitional
period and the control strategy and
maintenance periods, except as
provided in § 93.136. This criterion may
be satisfied if the requirements in
paragraphs (b) and (c) of this section are
met:
(b) A regional emissions analysis shall
be performed as follows:
(1) The regional analysis shall
estimate emissions of any of the
following pollutants and pollutant
precursors for which the area is in
nonattainment or maintenance and for
which the applicable implementation
plan (or implementation plan
submission) establishes an emissions
budget:
(i) VOC as an ozone precursor;
(ii) NO. as an ozone precursor. unless
the Administrator determines that
additional reductions of NO would not
contribute to attainment;
(iii) CO:
(iv) PM 10 (and its precursors VOC
and/or NO. if the applicable
implementation plan or implementation
plan submission identifies
transportation.related precursor
emissions within the nonattainment
area as a significant contributor to the
PM 10 nonattainment problem or
establishes a budget for such emissions);
or
(v) NO. (in NO 2 nonattainment or
maintenance areas);
(2) The regional emissions analysis
shall estimate emissions from the entire
transportation system, including all
regionally significant projects contained
in the transportation plan and all other
regionally significant highway and
transit projects expected in the
nonattainment or maintenance area in
the timeframe of the transportation plan;
(3) The emissions analysis
methodology shall meet the
requirements of § 93.130;
(4) For areas with a transportation
plan that meets the content
requirements of § 93.106(a). the
emissions analysis shall be performed
for each horizon year. Emissions in
milestone years which are between the
horizon years may be determined by
interpolation; and
(5) For areas with a transportation
plan that does not meet the content
requirements of § 93.106(a), the
emissions analysis shall be performed
for any years in the time span of the
transportation plan provided they are
not more than ten years apart and
provided the analysis is performed for
the last year of the plan’s forecast
period. If the attainment year is in the
time span of the transportation plan, the
emissions analysis must also be
performed for the attainment year.
Emissions in milestone years which are
between these analysis years may be
determined by interpolation.
(c) The regional emissions analysis
shall demonstrate that for each of the
applicable pollutants or pollutant
precursors in paragraph (b)(i) of this
section the emissions are loss than or
equal to the motor vehicle emissions
budget as established in the applicable
implementation plan or implementation
plan submission as follows:
(1) If the applicable implementation
plan or implementation plan
submission establishes emissions
budgets for milestone years. emissions
in each milestone year are less than or
equal to the motor vehicle emissions
budget established for that year;
(2) For nonattainment areas,
emissions in the attainment year are less
than or equal to the motor vehicle
emissions budget established in the
applicable implementation plan or
implementation plan submission for
that year;
(3) For nonattainment areas,
emissions in each analysis or horizon
year after the attainment year are less
than or equal to the motor vehicle
emissions budget established by the
applicable implementation plan or
implementation plan submission for the
attainment year. If emissions budgets
are established for years after the
attainment year. emissions in each
analysis year or horizon year must be
less than or equal to the motor vehicle
emissions budget for that year, if any, or
the motor vehicle emissions budget for
the most recent budget year prior to the
analysis year or horizon year; and
(4) For maintenance areas, emissions
in each analysis or horizon year are less
than or equal to the motor vehicle
emissions budget established by the
maintenance plan for that year, if any,
or the emissions budget for the most
recent budget year prior to the analysis
or horizon year.
§ 93.119 CrIteria and procedures: Motor
vehicle emissions budget (TIP).
(a) The TIP must be consistent with
the motor vehicle emissions budget(s) in
the applicable implementation plan (or
implementation plan submission). This
criterion applies during the transitional
period and the control strategy and
maintenance periods, except as
provided in § 93.136. This criterion may
be satisfied if the requirements in
paragraphs (b) and (c) of this section are
met.
(b) For areas with a conforming
transportation plan that fully meets the
content requirements of § 93.106(a). this
criterion may be satisfied without
additional regional analysis if:
(1) Each program year of the TIP is
consistent with the Federal funding
which may be reasonably expected for
that year, and required State/local
matching funds and funds for State/
local funding-only projects are
consistent with the revenue sources
expected over the same period; and
(2) The ‘FIP is consistent with the
conforming transportation plan such
that the regional emissions analysis
already performed for the plan applies
to the TIP also. This requires a
demonstration that: -
(i) The TIP contains all projects which
must be started in the TIP’s timeframe
in order to achieve the highway and
transit system envisioned by the
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Federal Re jsterl Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Reguiations 62243
transportation pl in in each of its
horizon years;
(ii) All TIP projects which are
regionally significant are part of the
specific highway or transit system
envisioned in the transportation plan’s
horizon years; and
(iii) The design concept and scope of
each regionally significant project in the
TIP is not significantly different from
that described in the transportation
plan.
(3) If the requirements in paragraphs
(bRi) and (b}(2) of this section are not
met, then:
(i) The TIP may be modified to meet
those requirements; or
(ii) The transportation plan must be
revised so that the requirements in
paragraphs (b)(1) and (bllZ) of this
section are met. Once the revised plan
has been found to conform, this
criterion is met for the TIP with no
additional analysis except a
demonstration that the TIP meets the
requirements of paragraphs (b)(1) and
(bX2) of this section.
(C) For areas with a transportation
plan that does not meet the content
requirements of § 93.106(a), a regional
emissions analysis must meet all of the
following requirements:
(I) The regional emissions analysis
shall estimate emissions from tLp entire
transportation system, Including all
projects contained in the proposed TIP,
the transportation plan, and all other
regionally significant highway and
transit projects expected in the
nonattainment or maintenance area in
the timeframe of the transportation plan:
(2) The analysis methodology shall
meet the requirements of § 93.130(c);
and
(3) The regional analysis shall satisfy
the requirements of 93.118(b)(1),
93.118(b)(5). and 93.118(c).
§93.120 CriterIa and procedures: Motor
vehicle emissions budget (project not from
a plan and TIP).
(a) The project which is not from a
conforming transportation plan and a
conforming TIP must be consistent with
the motor vehicle emissions budget(s) in
the applicable implementation plan (or
Implementation plan submission). This
criterion applies during the transitional
period and the control strategy and
maintenance periods, except as
provided in §93.136. It is satisfied if
emissions from the implementation of
the project, when considered with the
emissions from the projects in the
conforming transportation plan and TIP
and all other regionally significant
projects expected in the area, do not
exceed the motor vehicle emissions
budget(s) In the applicable
implementation plan (or
implementation plan submission).
(b) For areas with a conforming
transportation plan that meets the
content requirements of § 93.106(a):
(1) This criterion may be satisfied
without additional regional analysis if
the project is included in the
conforming transportation plan, even if
it is not specifically included in the
latest conforming TIP. This requires a
d’emonstration that
(i) Allocating funds to the project will
not delay the implementation of projects
in the transportation plan or TIP which
are necessary to achieve the highway
and transit system envisioned by the
transportation plan in each of its
horizon years;
(ii) The project is not regionally
significant or is part of the specific
highway or transit system envisioned in
the transportation plan’s horizon years;
and
(iii) The design concept and scope of
the project is not significantly different
from that described in the transportation
plan.
(2) If the requirements in paragraph
(bH1) of this section are not met, a
regional emissions analysis must be
performed as follows:
(i) The analysis methodology shall
meet the requirements of § 93.130;
(ii) The analysis shall estimate
emissions from the transportation
system, Including the proposed project
and all other regionally significant
projects expected in the nonattainment
or maintenance area in the timeframe of
the transportation plan. The analysis
must include emissions from all
previously approved projects which
were not from a transportation plan and
TIP; and
(iii) The emissions analysis shall meet
the requirements ofgg93.118(b)(1).
93.118(b)(4). and 93.118(c).
(c) For areas with a transportation
plan that does not meet the content
requirements org 93.106(a). a regional
emissions analysis must be performed
for the project together with the
conforming TIP and all other regionally
significant projects expected in the
nonattainment or maintenance area.
This criterion may be satisfied if:
(1) The analysis methodology meets
the requirements of §93.130(c);
(2) The analysis estimates emissions
from the transportation system.
including the proposed project, and all
other regionally significant projects
expected in the nonattainment or
maintenance area in the timefrarne of
the transportation plan; and
(3) The regional analysis satisfies the
requirements of § 93.1 18(b)(1),
93.118(b)(5), and 93.118(c).
§93.121 CriterIa and procedures:
Localized CO violations (hot spots) In the
Interim period.
(a) Each FHWA/FTA project must
eliminate or reduce the severity and
number of localized CO violations in the
area substantially affected by the project
(in CO nonattainment areas). This
criterion applies during the interim and
transitional periods only. This criterion
is satisfied with respect to existing
localized CO violations if it is
demonstrated that existing localized CO
violations will be eliminated or reduced
in severity and number as a result of the
project.
(b) The demonstration must be
performed according to the
requirements of § 93.105(c)(1)(i) and
93.131.
(c) For projects which are not of the
type identified by § 93.131(a). this
criterion may be satisfied if
consideration of local factors clearly
demonstrates that existing CO violations
will be eliminated or reduced in
severity and number. Otherwise, a
quantitative demonstration must be
performed according to the
requirements of §93.131(b).
§93.122 Criteria and procedures: Interim
period reductions In ozone and CO areas
(transportation plan).
(a) A transportation plan must
contribute to emissions reductions in
ozone and CO nonattainment areas. This
criterion applies during the interim and
transitional periods only, except as
otherwise provided in § 93.136. It
applies to the net effect on emissions of
all projects contained in a new or
revised transportation plan. This
criterion may be satisfied ifs regional
emissions analysis is performed as
described in paragraphs (b) through (0
of this section.
(b) Determine the analysis years for
which emissions are to be estimated.
Analysis years shall be no more than ten
years apart. The first analysis year shall
be no later than the first milestone year
(1995 in CO nonattainment areas and
1996 in ozone nonattainznent areas).
The second analysis year shall be either
the attainment year for the area, or if the
attainment year is the same as the first
analysis year or earlier, the second
analysis year shall he at least five years
beyond the first analysis year. The last
year of the transportation plan’s forecast
period shall also be an analysis year.
(c) Define the ‘Baseline’ scenario for
each of the analysis years to be the
future transportation system that would
result from current programs, compo ?
of the following (except that project
listed in § 93.134 and 93.135 need
be explicitly considered):
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62244 Federal Register / Vol.’ 58,
No. 225 / Wednesday, November 24, 1993 F Rules and Regulations
(1) All in-place regionally significant
highway and transit facilities, services
and activities;
(2) All ongoing travel demand
management or transportation system
management activities; and
(3) Completion of all regionall
significant projects, regardless o
funding source, which are currently
under construction or are undergoing
right-of-way acquisition (except for
hardship acquisition and protective
buying); come from the first three years
of the previously conforming
transportation plan and/or TIP; or have
completed the NEPA process. (For the
first conformity determination on the
transportation plan after November 24.
1993, a project may not be included in
the “Baseline” scenario if one of the
following major steps has not occurred
within the past three years: NEPA
process completion; start of final design;
acquisition of a significant portion of
the right-of-way; or approval of the
plans, specifications and estimates.
Such a project must be included In the
“Action” scenario, as described in
paragraph (d) of this section.)
(d) Define the ‘Action’ scenario for
each of the analysis years as the
transportation system that will result in
that year from the implementation of the
proposed transportation plan, TIPs
adopted under it. and other expected
regionally significant projects in the
nonattainment area. It will include the
following (except that projects listed in
§ 93.134 and 93.135 need not be
explicitly considered):
(1) All facilities, services, and
activities in the ‘Baseline’ scenario;
(2) Completion of all TCMs and
regionally significant projects (including
facilities, services, and activities)
specifically identified in the proposed
transportation plan which will be
operational or in effect in the analysis
year, except that regulatory TCMs may
not be assumed to begin at a future time
unless the regulation is already adopted
by the enforcing jurisdiction or the TCM
is identified in the applicable
implementation plan;
(3) All travel demand management
programs and transportation system
management activities known to the
MPO, but not included in the applicable
implementation plan or utilizing any
Federal funding or approval, which
have been fully adopted and/or funded
by the enforcing jurisdiction or
sponsoring agency since the last
conformity determination on the
transpprtation plan:
(4) The incremental effects of any
travel demand management programs
and transportation system management
activities known to the MPO, but not
included in the applicable
implementation plan or utilizing any
Federal funding or approval, which
were adopted and/or funded prior to the
date of the last conformity
determination on the transportation
plan, but which have been modified
since then to be more stringent or
effective;
(5) Completion of all expected
regionally significant highway and -
transit projects whieh are not from a
conforming transportation plan and TIP;
and
(6) Completion of all expected
regionally significant non-FHWA/FrA
highway and transit projects that have
clear funding sources and commitments
leading toward their implementation
and completion by the analysis year.
(e) Estimate the emissions predicted
to result in each analysis year from
travel on the transportation systems
defined by the ‘Baseline’ and ‘Action’
scenarios and determine the difference
in regional VOC and NO 1 emissions
(unless the Administrator determines
that additional reductions in NO 1 would
not contribute to attainment) between
the two scenarios for ozone
nonattainment arias and the difference
in CO emissions between the two
scenarios for CO nonattainnient areas.
The analysis must be performed for each
of the analysis years according to the
requirements of § 93.130. Emissions in
milestone years which are between the
analysis years may be determined by
interpolation.
(I) This criterion is met if the regional
VOC and NO emissions (for ozone
nonattainment areas) and CO emissions
(for CO nonattainment areas) predicted
in the ‘Action’ scenario are less than the
emissions predicted from the ‘Baseline’
scenario in each analysis year, and if
this can reasonably be expected to be
true in the periods between the first
milestone year and the analysis years.
The regional analysis must show that
the ‘Action’ scenario contributes to a
reduction in emissions from the 1990
emissions by any nonzero amount.
§93.123 CriterIa and procedures: Interim
period reductIons In ozone and CO areas
(TIP).
(a) A TIP must contribute to emissions
reductions in ozone and CO
nonattainment areas. This criterion
applies during the interim and
transitional periods only, except as
otherwise provided in § 93.136. It
applies to the net effect on emissions of
all projects contained in a new or
revised TIP. This criterion may be
satisfied ifs regional emissions analysis
is performed as described In paragraphs
(b) through (I) of this section.
(b) Determine the ajialysis years for
which emissions are to be estimated.
The first analysis year shall be no later
than the first milestone year (1995 in CO
nonattainment areas and 1996 in ozone
nonattainment areas). The analysis years
shall be no more than ten years apart.
The second analysis year shall be either
the attainment year for the area, or if the
attainment year is the same as the first
analysis year or earlier, the second
analysis year shall be at least five years
beyond the first analysis year. The last
year of the transportation plan’s forecast
period shall also be an analysis year.
(c) Define the ‘Baseline’ scenario as
the future transportation system that
would result from currant programs,
composed of the following (except that
projects listed in § 93.134 and 93.135
need not be explicitly considered):
(1) All in-place regionally significant
highway and transit facilities, services
and activities;
(2) All ongoing travel demand
management or transportation system
management activities; and
(3) Completion of all regionally
significant projects, regardless of
funding source, which are currently
under construction or are undergoing
right-of-way acquisition (except for
hardship acquisition and protective
buying); come from the first three years
of the previously conforming TIP; or
have completed the NEPA process. (For
the first conformity determination on
the TIP after November 24, 1993, a
project may not be Included in the
“Baseline” scenazo if one of the
following major steps has not occurred
within the past three years: NEPA
process completion; start of final design;
acquisition of a significant portion of
the right-of-way: or approval of the
plans, specifications and estimates.
Such a project must be included in the
“Action” scenario, as described in
paragraph (d) of this section.)
(d) Define the ‘Action’ scenario as the
future transportation system that will
result from the implementation of the
proposed i’ll’ and other expected
regionally significant projects in the
nonattainment area in the timeframe of
the transportation plan. It will include
the following (except that projects listed
in § 93.134 and 93.135 need not be
explicitly considered):
(1) All facilities, services, and
activities in the ‘Baseline’ scenario;
(2) Completion of all TCMs and
regionally significant projects (including
facilities, services, and activities)
induded in the proposed TIP, except
that regulatory TCMs may not be
assumed to begin at a future time unless
the regulation is already adopted by the
enforcing jurisdiction or the TCM is
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Federal Registe r / Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and RegulatIons 62245
contained in the applicable
implementation plan;
(3) All travel demand management
programs and transportation system
management activities known to the
MPO, but not included in the applicable
implementation plan or utilizing any
Federal funding or approval, which
have been fully adopted and/or funded
by the enforcing jurisdiction or
sponsoring agency since the last
conformity determination on the TIP;
(4) The incremental effects of any
travel demand management programs
and transportation system management
activities known to the MPO, but not
included in the applicable
implementation plan or utilizing any
Federal funding or approval, which
were adopted and/or funded prior to the
date of the last conformity
determination on the TIP, but which
have been modified since then to be
more stringent or effective;
(5) Completion of all expected
regionally significant highway and
transit projects which are not from a
conforming transportation ptan and TIP;
and
(6) Completion of all expected
regionally significant non-FHWA/FI’A
highway and transit projects that have
clear funding sources and commitments
leading toward their Implementation
and completion by the analysis year.
(e) Estimate the emissions predicted
to result in each analysis year from
travel on the transportation systems
defined by the ‘Baseline’ and ‘Action’
scenarios, and determine the difference
in regional VOC and NO 1 emissions
(unless the Administrator determines
that additional reductions of NO 1 would
not contribute to attainment) between
the two scenarios for ozone
nonattainment areas and the difference
in CO emissions between the two
scenarios for CO nonattainment areas.
The analysis must be performed for each
of the analysis years according to the
requirements of § 93.130. Emissions in
milestone years which are between
analysis years may be determined by
Interpolation.
(f) This criterion is met if the regionai
VOC and NO 1 emissions in ozone
nonattaininent areas and CO emissions
in CO nonattainment areas predicted in
the ‘Action’ scenario are less than the
emissions predicted from the ‘Baseline’
scenario in each analysis year, and if
this can reasonably be expected to be
true in the period between the analysis
years. The regional analysis must show
that the ‘Action’ scenario contributes to
a reduction in enissions from the 1990
emissions by any nonzero amount.
§93.124 CrIteria and procedures: Interim
period reductions for ozone and CO areas
(project not from a plan and TIP).
A transportation project which is not
from a conforming transportation plan
and TIP must contribute to emissions
reductions in ozone and CO
nonattainment areas. This criterion
applies during the interim and
transitional periods only, except as
otherwise provided in § 93.136 This
criterion is satisfied If a regional
emissions analysts is performed which
meets the requirements of § 93.122 and
which includes the transportation plan
and project in the ‘Action’ scenario. If
the project which is not from a
conforming transportation plan and TIP
is a modification of a project currently
in the plan or TIP, the ‘Baseline’
scenario must include the project with
its original design concept and scope,
and the ‘Action’ scenario must include
the project with its new design concept
and scope.
§93.125 CriterIa and procedures: Interim
period reductions for PM, 0 and NO 2 areas
(transportation plan).
(a) A transportation plan must
contribute to emission reductions or
must not increase emissions in PM , o
and NO 2 nonattainment areas. This
criterion applies only during the interim
and transitional periods. It applies to
the net effect on emissions of all
projects contained in a new or revised
transportation plan. This criterion may
be satisfied if the requirements of either
paragraph (b) or (c) of this section are
met.
(b) Demonstrate that implementation
of the plan end all other regionally
significant projects expected in the
nonattainment area will contribute to
reductions in emissions of PM, 0 in a
PM , o nonattainment area (and of each
transportation.related precursor of PM, 0
in PM , o nonattaininent areas if the EPA
Regional Administrator or the director
of the State air agency has made a
finding that such precursor emissions
from within the nonattainment area are
a significant contributor to the PM 10
nonattainment problem and has so
notified the MPO and DOT) and of NO 1
in an NO 2 nonattainment area, by
performing a regional emissions
analysis as follows:
(1) Determine the analysis years for
which emissions are to be estimated.
Analysis years shall be no more than ten
years apart. The first analysis year shall
be no later than 1996 (for NO 2 areas) or
four years and six months following the
date of designation (for PM , o areas). The
second analysis year shall be either the
attainment year for the area, or if the
attainment year is the same as the first
analysis year or earlier, the second
analysis year shall be at least five years
beyond the first analysis year. The last
year of the transportation plan’s forecast
period shall also be an analysis year.
(2) Define for each of the analysis
years the “Baseline” scenario, as
defined in § 93.122(c), and the “Action’
scenario, as defined in § 93.122(d).
(3) Estimate the emissions predicted
to result in each analysis year from
travel on the transportation systems
defined by the “Baseline” and “Action”
scenarios and determine the difference
between the two scenarios in regional
PM , o emissions in a PM , o
nonattainment area (and transportation-
related precursors of PM, 0 in PM , o
nonattainment areas if the EPA Regional
Administrator or the director of the
State air agency has made a finding that
such precursor emissions from within
the nonattainnient area are a significant
contributor to the ,o nonattainment
problem and has so notified the MPO
and DOT) and in NO 1 emissions in an
NO 2 nonattainment area. The analysis
must be performed for each of the
analysis years according to the
requirements of § 93.130. The analysis
must address the periods between the
analysis years and the periods between
1990, the first milestone year (if any),
and the first of the analysis years.
Emissions in milestone years which are
between the analysis years may be
determined by interpolation.
(4) Demonstrate that the regional PM, 0
emissions and PM , o precursor
emissions, where applicable, (for PM, 0
nonattainmont areas) and NO 1
emissions (for NO 2 nonattainment areas)
predicted in the ‘Action’ scenario are
less than the emissions predicted from
the ‘Baseline’ scenario In each analysis
year, and that this can reasonably be
expected to be true In the periods
between the first milestone year (if any)
and the analysis years.
(c) Demonstrate that when the
projects in the transportation plan and
all other regionally significant projects
expected in the nonattainment area are
Implemented, the transportation
system’s total highway and transit
emissions of PM 10 in a PM, 0
nonattainment area (and transportation-
related precursors of PM, 0 in PM , o
nonattainment areas if the EPA Regional
Administrator or the director of the
State air agency has made a finding that
such precursor emissions from within
the nonattainment area are a significant
contributor to the PM , o nonattainment
problem and has so notified the MPO
and DOT) and of NO, in an NO 2
nonattainment area will not be greater
than baseline levels, by performing a
regional emissions analysis as Follows:
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62246 Federal Register / Vol. 58, No. 225 / Wednesday. November 24,
1993 / Rules and Regulations
(1) Determine the baseline regional
emissions of PM 10 and PM 10 precursors.
where applicable (for PM 10
nonattainment areas) and NO, (for NO 2
nonattainment areas) from highway and
transit sources. Baseline emissions are
those estimated to have occurred during
calendar year 1990. unless the
implementation plan revision required
by § 51.396 of this chapter defines the
baseline emissions for a PM 1 ( , area to be
those occurring in a different calendar
year for which a baseline emissions
inventory was developed for the
purpose of developing a control strategy
implementation plan.
(2) Estimate the emissions of the
applicable pollutant(s) from the entire
transportation system. including
projects in the transportation plan and
TIP and all other regionally significant
projects in the nonattainment area.
according to the requirements of
§ 93.130. Emissions shall be estimated
for analysis years which are no more
than ten years apart. The fIrst analysis
year shall be no later than 1996 (for NO 2
areas) or four years and six months
following the date of designation (for
PM areas). The second analysis year
shall be either the attainment year for
the area, or if the attainment year is the
same as the first analysis year or earlier.
the second analysis year shall be at least
five years beyond the first analysis year.
The last year of the transportation plan’s
forecast period shall also be an analysis
year.
(3) Demonstrate that for each analysis
year the emissions estimated in
paragraph (c)(2) of this section are no
greater than baseline emissions of PM 10
and PM 10 precursors, where applicable
(for PM 10 nonattaininent areas) or NO,
(for NO 2 nonattainment areas) from
highway and transit sources.
§93.126 CrIteria and procedures: Interim
period reductIons for PM 10 and NO 2 areas
(TIP).
(a) A TIP. must contribute to emission
reductions or must not increase
emissions in PM 10 and NO 2
nonattainment areas. This criterion
applies only during the interim and
transitional periods. It applies to the net
effect on emissions of all projects
contained in a new or revised TIP. This
criterion may be satisfied if the
requirements of either paragraph (b) or
para aph (c) of this section are met.
(bJ Demonstrate that implementation
of the plan and TIP and all other
regionally significant projects expected
in the nonattainment area will
contribute to reductions in emissions of
PM 10 in a PM 10 nonattainment area (and
transportation-related precursors of
PM 10 in PM 0 nonattainment areas if the
EPA Regional Administrator or the
director of the State air agency has made
a finding that such precursor emissions
from within the nonattainment area are
a significant contributor to the PM 10
nonattainment problem and has so
notified the MPO and DOT) and of NO,
in an NO 2 nonattainment area, by
performing a regional emissions
analysis as follows:
(1) Determine the analysis years for
which emissions are to be estimated.
according to the requirements of
§ 93.125(b)(1).
(2) Define for each of the analysis
years the “Baseline” scenario, as
defined in § 93.123(c). and the “Action”
scenario, as defined in § 93.123(d).
(3) Estimate the emissions predicted
to result in each analysis year from
travel on the transportation systems
defined by the “Baseline” and “Action”
scenarios as required by §93.125(b)(3).
and make the demonstration required by
§ 93.1 25(b)(4).
(c) Demonstrate that when the
projects in the transportation plan and
TIP and all other regionally significant
projects expected in the area are
implemented, the transportation
system’s total highway and transit
emissions oF PM 10 in a PM 11 ,
nonattainment area (and transportation-
related precursors of PM 10 in PM 10
nonattainment areas if the EPA Regional
Administrator or the director of the
State air agency has made a finding that
such precursor emissions from within
the nonattainment area are a significant
contributor to the PM 0 nonattainment
problem and has so notified the MPO
and DOT) and of NO in an NO 2
nonatlainment area will not be greater
than baseline levels, by performing a
regional emissions analysis as required
by § 93.125(c) (1) through (3).
§93.127 CriterIa and procedures: Interim
period reductions for PM 11 , and NO 2 areas
(project not from a plan and TIP).
A transportation project which is not
from a conforming transportation plan
and TIP must contribute to emission
reductions or must not increase
emissions in PM 10 and NO 2
nonattainment areas. This criterion
applies during the interim and
transitional periods only. This criterion
is met if a regional emissions analysis is
performed which meets the
requirements of § 93.125 and which
includes the transportation plan and
project in the ‘Action’ scenario, If the
project which is not from a conforming
transportation plan and TiP is a
modification of a project currently in
the transportation plan or TIP, and
§93.125(b) is used to demonstrate
satisfaction of this criterion, the
‘Baseline’ scenario must include the
project with its original design concept
and scope. and the ‘Action’ scenario
must include the project with its new
design concept and scope.
§93,128 TransitIon from the Interim period
to the control strategy period.
(a) Areas which submit a control
strategy implementation plan revision
after November 24, 1993. (1) The
transportation plan and TIP must be
demonstrated to conform according to
transitional period criteria and
procedures by one year from the date
the Clean Air Act requires submission of
such control strategy implementation
plan revision. Otherwise, the conformity
status of the transportation plan and TIP
will lapse, and no new project-level
conformity determinations may be
made.
(I) The conformity of new
transportation plans and TIPs may be
demonstrated according to Phase II
interim period criteria and procedures
for 90 days following submission of the
control strategy implementation plan
revision, provided the conformity of
such transportation plans and TIPs is
redetermined according to transitional
period criteria and procedures as
required in paragraph (a)(l) of this
section,
(ii) Beginning 90 days after
submission of the control strategy
implementation plan revision, new
transportation plans and TIPs shall
demonstrate conformity according to
transitional period criteria and
procedures.
(2) If EPA disapproves the submitted
control strategy implementation plan
revision and so notifies the State, MPO,
and DOT, which initiates the sanction
process under Clean Air Act sections
179 or 110(m), the conformity status of
the transportation plan and TIP shall
lapse 120 days after EPA’s disapproval,
and no new project-level conformity
determinations may be made. No new
transportation plan, TIP, or project may
be found to conform until another
control strategy implementation plan
revision is submitted and conformity is
demonstrated according to transitional
period criteria and procedures.
(3) Notwithstanding paragraph (a)(2)
of this section, if EPA disapproves the
submitted control strategy
implementation plan revision but
determines that the control strategy
contained in the revision would have
been considered approvable with
respect to requirements for emission
reductions if all committed measures
had been submitted in enforceable form
as required by Clean Air Act section
110(a)(2)(A). the provisions of paragraph
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Federal Register / Vol. 58. No.225 / Wednesday, November 24, 1993 / Rules and Regulations 62247
(a)(1) of this section shall apply For 12
months following the date of
disapproval. The conformity status of
the transportation plan and TIP shall
lapse 12 months following the date of
disapproval unless another control
strategy Implementation plan revision is
submitted to EPA and found to be
complete.
(b) Areas which have not submitted a
control strategy implementation plan
revision. (i) For areas whose Clean Air
Act deadline for submission of the
control strategy implementation plan
revision is after November 24. 1993 and
EPA has notified the State, MPO. and
DOT of the State’s failure to submit a
control strategy implementation plan
revision, which Initiates the sanction
process under Clean Air Act sections
179 or 110(m):
(i) No new transportation plans or
TIPs may be found to conform
beginning 120 days after the Clean Air
Act deadline; and
(ii) The conformity status of the
transportation plan and TIP shall lapse
one year after the Clean Air Act
deadline, and no new project-level
conformity determinations may be
made.
(2) For areas whose Clean Air Act
deadline for submission of the control
strategy implementation plan was before
November 24, 1993 and EPA has made
a finding of failure to submit a control
strategy Implementation plan revision,
which initiates the sanction process
under Clean Air Act sections 179 or
110(m), the following apply unless the
failure has been remedied and
acknowledged by a letter from the EPA
Regional Administrator:
(I) No new transportation plans or
liPs may be found to conform
beginning March 24, 1994; and
(ii) The conformity status of the
transportation plan and TIP shall lapse
November 25, 1994, and no new project-
level conformity determinations may be
made.
(c) Areas which have not submitted a
complete control strategy
implementation plan revision. (1) For
areas where EPA notifies the State,
MPO. and DOT after November 24, 1993
that the control strategy implementation
plan revision submitted by the State is
incomplete, which initiates the sanction
process under Clean Air Act sections
179 or 110(m). the following apply
unless the failure has been remedied
and acknowledged by a letter from the
EPA Regional Administrator:
(i) No new transportation plans or
TIPs may be found to conform
beginning 120 days after EPA’s
incompleteness finding; and
(ii) The conformity status of the
transportation plan and TIP shall lapse
one year after the Clean Air Act
deadline, and no new project-level
conformity determinations may be
made.
(iii) Notwithstanding paragraphs (c)(1)
(i) and (ii) of this section, if EPA notes
in its incompleteness finding that the
submittal would have been considered
complete with respect to requirements
for emission reductions if all committed
measures had been submitted in
enforceable form as required by Clean
Air Act section 110(a)(2)(A), the
provisions of paragraph (a)(1) of this
section shall apply for a period of 12
months following the date of the
incompleteness determination. The
conformity status of the transportation
plan and TIP shall lapse 12 months
Following the date of the incompleteness
determination unless another control
strategy implementation plan revision is
submitted to EPA and found to be
complete.
(2) For areas where EPA has
determined before November 24, 1993
that the control strategy implementation
plan revision is Incomplete, which
initiates the sanction process under
Clean Air Act sections 179 or 110(m),
the following apply unless the failure
has been remedied and acknowledged
by a letter from the EPA Regional
Administrator:
(i) No new transportation plans or
TIPs may be found to conform
beginning March 24. 1994; and
(ii) The conformity status of the
transportation plan and TIP shall lapse
November 25, 1994, and no new project-
level conformity determinations may be
made.
(iii) Notwithstanding paragraphs (c)(2)
(I) and (ii) of this section. ii EPA notes
in its incompleteness finding that the
submittal would have been considered
complete with respect to requirements
for emission reductions if all committed
measures had been submitted in
enforceable form as required by Clean
Air Act section 110(a)(2)(A), the
provisions of paragraph (d)(1) of this
section shall apply for a period of 12
months following the date of the
incompleteness determination. The
conformity status of the transportation
plan and TIP shall lapse 12 months
following the date of the incompleteness
determination unless another control
strategy implementation plan revision is
submitted to EPA and found to he
complete.
(d) Areas which submitted a control
strategy implementation plan before
November24, 1993. (1) The
transportation plan and TIP must be
demonstrated to conform according to
transitional period criteria and
procedures by November 25, 1994.
Otherwise, their conformity status will
lapse, and no new pro ject.level
conformity determinations may be
made.
(I) The conformity of new
transportation plans and TIPs may be
demonstrated according to Phase II
interim period criteria and procedures
until February 22. 1994, provided the
conformity of such transportation plans
and TIPs is redetermined according to
transitional period criteria and
procedures as required in paragraph
(dj(i) of this section.
(ii) Beginning February 22. 1994. new
transportation plans and TIPs shell
demonstrate conformity according to
transitional period criteria and
procedures.
(2) If EPA has disapproved the most
recent control strategy implementation
plan submission, the conformity status
of the transportation plan and TIP shall
lapse March 24. 1994, and no new
project-level conformity determinations
may be made. No new transportation
plans, TIPs, or projects may be found to
conform until another control strategy
implementation plan revision is
submitted and conformity is
demonstrated according to transitional
period criteria and procedures.
(3) Notwithstanding paragraph (d)(2)
of this section, if EPA has disapproved
the submitted control strategy
implementation plan revision but
determines that the control strategy
contained in the revision would have
been considered approvable with
respect to requirements for emission
reductions if all committed measures
had been submitted in enforceable form
as required by Clean Air Act
§110(aX2llA), the provisions of
paragraph (d)(i) of this section shall
apply for 12 months following
November 24, 1993. The conformity
status of’ the transportation plan and TIP
shall lapse 12 months following
November 24. 1993 unless another
control strategy implementation plan
revision is submitted to EPA and found
to be complete.
(e) Projects. If the currently
conforming transportation plan and TIP
have not been demonstrated to conform
according to transitional period criteria
and procedures, the requirements of
paragraphs (a) (1) and (2) of this section
must be met.
(1) Before a FHWA/FTA project
which is regionally sign ificant and
increases single-occupant vehicle
capacity (a new general purpose
highway on a new location or adding
general purpose lanes) may be found to
conform, the State air agency must be
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62248 Federal Register I Vol. 58, No. 225 / Wednesday 1 November 24,
1993 I Rules and Regulations
consulted on how the emissions which
the existing transportation plan and
TIP’s conformity determination
estimates for the “Action” scenario (as
required by § 93:122 through 93.127)
compare to the motor vehicle emissions
budget in the implementation plan
submission or the projected motor
vehicle emissions budget in the
implementation plan under
development.
(2) In the event of unresolved disputes
on such project-level conformity
determinations, the State air agency may
escalate the issue to the Governor
consistent with the procedure in
§ 93.105(d). which applies for any State
air agency comments on a conformity
determination.
(I) Redetermination of conformity of
the existing transportation plan and TIP
according to the tmnsitionoi period
criteria and procedures. (1) The
redetermination of the conformity of the
existing transportation plan and TIP
according to transitional period criteria
and procedures (as required by
paragraphs (a)(1) and (d)(1) of this
section) does not require new emissions
analysis and does not have to satisfy the
requirements of 93.11O and 93.111 if:
(i) The control strategy
implementation plan revision submitted
to EPA uses the MPO’s modeling of the
existing transportation plan and TIP for
its projections of motor vehicle
emissions; and
(ii) The control strategy
implementation plan does not include
any transportation projects which are
not included in the transportation plan
and TIP.
(2) A redetermination of conformity as
described in paragraph (0(1) of this
section is not considered a conformity
determination for the purposes of
§ 93.104(b)(4) or § 93.104(c)(4) reg rding
the maximum intervals between
conformity determinations. Conformity
must be determined according to all the
applicable criteria and procedures of
§ 93.109 within three years of the last
determination which did not rely on
paragraph (Q(1) of this section.
(g) Ozone nonattainrnent areas. (1)
The requirements of paragraph (b)U) of
this section apply if a serious or above
ozone nonattainment area has not
submitted the Implementation plan
revisions which Clean Air Act sections
182(c)(2)(A) and 182(c)(2)(B) require to
be submitted to EPA November 15,
1994, even if the area has submitted the
implementation plan revision which
Clean Air Act section 182(b)(1) requires
to be submitted to EPA November 15,
1993.
(2) The requirements of paragraph
(b)(i) of this section apply if a moderate
ozone nonattainment area which is
using photochemical dispersion
modeling to demonstrate the “specific
annual reductions as necessary to
attain” required by Clean Air Act
section 182(blll), and which has
permission from EPA to delay
submission of such demonstration until
November 15, 1994. does not submit
such demonstration by that date. The
requirements of paragraph (b)(i) of this
section apply in this case even if the
area has submitted the 15% emission
reduction demonstration required by
Clean Air Act section 182(b)(1).
(3) The requirements of paragraph (a)
of this section apply when the
implementation plan revisions required
by Clean Air Act sections 182(c)(2)(A)
and 182(c)(2)(B) are submitted.
(h) Nonattainment areas which ore
not required to demonstrate reasonable
further progress and attainment. If an
area listed in § 93.136 submits a control
strategy implementation plan revisi9n.
the requirements of paragraphs (a) and
(e) of this section apply. Because the
areas listed in § 93.136 are not required
to demonstrate reasonable further
progress and attainment and therefore
have no Clean Air Act deadline, the
provisions of paragraph (b) of this
section do not apply to these areas at
any time.
(I) Maintenance plans. If a control
strategy implementation plan revision is
not submitted to EPA but a maintenance
plan required by Clean Air Act section
175A is submitted to EPA, the
requirements of paragraph (a) or (d) of
this section apply, with the
maintenance plan submission treated as
a “control strategy implementation plan
revision” for the purposes of those
requirements.
§93.129 RequIrements for adoption or
approval of projects by other recipients of
funds designated under tIti . 23 U.S.C. or
the Federal Transit Act
No recipient of federal funds
designated under title 23 U.S.C. or the
Federal Transit Act shall adopt or
approve a regionally significant
highway or transit project, regardless of
funding source, unless there is a
currently conforming transportation
plan and TIP consistent with the
requirements of § 93.114 and the
requirements of one of the following
paragraphs (a) through (e) of this section
are met:
(a) The project comes from a
conforming plan and program consistent
with the requirements of § 93.115;
(b) The project is included in the
regional emissions analysis supporting
the currently conforming TIP’s
conformity determination, even if the
project Is not strictly “included” in the
TIP for the purposes of MPO project
selection or endorsement, and the
project’s design concept and scope have
not changed significantly from those
which were included in the regional
emissions analysis, or in a manner
which would significantly impact use of
the facility:
(c) During the control strategy or
maintenance period, the project is
consistent with the motor vehicle
emissions budget(s) in the applicable
implementation plan consistent with
the requirements of § 93.120;
(d) During Phase II of the interim
period, the project contributes to
emissions reductions or does not
increase emissions consistent with the
requirements of § 93.124 (in ozone and
O nonattainment areas) or § 93.127 (in
PM 10 and NO 2 nonattainment areas); or
(e) During the transitional period, the
project satisfies the requirements of both
paragraphs (c) and (d) of this section.
§93.130 Procedures for determining
regional transportatIon-related emissions.
(a) General requirements. (lIThe
regional emissions analysis for the
transportation plan, TIP, or project not
from a conforming plan and TIP shall
include all regionally significant
projects expected in the nonattainment
or maintenance area, including FHWA/
FTA projects proposed in the
transportation plan and TIP and all
other regionally significant projects
which are disclosed to the MPO as
required by § 93.105. Projects which are
not regionally significant are not
required to be explicitly modeled, but
VMT from such projects must be
estimated in accordance with reasonable
professional practice. The effects of
TCMs and similar. projects that are not
regionally significant may also be
estimated in accordance with reasonable
professional practice.
(2) The emissions analysis may not
include for emissions reduction credit
any TCMs which have been delayed
beyond the scheduled date(s) until such
time as implementation has been
assured. If the TCM has been partially
implemented and it can be
demonstrated that it Is providing
quantifiable emission reduction
benefits, the emissions analysis may
include that emissions reduction credit.
(3) Emissions reduction credit from
projects, programs, or activities which
require a regulation in order to be
implemented may not be included in
the emissions analysis unless the
regulation is already adopted by the
enforcing jurisdiction. Adopted
regulations are required for demand
management strategies for reducing
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Federal Register I Vol. 58, No. 225 I Wednesday. November 24,
1993 I Rules and Regulations 62249
emissions which are not specifically
identified in the applicable
implementation plan, and for control
programs which are external to the
transportation system itself, such as
tailpipe or evaporative emission
standards, limits on gasoline volatility,
inspection and maintenance programs,
and oxygenated or refonnulated
gasoline or diesel fuel. A regulatory
program may also be considered to be
adopted if an opt-in to a Federally
enforced program has been approved by
EPA, if EPA has promulgated the
program (if the control program is a
Federal responsibility, such as tailpipe
standards), or if the Clean Air Act
requires the program without need for
individual State action and without any
discretionary authority for EPA to set its
stringency, delay its effective date, or
not implement the program.
(4) Notwithstanding paragraph (a)(3)
of this section, during the transitional
period, control measures or programs
which are committed to In an
implementation plan submission as
described in § 93.118 through 93.120,
but which has not received final EPA
action in the form of a finding of
incompleteness, approval, or
disapproval may be assumed for
emission reduction credit for the
purpose of demonstrating that the
requirements of fi 93.118 through
93.120 are satisfied.
(5) A regional emissions analysis for
the purpose of satisfying the
requirements of §S 93.122 through
93.124 may account for the programs in
paragraph (a)(4) of this section, but the
same assumptions about these programs
shall be used for both the “Baseline”
and “Action” scenarios.
(b) Serious, severe, and extreme ozone
nonattainment areas and serious carbon
monoxide amos after January 1. 1995.
Estimates of regional transportation.
related emissions used to support
conformity determinations must be
made according to procedures which
meet the requirements in paragraphs (b)
(1) through (5) of this section.
(1) A network-based transportation
demand model or models relating travel
demand and transportation system
performance to land-use patterns,
population demographics, employment,
transportation infrastructure, and
transportation policies must be used to
estimate travel within the metropolitan
planning area of the nonattainment area.
Such a model shall possess the
following attributes:
(i) The modeling methods and the
functional relationships used in the
model(s) shall In all respects be in
accordance with acceptable professional
practice, and reasonable for purposes of
emission estimation;
(ii) The network-based model(s) must
be validated against ground counts for a
base year that is not more than 10 years
prior to the date of the conformity
determination. Land use, population.
and other inputs must be based on the
best available information and
appropriate to the validation base year;
(iii) For peak-hour or peak-period
traffic assignments. a capacity sensitive
assignment methodology must be used;
(iv) Zone-to-zone travel times used to
distribute trips between origin and
destination pairs must be in reasonable
agreement with the travel times which
result from the process of assignment of
trips to network links. Where use of
transit currently is anticipated to be a
significant factor in satisfying
transportation demand, these times
should also be used for modeling mode
splits;
(v) Free-flow speeds on network links
shall be based on empirical
observations;
(vi) Peak and off-peak travel demand
andiravel times must be provided;
(vii) Trip distribution and mode
choice must be sensitive to pricing,
where pricing is a significant factor, If
the network model is capable of such
determinations and the necessary
information Is available;
(viii) The model(s) must utilize and
document a logical correspondence
between the assumed scenario of land
development and use and the future
transportation system for which
emissions are being estimated. Reliance
on a formal land-use model is not
specifically reQuired but is encoura ed;
(ix) A dependence of trip generation
on the accessibility of destinations via
the transportation system (including
pricing) Is strongly encouraged but not
specifically required, unless the
network model is capable of such
determinations and the necessary
information is available;
(x) A dependence of regional
economic and population growth on the
accessibility of destinations via the
transportation system Is strongly
encouraged but not specifically
required, unless the network model Is
capable of such determinations and the
necessary information is available; and
(xi) Consideration of emissions
increases from construction-related
congestion is not specifically required.
(2) Highway Performance Monitoring
System (HPMS) estimates of vehicle
miles traveled shall be considered the
primary measure of vehicle miles
traveled within the portion of the
nonattainment or maintenance area and
for the functional classes of roadways
included in HPMS, for urban areas
which are sampled on a separate urban
area basis. A factor (or factors) shall be
developed to reconcile and calibrate the
network-based model estimates of
vehicle miles traveled in the base year
of its validation to the HPMS estimates
for the same period, and these factors
shall be applied to model estimates of
future vehicle miles traveled. In this
factoring process. consideration will be
given to differences In the facility
coverage of the HPMS and the modeled
network description. Departure from
these procedures is permitted with the
concurrence of DOT and EPA.
(3) Reasonable methods shall be used
to estimate nonattainment area vehicle
travel on off-network roadways within
the urban transportation planning area,
and on roadways outside the urban
transportation planning area.
(4) Reasonable methods in accordance
with good practice must be used to
estimate traffic speeds and delays in a
manner that is sensitive to the estimated
volume of travel on each roadway
segment represented in the network
model.
(5) Ambient temperatures shall be
consistent with those used to establish
the emissions budget in the applicable
Implementation plan. Factors other than
temperatures, for example the fraction
of travel in a hot stabilized engine
mode, may be modified after
interagency consultation according to
§ 93.105 if the newer estimates
incorporate additional or more
geographically specific information or
represent a logically estimated trend in
such factors beyond the period
considered in the applicable
implementation plan.
(c) Areas which are not serious,
severe, or extreme ozone non attainment
areas or serious carbon monoxide areas,
or before January 1, 1995. (1) Procedures
which satisfy some or all of the
requirements of paragraph (a) of this
section shall be used in all areas not
subject to paragraph (a) of this section
In which those procedures have been
the previous practice of the MPO.
(2) Regional emissions may be
estimated by methods which do not
explicitly or comprehensively account
for the influence of land use and
transportation Infrastructure on vehicle
miles traveled and traffic speeds and
congestion. Such methods must account
for VMT growth by extrapolating
historical VMT or projecting future
VMT by considering growth in
population and historical growth trends
for vehicle miles travelled per person.
These methods must also consider
future economic activity, transit
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62250 Federal Register / Vol. 58. No. 225 I Wednesday, November 24. 1993 / Rules and Regulations
alternatives, and transportation system
policies.
(d) Projects not from a conforming
plan and TIP in isolated rural
nonattainment and maintenance areas.
This paragraph applies to any
nonattainment or maintenance area or
any portion thereof which does not have
a metropolitan transportation plan or
TIP and whose projects are not part of
the emissions analysis of any MPO’s
metropolitan transportation plan or TIP
(because the nonattainment or
maintenance area or portion thereof
does not contain a metropolitan
planning area or portion of a
metropolitan planning area and is not
part of a Metropolitan Statistical Area or
Consolidated Metropolitan Statistical
Area which is or contains a
nonattainment or maintenance area).
(1) Conformity demonstrations For
projects in these areas may satisfy the
requirements of §593.120. 93.124. and
93.127 with one regional emissions
analysis which includes all the
regionally significant projects in the
nonattainment or maintenance area (or
portion thereof). -
(2) The requirements of §93.120 shall
be satisfied according to the procedures
in § 93.120(c). with references to the
‘transportation plan” taken to mean the
statewide transportation plan.
(3) The requirements of §593.124 and
93.127 which reference “transportation
plan” or “TIP” shall be taken to mean
those projects in the statewide
transportation plan or statewide TIP
which are in the nonattainment or
maintenance area (or portion thereof).
(4)The requirement of §93. 129(b)
shall be satisfied if:
(i) The project is included in the
regional emissions analysis which
includes all regionally significant
highway and transportation projects in
the nonattainment or maintenance area
(or portion thereof) and supports the
most recent conformity determination
made according to the requirements of
§593.120, 93.124, or 93.127 (as
modified by paragraphs (d)(2) and (d)(3)
of this section), as appropriate for the
time period and pollutant; and
(ii) The project’s design concept and
scope have not changed significantly
from those which were included In the
regional emissions analysis, or in a
manner which would significantly
impact use of the facility.
(e) PM, 0 from construction-related
fugitive dust. (1) For areas in which the
implementation plan does not identify
construction-related fugitive PM, 0 as a
contributor to the nonattainment
problem, the fugitive PM, 0 emissions
associated with highway and transit
project construction are not required to
be considered in the regional emissions
analysis.
(2) In PM I , , nonattainment and
maintenance areas with implementation
plans which identify construction-
related fugitive PM, 0 as a contributor to
the nonattainment problem, the regional
PM 1 ,, emissions analysis shall consider
construction-related fugitive ,o and
shall account for the level of
construction activity, the fugitive PM, 0
control measures in the applicable
implementation plan, and the dust-
producing capacity of the proposed
activities.
§ 93.131 Procedures for detemilning
localized CO and PM , , concentrations (hot-
spot analysis).
(a) In the following cases. CO hot-spot
analyses must be based on the
applicable air quality models, data
bases, and other requirements specified
in 40 CFR part 51, Appendix W
(“Guideline on Air Quality Models
(Revised)” (1988). supplement A (1987)
and supplement B (1993). EPA
publication no. 45012—78- .027R), unless,
after the interagency consultation
process described in § 93.105 and with
the approval of the EPA Regional
Administrator, these models, data bases,
and other requirements are determined
to be inappropriate:
(1) For projects in or affecting
locations, areas, or categories of sites
which are identified in the applicable
implementation plan as sites of current
violation or possible current violation;
(2) For those intersections at Level-of-
Service D, E, or F, or those that will
change to Level-of-Service D, E. or F
because of increased traffic volumes
related to a new project in the vicinity;
(3) For any project involving or
affecting any of the intersections which
the applicable implementation plan
identifies as the top three intersections
in the nonattainment or maintenance
area based on the highest traffic
volumes:
(4) For any project involving or
affecting any of the intersections which
the applicable implementation plan
identifies as the top three intersections
in the nonattainment or maintenance
area based on the worst Level-of-
Service; and -
(5) Where use of the “Guideline”
models is practicable and reasonable
given the potential for violations.
(b) In cases other than those described
in paragraph (a) of this section, other
quantitative methods may be used if
they represent reasonable and common
professional practice.
(c) CO hot-spot analyses must include
the entire project, and may be
performed only after the major design
features which will significantly impact
CO concentrations have been identified.
The background concentration can be
estimated using the ratio of future to
current traffic multiplied by the ratio of
future to current emission factors.
(d) PM,,, hot-spot analysis must be
performed for projects which are located
at sites at which violations have been
verified by monitoring, and at sites
which have essentially identical vehicle
and roadway emission and dispersion
characteristics (including sites near one
at which a violation has been
monitored). The projects which require
PM—ID hot-spot analysis shall be
determined through the interagency
consultation process required in
§ 93.105. In PM—Ia nonattainment and
maintenance areas, new or expanded
bus and rail terminals and transfer
points which increase the number of
diesel vehicles congregating at a single
location require hot-spot analysis. DOT
may choose to make a categorical
conformity determination on bus and
rail terminals or transfer points based on
appropriate modeling of various
terminal sizes, configurations. and
activity levels. The requirements of this
paragraph for quantitative hot-spot
analysis will not take effect until EPA
releases modeling guidance on this
subject and announces in the Federal
Register that these requirements are in
effect.
(e) Hot-spot analysis assumptions
must be consistent with those in the
regional emissions analysis for those
inputs which are required for both
analyses.
(I) PM, 0 or CO mitigation or control
measures shall be assumed in the hot-
spot analysis only where there are
written commitments from the project
sponsor and/or operator to the
implementation of such measures, as
required by § 93.133(a).
(g) CO and PM, 0 hot-spot analyses are
not required to consider construction-
related activities which cause temporary
increases in emissions. Each site which
is affected by construction-related
activities shall be considered separately,
using established “Guideline” methods.
Temporary increases are defined as
those which occur only during the
construction phase and last five years or
less at any individual site.
§ 93.132 Using the motor vehicle
emissions budget In the applicable
implementation plan (or Implementation
plan submission).
(a) In interpreting an applicable
implementation plan (or
implementation plan submission) with
respect to its motor vehicle emissions
budget(s), the MPO and DOT may not
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Federal Register I Vol. 58, No. 225 / Wednesday, November 24, 1993 / Rules and Regulations 62251
infer additions to the budget(s) that are
not explicitly Intended by the
implementation plan (or submission).
Unless the implementation plan
explicitly quantifies the amount by
which motor vehicle emissions could be
higher while still allowing a
demonstration of compliance with the
milestone, attainment, or maintenance
requirement and explicitly states an
intent that some or all of this additional
amount should be available to the MPO
and DOT in the emission budget for
conformity purposes, the MPO may not
interpret the budget to be higher than
the implementation plan’s estimate of
future emissions. This applies in
particular to applicable implementation
plans (or submissions) which
demonstrate that after Implementation
of control measures in the
implementation plan:
(1) Emissions from all sources will be
less than the total emissions that would
be consistent with a required
demonstration of an emissions
reduction milestone;
(2) Emissions from all sources will
result in achieving attainment prior to
the attainment deadline and/or ambient
concentrations in the attainment
deadline year will be lower than needed
to demonstrate attainment; or
(3) Emissions will be lower than
needed to provide for continued
maintenance.
(b) If an applicable implementation
plan submitted before November 24,
1993 demonstrates that emissions from
all sources will be less than the total
emissions that would be consistent with
attainment and quantifies that “safety
margin,” the State may submit a SIP
revision which assigns some or all of
this safety margin to highway and
transit mobile sources for the purposes
of conformity. Such a SIP revision, once
it is endorsed by the Governor and has
been subject to a public hearing, may he
used for the purposes of transportation
conformity before it is approved by
EPA.
(c) A conformity demonstration shall
not trade emissions among budgets
which the applicable implementation
plan (or implementation plan
submission) allocates for different
pollutants or precursors, or among
budgets allocated to motor vehicles and
other sources, without a SIP revision or
a SIP which establishes mechanisms for
such trades.
(d) If the applicable implementation
plan (or implementation plan
submission) estimates future emissions
by geographic subarea of the
nonattainment area, the MPO and DOT
are not required to consider this to
establish subarea budgets, unless the
applicable implementation plan (or
implementation plan submission)
explicitly indicates an intent to create
such subarea budgets for the purposes of
conformity.
(e) If a nonattainment area includes
more than one MFO, the SIP may
establish motor vehicle emissions
budgets for each MPO, or else the MPOs
must collectively make a conformity
determination for the entire
nonattainment area.
§93,133 EnforceabIlity of design concept
and scope and project-level mitigation and
contrel measures.
(a) Prior to determining that a
transportation project is in conformity,
the MPO. other recipient of funds
designated under title 23 U.S.C. or the
Federal Transit Act, FHWA. or FTA
must obtain from the project sponsor
and/or operator written commitments to
implement in the construction of the
project and operation of the resulting
facility or service any project-level
mitigation or control measures which
are identified as conditions for NEPA
process completion with respect to local
PM 10 or CO impacts. Before making
conformity determinations written
commitments must also be obtained for
project-level mitigation or control
measures which are conditions for
making conformity determinations for a
transportation plan or TIP and included
in the project desIgn concept and scope
which is used in the regional emissions
analysis required by § 93.118 through
93.120 and § 93.122—93.124 or used in
the project-level hot-spot analysis
required by § 93.116 and 93.121.
(b) Project sponsors voluntarily
committing to mitigation measures to
facilitate positive conformity
determinations must comply with the
obligations of such commitments.
(c) The implementation plan revision
required in § 51.396 of this chapter shall
provide that written commitments to
mitigation measures must be obtained
prior to a positive conformity
determination, and that project sponsors
must comply with such commitments.
(d) During the control strategy and
maintenance periods, if the MPO or
project sponsor believes the mitigation
or control measure is no longer
necessary for conformity, the project
sponsor or operator may be relieved of
its obligation to implement the
mitigation or control measure if it can
demonstrate that the requirements of
§g93.116, 93.118, and 93.119 are
satisfied without the mitigation oz
control measure, and so notifies the
agencies involved in the interagency
consultation process required under
§ 93.105. The MPO and DOT must
confirm that the transportation plan and
TIP still satisfy the requirements of
§g93.118 and 93.119 and that the
project still satisfies the requirements of
§ 93.116, and therefore that the
conformity determinations for the
transportation plan, TIP, and project are
still valid.
§ 93.134 Exempt projects.
Notwithstanding the other
requirements of this subpart, highway
and transit projects of the types listed In
Table 2 are exempt from the
requirement that a conformity
determination be made. Such projects
may proceed toward implementation
even in the absence of a conforming
transportation plan and TIP. A
particular action of the type listed in
Table 2 is not exempt if the MPO in
consultation with other agencies (see
§ 93.105(c)(1)(iii)), the EPA, and the
FHWA (In the case of a highway project)
or the FTA (in the case of a transit
project) concur that it has potentially
adverse emissions impacts for any
reason. States and MPOs must ensure
that exempt projects do not interfere
with TCM implementation.
TABLE 2.—EXEMPT PROJECTS
Safety
RailroadThighway crossing.
Hazard elimination program.
Safer non-Federal-aid system roads.
Shoulder improvements.
Increasing sight distance.
Safety improvement program.
Traffic control devices and operating assistance other than sigrsahzation projects.
Railroadmighway crossing warning devices.
Guardrajls, median banters, crash cushions.
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62252 Federal Register / Vol. 58, No. 225 / Wednesday, November 24, 1993 I Rules and Regulations
TABLE 2.—EXEMPT PROJECTS—Continued
Pavement resurfacing and/or rehabilitation.
Pavement mazldng demonstration.
Emergency reflef (23 U.S.C. 125).
Fencing.
Skid treattnents.
Safety roadside rest areas.
Adding medians.
Truck dimblng lanes outside the urbanized area.
Ughting th provemcnts.
Widening narrow pavements or reconstructing bridges (no additional travel lanes).
Emergency truck pullovers.
Mass Transit
Operating assistance to transit agencies.
Purchase of support vehicles.
Rehabilitation of transit vehicles’.
Purchase of office, shop, and operating equipment for e,dsllng facilities.
Purchase of operating equipment for vehicles (e.g.. radios, fareboxes, lifts, etc.).
Construction or renovation of power, signal, and communications systems.
Construction of small passenger shelters and Information kiosks.
Reconstruction or renovation of transit buildings and structures (e.g., rail or bus buildings. storage and maintenance facilities, static is, terminals,
and ancillary structures).
Rehabilitation or reconstruction of track structures, track, and trackbed In erdstlng ltghts.of-way.
Purchase of new buses and rail cam to replace existing vehicles or for minor mpanslons of the fleet 1 .
Construction of new bus or rail storagehiialntenance facilIties categorically excluded In 23 CFR pail 771.
Al , Quality
Continuation of ilde.shadng and van.poollng promotion activities at current levels.
Bicycle and pedestrian facilities.
Other
Specific activities which do not Involve or lead directly to construction, such as:
Planning and technical studies.
Grants for training and research programs.
Planning activities conducted pursuant to titles 23 dial 49 U.S.C.
Federal-aid systems revisIons.
Engineering to assess social, economic, and environn untal effects of the proposed action or alternatives to that action.
Noise attenuation.
Advance land acquIsitions (23 CFR past 712 or 23 CFR pail 771).
Acquisition of scenic easements.
Plantings, landscaping, etc.
Sign removal.
Directional’ and Informational signs.
Transportation enhancement activities (except rehabilitation and operation of historic transportation buildings, structures, or facilities).
Repair of damage caused.by natural disasters, clvii unrest or terrorist acts, except projects lnvoMng substantial functional, locational or capac-
ity changes . -
‘In PM 10 nonattainmont or maintenance areas, such projects are exempt only If they are in compliance with control measures In the applicable
Implementation plan.
§93.135 PreJects exempt from regIonal
emissIons analyses.
Notwithstanding the other
requirements of this subpart. highway
and transit projects of the types listed in
Table 3 are exempt from regional
emissions analysis requirements. The
local effects of these projects with
respect to CO or PM 10 concentrations
must be considered to determine If a
hot-spot analysis is required prior to
making a project-level conformity
determination. These projects may then
proceed to the project development
process even in the absence of a
conf rmIng transportation plan and TIP.
A particular action of the type listed in
Table 3 is not exempt from regional
emissions analysis If the MPO in
consultation with other agencies (see
§ 93.105(c)(1)(iil)), the EPA, and the
FHWA (In the case of a highway project)
,jr the F A (in the case of a transit
project) concur that it has potential
regional Impacts for any reason.
TABLE 3.—PROJECTS EXEMPT FRoM
REGIONAl. EMISSIONs ANALYSES
D
Intersection channelizatlon projects.
Intersection signalIzation projects at Individual
Intersections.
Interchange reconfiguranon projecrs.
Changes In vertical and horizontal alignment.
Truck size and weIght Inspection stations.
Bus terminals and transfer croints .
§93.136 Special provuuiuna for
nanattalnment areas whIch are net required
to demonstrats reasonable further progress
and attaInment.
(a) Application. This section applies
In the following areas:
(1) Rural transport ozone
nonattalninent areas;
(2) Marginal ozone areas;
(3) SubmargInal ozone areas;
(4) Transitional ozone areas;
(5) Incomplete data ozone areas;
(6) Moderate CO areas with a design
value of 12.7 ppm or less; and
(7) Not classified CO areas.
(b) Default conformity procedures.
The criteria and procedures in § 93.122
through 93.124 wIll remain in effect
throughout the control strategy period
for transportation plans, TIPs, and
projects (not from a conforming plan
and TIP) In lieu of the procedures in
§ 93.118 through 93.120, except as
otherwise provided In paragraph (c) of
this section.
Cc) Optional conformity procedures.
The State or MPO may voluntarily
develop an attAinment demonstration
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Federal Register / Vol. 58, No. 225 I Wednesday, November 24, 1993 / Rules and Regulations 62253
and corresponding motor vehicle
emissions budget like those required in
areas with higher nonattainmént
classifications. In this case. the State
must submit an implementation plan
revision which contains that budget and
attainment demonstration. Once EPA
has approved this implementation plan
revision, the procedures in § 93.118
through 93.120 apply in lieu of the
procedures in § 93.122 through 93.124.
(FR Doc. 93—28616 Filed 11—23—93; 8:45 aml
BILLING CODE 1 560-60-P
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-K - Cl
Tuesday
November 30, 1993
Part H
Environmental
Protection Agency
40 CFR Parts 6, 51, and 93
Determining Conformity of General
Federal Actions to State or Federal
Implementation Plans; Final Rule
I I
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63214 Federal Register I Vol. 58, No. 228 I Tuesday. November_30. 1993 / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 6,51, and 93
IFAL-leos -li
Determining Conformity of General
Federal Actions to State or Federal
Implementation Plans
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: The Clean Air Act (Act)
requires EPA to promulgate rules to
ensure that Federal actions conform to
the appropriate State implementation
plan (SIP). Conformity to a SIP Is
defined In the Act as amended in 1990
as meaning conformity to a SIP’s
purpose of eliminating or reducing the
severity and number of violations of the
national ambient air quality standards
(NAAQS) end achieving expeditious
attainment of such standards. The
Federal agency responsible for the
action Is required to determine if Its
actions conform to the applicable SIP.
This final rule establishes the criteria
and pro ures governing the
determination of conformity for all
Federal actions, except Federal highway
and transit actions (“transportation
conformity”). Transportation conformity
requirements are established in a
separate rulemaking action.
EFFECTIVE DATES The final rules for 40
CFR parts 51 and 93 are effective
January 31, 1994. The final rule for 40
CFR past 6 will be effective January 31,
1994 unless notice is received by
December 30. 1993. that someone
wishes to submit adverse or critical
comsnents. U the effective date is
delayed for the 40 CPR part B nile due
to the need to provide for public
comment, timely notice will be
published In the Federal Register. The
information collection requirements
contained in 40 CFR part 51, subpart W,
and 40 CFR pelt 93, subpart B. have not
been approved by the Office of
Management and Budget (0MB) and are
not effective until 0MB has approved
them. A document will be published in
the Federal Register announr 4 ng the
effective date. . . -
FOR RMfl IIFORMATICN CONTACfl
Doug Crane: U.S. EPA, Office of Alt
ty PI nnlnp and Standards (MD.-
1* Research Triangle Park, NC 27711.
19 341—3292.
$IFL ITMY P ATK .N:
I. Sm ” ”. ’y of the Flail Rule
U.—.
Ill Discussion of Malor Issues snd Response
to Comments
A. Effective Dates
B. SIP Revisions—Slate Authority
C. Indirect Emiuion.—lnchasive/Exclu,lve
Definition
D. Indirect Emlsslons—Deflnition of
“Caused By”
B. Indirect Emiuions—Sect lons
110(a)(SXA) and 131 of the Act
F. indirect Emlssion.—Reasonably
Foreseeable Emissions
C. Indirect Emtss lons—Oeflnitlon of
Federal Activity
H. Appllcabiilty—Attainment Areas
I. Applicabilily—De MInIml, Emission
Levels
I. Applicebllity.—Exemptlons and
Presumptions of Conibrinity
K. Appl lcabliity—Calculatioa
L Reporting Requirements
M. Public Participation
N. Emissions Budget
0. Mitigation Measures
P. EPA and Slate Review Role
IV. Discussion of Other Issues and Response
to Comments
A. 40 CFR Part 93
B. SIP RevIsion—Deadline
C. SIP Revision—General Conformily
0. l ederal Actions—Miscellaneous
B. Applicable Implementation Plan
F. Increase the Frequency or Severity
C. Maintenance Area
ILOffsets
I. Deflnitions.—Miscellaneous
j. Conformity Determination
K. Air Quality Related Values (AQRV’s)
I. Frequency of Conformity Determination,
M. Tiering
N. ApplicabIlity—Regionally Significant
Actions
0. Applicabillty—NAAQS Precursors •
P. Attainment Demonstration
Q. Transportation Conformity
B. Baseline Emissions
3 nm .xi Reductions
T. Snmiii y of Qiterta for Determining
Confoemily
U. Planning Assumptions
V. Forecast Emission Years
W. Total of Direct and Indirect Emissions
X. New or Revised Emissions Models
Y.AIr Quality Modeling—General
LAir Quality Modeling—PM-b
AA. Activity on Pederally.Managed Land
33. Federalism Assessment
V. Economic Impact
VI. Administrative Requirements
A. Executive der 12866
B. Reaulatory Flexibility Act
C. Papdwork Reduction Act
ft Federalism ImplicatIons
L$—-”yefsheFi nallule
The purpose of this rule Is to
Implement sectIon 178(c) of the Act, as
amended (42 U.S.C. 7401 et seq.). which
requires that all Federal nctlons conform
to an applicable implementation plan
developed pursuant to sectIon 110 and
part D of the Act. Section 178(c) of the.
Act requires EPA to promulgate criteria
and procedures for demonstrating and
assuring conformity of Federal actions
to a SIP. States are required through this
rule to submit to EPA revisions to their
implementation plans establishing
conformity criteria and procedures
consistent with this rule within 12
months of today’s date.
For the purpose of summarizing the
general conformity rule, It can be
viewed as containing three major parts.
applicability, procedure, and analysis.
These are briefly described in the next
three paragraphs.
The general conformity rule covers
direct an4 indirect emissions of criteria
pollutants or their precursors that are
caused by a Federal action, are
reasonably foreseeable, and can
practicably be controlled by the Federal
agency through its continuing program
responsibility. The rule generally
applies to Federal actions except:
(1) Those covered by the
transportation conformity rule;
(2) Actions with associated emissions
below specified de minimis levels: and
(3) Certain other actions which are
exempt or presumed to conform.
The rule also establishes procedural
requirements. Federal agencies must
mike their conformity determinations
available for public review. Notice of
draft and final conformity
determinations must be provided.
directly to air quality regulatoi r
agencies and to the public by
publication In a local newspaper.
The conformity determination
exam lnestheimpactiofthedirectand
indirect senlisions from the Federal
action. The rule provides several
options to satisfy air quality criteria and
requires the Federal action to also meet
any applicable SIP requirements and
emission milestones. Each Federal
agency must determine that any actions
covered by the rule conform to the
applicable SIP before the action Is taken.
The EPA continues to believe that the
statute is ambiguous and that it provides
EPA discretionary authority to apply
these general conformity procedures to
both attNlrnnent and nonattainment
areas.
However, EPA cannot now apply
these rules in attainment areas because
It did not propose to do so. The EPA
must first complete notice and comment
on the application of thern
appropriate criteria and procedures for
conformity determinations In
attainment areas. Therefore, the thteria
and procedures established In this rule
apply only in areas that are
nonattainment or maintenance with
respect to any of the criteria pollutants
under the Act: Icarbon monoxide (CO)
SQI ts pouutaats vs this. pollutants for wtiith
‘A his tth ’ ‘via KAAQS iindur section 105
of the Act.
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Federal Register / Vol. 58,
No. 228 I Tuesday, November 30 , 1993 / Rules and Regulations 63215
lead (Pb). nitrogen dioxide, ozone,
particulate matter (PM—b), and sulfur
dioxide (SO 2 ).
This rule does not apply to Federal
procurement actions. The March 15,
1993 proposal was silent on the
application of conformity requirements
specifically to procurement actions.
however, a number of comments were
received on procurements. Although the
comments generally indicated that
procurements should be exempt from
the final confonnity rule, EPA is
inclined to believe that Congress
intended for certain procurement
actions to be covered by the general
conformity provisions. It is impossible
at this time to resolve the competing
concerns regarding which procurement
actions should be covered and which
should be exempt since the existing
record is inadequate. Therefore, the EPA
will propose to cover certain
procurements in a future rulemaking.
but will take comment on other
interpretations.
The EPA will also propose
exemptions for certain procurement
actions which it believes would fit the
de minimis criteria or result in
emissions which are not reasonably
foreseeable. The EPA believes the
majority of procurement actions would
be de minimis or not reasonably
foroseeable. Given the complexity of
Federal procurement and the
government’s desire to streamline
procurement activities, the EPA will
seek comment on its proposed
exemptions and the process for applying
conformity to procurement activities.
U. Background
The general conformity rule was
proposed on March 15. 1993 (58 FR.
13838). Additional background
information can be found In the
proposal notice.
Conformity is defined In section
176(c) of the Act as conformity to the
SIP’s purpose of eliminating or reducing
the severity and number of violations of
the NAAQS and achieving expeditious
attainment of such standards, and that
such activities will not:
(1) Cause or contribute to any new
violation of any standard in any area.
(2) Increase the frequency or severity
of any existing violation of any standard
in any area, or
(3) Delay timely attainment of any
standard or any required interim
amic ion reductions or other milestones
in any area.
Th.Act as amended in 1990 ties
conformity to attainment and
maintenance of the NAAQS. Thus, a
Federal action must not adversely affect
the timely attainment sad maintenance
of the NA.AQS or emission reduction
progress plans leading to attainment.
The Act as amended In 1990 includes a
new emphasis of reconciling the
emissions from Federal actions with the
SIP, rather than simply providing for the
implementation of SIP measures. This
integration of Federal actions and air
quality planning Is Intended to protect
the integrity of the SIP by helping to
ensure that SIP growth projections are
not exceeded, emissions reduction
progress targets are achieved, and air
quality attainment and maintenance
efforts are not undermined.
The rule amends part 51 of title 40 of
the Code of Federal Regulations by
adding a new subpart W. Part 51 is
entitled: “Requirements for preparation.
adoption, and submittal of
Implementation plans.” Amendment to
part 51 is necessary to require States to
revise their implementation plans to
include conformity requirements. Once
the State plans are revised, the Federal
agencies would be subject to those
requirements.
In addition, the rule adds a new
subpart B to part 93 of title 40 of the
Code of Federal Regulations. This Is
necessary to make the conformity
requirements apply to Federal agencies
as soon as the rule is effective and in the
Interim period before the States revise
their implementation plans. The part 93
requirements are identical to the part Si
requirements with one exception: they
do not require a State to revise Its
implementation plan. To avoid
duplication, the preamble language cites
only the pelt Si sections. however, the
relevant part 51 discussion also applies
to the equivalent part 93 rules.
Asnotedlntheproposal(58FR
13837), EPA promulgated conformity
rules in 1979 and 1985 to implement the
conformity provisions for EPA actions at
40 R 6.303. Today’s final rule applies
the conformity provisions of the Act as
amended in 1990 to all Federal
activities, Including EPA activities.
Thus, the conformity requirements of 40
CFR 6.303 are superseded by these
rules. Accordingly. paragraphs (a)
through (1) of 40 CFR 8.303 are replaced
with a new paragraph (a) which refers
to the conformity rules promulgated
today and a new paragraph (b) which
retains the requirements of (old)
paragraph (g), which addresses other
requirements of section 318(b) of the.
Act. The EPA is taking this action
without specifically having proposed to
make these changes to 40 CPR 8.303 in
the March 15, 1993 proposal because
the Agency views this as a
noncontroversial action and anticipates
no adverse comments. This action will
be effective January 31, 1994 unless, by
December 30. 1993 notice is received
that adverse or critical comments will
be submitted regarding the changes to
40 CFR 6.303. If final action on the
changes to 40 CFR 6.303 is delayed
pending public comment, the
requirements of the new part 51 and 93
rules will still supersede the
requirements of 40 CFR 6.303.
III. Discussion of Major Issues and
Response to Comments
For additional background
information on the major issues, the
reader should refer to 58 FR 13837—
13847, March 15, 1993. Unless
otherwise noted, the discussions in
Sections II I and IV below only address
issues where public comments were
received. For portions of the proposed
rule where comments were not received.
the final rule is consistent with the
proposed rule for the reasons set forth
in the proposal notice. Further
discussion of such Issues is not
addressed In this preamble. Portions of
the proposed rule were also changed so
that the final rule more clearly states the
intended meaning. Sections III and IV
address Issues in the same order as they
were addressed In the proposal which is
also consistent with the regulatory
portion of this rulemaking notice.
A. Effective Dates
1. Proposal
The effective date of this rule was
proposed to be 30 days after the final
rulemaking notice is published. At that
time, however, some projects that are
dependent on Federal actions will have
already commenced or completed
planning activities, perhaps including
their environmental assessment. Such
projects would then be faced with the
uncertainty of new conformity
requirements that could not have been
anticipated prior to the final rules being
published. This uncertainty could
threaten the viability of projects for
which considerable time and funds
already have been or are about to be
Invested.
The preamble to the proposal
specifically invited comments on
transition (or grandfatherlng) provisions
for on .going projects that are dependent
on Federal actions (58 FR. 13837). Two
options were proposed which would
allow grandiathering based on activities
that will have either already
commenced or completed their
environmental assessment by the time
the final rulemaking notice is published.
2. Comment
The EPA received comments on this
Issue which recommended a variety of
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63216 Federal Register I Vol. 58, No. 228 I Tuesday . November 30, 1993 / Rules and Regulations
approaches. The comments included the
following recommendations, among
others:
(1) Exempt Federal actions where the
envuvnmental analysis has been
“commenced” prior to the effective date
of the final rules.
(2) Base the exemption on the
“completion” of the environmental
analysis prior to the effective date of the
final rules. One commenter suggested
the following definition of “complete:”
Projects where there has been sufficient
environmental analysis for the agency to
determine that the project Is In
conformity with the purposes of the SIP
pursuant to the agency’s affirmative
obligation under Act section 176(c), or
where a written determination of
conformity under section 176(c) of the
Act has been made.
(3) The rule should apply
retroactively to November 15. 1991. th
deadline set by Congress for
promulgation of the rules by EPA.
(4) The final conformity rule should
take effect only after a State revises Its
Sn’ to meet the new Act conformity
requirements and the revision Is
approved by EPA.
(5) Exempt only projects that have
ecelvediund1ng prior to the effective
date of the conformity rules.
(6) Exempt projects that have
completed an environmental analysis
which included public participation.
(7) Phase-in review by focusing first
on environmental Impact statements
(EIS ’s) and then later extend to other
actions or exempt projects completed
prior to 1 year after the rules are final.
3. Response
This final rule does not require a new
conformity det rmination for Federal
actions where the Federal agency
completed Its conformity determination
by March 15, 1994 orNational
Environmental Policy Act (NEPA)
analysis prior to the effective date of
this rule. If a conformity determination
has been “completed” It means the
responsible Feàerel agency made a final
determination that a specific action
conforms, pursuant to sectIon 176(c) of
the Act. In such cases, the Federal
actions must have conformity
determinations pursuant to section
176(c) of the Act, but they would not be
subject to the specific rules published
today. Alternatively , If the Federal
. .ty bad completed its environmental
analysis E a Federal action under the
A — to ths effective date of this
ruM. an an ’ 1 ’- -’ t by an EIS,
r i. .4-, -J I sment (EA), or
finding of no significant Impact
(FONSO, then such an action Is also not
subject to the specific rules published
today. although It would have been
subject to applicable conformity
requirements at the time the
environmental analysis was completed.
In determining whether to apply rules
Immediately, EPA generally considers
the following factors:
(1) Whether the new rule represents
an abrupt departure from well
established practice or merely attempts
to fill a void In an unsettled area of law.
(2) The extent to which the party
against whom the new rule Is applied
relied on the former rule.
(3) The degree of burden which
Immediate application of a rule imposes
on a party, and
(4) The statutory interest In applying
a new rule despite the reliance of a
party on the old standard.
The EPA considered all options
contained In the comments and
determined that the grandfathering
provision in the final rule Is appropriate
for the reasons described below.
(1) The general conformity rule
represents an abrupt departure from the
previous conformity requirements EPA
published In 40 CFR 8.303, whIch
applied only to EPA actions (and which
are being replaced by this rulemaking).
Although staff working drafts of the new
rule existed as early as November 1991,
the final rule Is considerably changed
from all of the early drafts, which also
had very limited circulation.
(2) ConsIdering the general absence of
conformity determinations by Federal
agencies prior to the 1990 amendments
to the Act, most parties appear to have
relied on the NEPA requirements or on
40 CFR 6.303 to mean that specific
general conformity requirements did not
apply for Federal agencies other than
EPA.
(3) Prior to this final rulemaking,
many Federal actions will have already
completed their environmental analysis
pursuant to NEPA. Suth projects would
then be faced with the uncertainty of the
new conformity requirements that were
not anticipated prior to the final niles
being published: This uncertainty could
threaten the viability of projects br
which considerable time and fund.
already have been or are about to be
Invested.
(4) The statutory interest in applying
the new requirements during this
interim period Is preserved where the
Federal action specifically considered
the conformity requirements of the Act
and completed such an analysis or
fulfilled the NEPA requirements. since
such actions would provide for en
environmental analysis focusing on air
quality as envisioned by Congress even
though the analysis might not meet all
the details contained in the new rules.
After determining that some form of
grandfathering Is appropriate, EPA
selected a hybrid of the commencement
and completion dates of a conformity
determination or where a NEPA analy
has been completed. That Is. the final
rule grandfathers actions where: (1) The
NEPA analysis Is completed by the
effective date of this rule, or (2) the
environmental analysis was commenced
prior to the effective date of this rule,
sufficient environmental analysis Is
completed. and the conformity
determination is completed by March
15. 1994 (1 year after the date of the
proposed rulemaking). This approach is
supported by the following reasons:
(1] The completion date can be well
defined, as described above.
(2) The commencement date and
phase-in approaches are valid concepts
but, by themselves, are subject to too
much uncertainty. These concepts have
less well defined dates than the
completion date. In many cases, the
conformity analysis could have been
recently started and the new rules could
be incorporated into the analysis
without hardship. The commencement
date Is likely to exceed the 5-year
timefrsme for conformity reanalysis in
many cases. The EPA believes that It is
reasonable to expect that a conformity
determination could be developed In
parallel with the ongoing environment
analysis and/or rely on any previous
environmental analyses to the degree
they are complete; In this manner the
conformity determination ehould not
require extensive, new analyses nor
prolong the environmental review
process In most cases.
(3) The date after EPA approval of the
State conformity rules Is an
unjustiflably lengthy delay and is not
consistent with the statutory Intent to
have the Federal rules In place and the
States later follow with their own
conformity rules.
(4) The funding date may be difficult
todefineslnceltcouldbebased one
variety of steps within an overall grant
process or based In some way on the
actual expenditure of funds.
(5) Grandfatherlng based on previous
public participation and/or the
commencement of an environmental
analysis would not assure that the
analysis was completed and also would
require EPA to define what level of
previous public participation would be
considered adequate—en Issue not
addressed in the proposal.
As described In § 51.857(a), a
conformity determination automatically
lapses 5 years from the date of the Initial
determination unless the Federal act1or
has been completed ore continuous
program has been commenced to
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Federal Register I Vol. 58, No. 228 / Tuesday, Novombor 30. 1993 / Rules and Regulations 63217
implement that Federal action within a
reasonable time. This 5-year provision
also applies with respect to conformity
determinations grandfathered as
described above.
The information collection
requirements in 40 CFR parts 51 and 93
have not yet been approved by the 0MB
and are not effective until 0MB
approves them.
B SIP Revisions—State Authority
1. Proposal
As described in the March 15. 1993
preamble. EPA proposed that States may
adopt criteria and procedures more
stringent than the requirements in the
EPA rules (58 FR 13838).
2. Comment
Several commenters supported EPA ’s
view. These commenters stated that
Federal agencies are to be afforded no
special privileges and that the Act in no
way prevents the imposition of more
stringent control measures in instances
where public health and welfare may be
at risk.
Other comm enters, however, stated
that Federal agencies should not be held
to a higher standard by State regulations
than adjacent or nearby private or State
activities. These comments suggest that
this provision may be Inconsistent with
section 118 of the Act. Section 118 of
the Act states that Federal agencies are
to comply with State air pollution
requirements “in the same manner and
to the same extent as any
nongovernmental entity.” Since the
general conformity requirement is not
imposed on any non-Federal entity,
these agencies argue that there is not a
waiver of sovereign immunity which
would allow State regulation of Federal
activities in either sections 118 or 176
of the Act; therefore, these agencies
argue, the Act does not permit States to
set more stringent conformity
requirements than those set by EPA.
Some commented that multiple State
rules would cause confusion to Federal
agencies trying to meet the conformity
requirements.
One comment stated that only areas
designated “extreme” should be
allowed to require more stringent State
or regional general conformity rules in
its SIP.
3. Response
In cimsid.’ rig th. comments received
on this Issu J’A has.taken the
o sections 116. 118 and
178(c) of the Act into account. The new
language added to section 176(c) by the
1990 amendments to the Act makes it
clear that the purpose of section 176(c)
is to make emissions from Federal
actions consistent with the Act’s air
quality planning goals. The conformity
requirement is different from most other
requirements of the Act because it is
imposed solely on Federal agencies. and
is not required of nongovernmental
entities. Therefore it is appropriate for
EPA to establish the criteria and
procedures for the conformity of Federal
actions as specified by section
176(c)(4)(A) of the Act. It is also
required that States adopt a SIP revision
that includes these criteria and
procedures, as indicated by section
176(c)(4)(C) of the Act. Furthermore,
EPA interprets the requirements
imposed by section 116 of the Act to
mean that the criteria and procedures
set by State conformity rules may not be
any less stringent than those established
by this rulemaking.
The EPA interprets the section 118
requirement that Federal agencies
comply with air pollution requirements
“in the same manner and to the same
extent as any nongovernmental entity”
to mean only that Federal agencies must
comply with any air pollution rule
established under the Act to no less an
extent than nongovernmental entities.
The general conformity rule and State
rules adopted pursuant to it are rules
established under the Act with which,
under section 118, Federal agencies
must comply. Consequently. EPA does
not agree that there is no waiver of
sovereign Immunity at all In section
176(c). The EPA concludes that section
I 76(c)(4)(c) requires State conformity
SIP’s that would regulate Federal
activities.
However, the language of the relevant
sections does leave unclear the extent to
which the waiver of sovereign immunity
may limit the manner in which a State’s
section 116 authority is applied to
Federal agencies. After careful
consideration of the legal and policy
arguments presented to EPA after the
March 15, 1993 notIce of proposed
rulemaking (NPR), EPA has concluded
that State conforir.ity rules which do not
apply to non-Federal entitles and which
apply more stringent requirements than
the EPA general conformity rule to
federally-assisted facilities would be
Inconsistent with the waiver of
sovereign immunity provided by section
118 of the Act. Applying such rules
exclusively to federally-assisted
facilities, which could he the case with
any more stringent conformity
requirements since conformity
requirements do not apply statutorily to
nongovernment entities, would have an
unjustifiably discriminatory effect.
Under current case law, a reviewing
court would construe waivers of
sovereign Immunity, like that in seuion
118, narrowly. See Department of
Energyv. Ohio, 112 SCT. 1627, 1633
(1992); McMahon v. United States, 342
U.S. 25, 26, 72 S CT. 17, 18(1951). The
EPA believes that such purely
discriminatory more-stringent State
programs would be prohibited under
such case law.
The EPA recognizes that States have
historically developed their own
conformity requirements despite the
absence of any Federal rules. Further,
States have frequently adopted
requirements that differ from State to
State, both with respect to conformity
and general air quality management. in
order to address different air quality
needs and regulatory authorities There
are several statements excerpted below
from the congressional Record which
support the conclusion that States may
adopt conformity rules that are more
stringent than the rules promulgated by
EPA.
Such (Federall regulations will provide
guidance to the states for the adoption of
conformity requirements in each SIP and will
govern the conformity decisions of federal
agencies and metropolitan planning
organizations (MPOs) required to make
conformity determinations. Federal agencies
will also have to comply with applicable
provisions of the SIP ii stronger than the
underlying basic federal regulations Cong.
Rec, S16958 (October 27. 19901 (Statement of
Senator Chaise).
States are also free under section 116 to
continue to apply any more stringent protect
review criteria In effect under state or local
law. The criteria in section 176(c)(3) are
merely the additional federal criteria that
must be met to qualify for federal approval
or funding of transportation projects,
programs, and plans prior to the date when
a revised implementation plan takes effect
under these amendments. Cong. Rec., S16973
(October 27, 1990) (Statement of Senator
Baucus).
Such regulations will provide guidance to
the states for the adoption of conformity
requirements in each SIP and will govern the
conformity decisions of federal agencies and
MPOs required to make conformity
decisions. Federal agencies will also have to
comply with applicable provisions of the SIP
If stronger than the underlying basic federal
regulations.” Cong. Rec., S16973 (October 27,
1990) (Statement of Senator Baucus).
Consequently, the EPA believes that if
a State wishes to apply more stringent
conformity rules for the purpose of
attaining air quality, It may do so, but
only if the same conformity
requirements are imposed on non-
Federal as well as Federal actions
States adopting more stringent
conformity rules may not cause a more
significant or unusual obstacle to
Federal agencies than non-Federal
agencies for the same type of action.
V
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No. 228 I Tuesday. November 30. 1993 / Rules and Regulations
Therefore. if a State decides to adopt
more stringent conformity criteria and
procedures. these requiremónt.s must be
imposed on all similar actions whether
the sponsoring agency is a Federal or
non-Federal entity; non-Federal entities
include State and local agencies and
private sponsors. Sections 51.851 and
51 853 have been revised accordingly in
the final rule.
If a State elects to impose more
stringent conformity requirements, they
must tiot be so narrowly construed as to
apply in practical effect only to Federal
actions. For example. if a State decides
that actions of employers with more
than 500 employees require conformity
determinations, and the Federal
government is the only employer of this
size in a particular jurisdiction, then
this rule would be viewed as
discriminatory and would not be
permitted Consequently, more stringent
State conformity rules must not only be
written to apply similarly to all Federal
and non-Federal entities, but they must
be able to be implemented so that they
apply in a nondiscriminatory way in
practice.
Moreover, when EPA approves State
conformity rules, the Agency should
determine that more stringent State
conformity requirements are directly
related to the attainment of air quality
in the State.
C Indirect Emissions
Exclusive Definition
--
1. Proposal
The proposal indicated that the Act
expressly prohibits Federal actions that
would “support In any way” activity
which does not conform to a SIP. Given
this language, EPA concluded that
indirect emissions must be Included In
any conformity determination, under
either subpart ‘I’ or W. The EPA
proposed two different definitions of
indirect emlsslons—”inclusive” and
“exclusive”—and invited comment on
both versions. The inclusive and
exclusive definitions are identical
except the phrase “and which the
Federal agency has and will continue to
maintain some authority to control”
appears only in the exclusive definition.
As described in the preamble to the
proposal (58 FR 13840), the exclusive
version of indirect emissions excluded
emissions that may be attributable to a
Federal action but that the Federal
agency has no authority to control. The
inclusive , n (58 FR 13839)
includes all emissions attributable to tha
Federal action, whether or not they are
under the control of the Federal agency.
The terms “caused by” and “reasonably
foreseeable” are common to both
definitions and are discussed elsewhere
in this notice.
2. Comment
The EPA received substantial and
diverse comments from air regulatory
agencies. the building industry, various
Federal agencies, environmental groups,
and individuals. The “inclusive”
definition of indirect emissions is
supported primarily by the air
regulatory agencies and environmental
groups. The “inclusive” version.
however, is viewed as unnecessarily
broad by many of the other groups.
Many Individuals and building industry
representatives objected to the inclusion
of indirect emissions in either approach.
Commenters supporting the Inclusive
definition ,ointed out that this
approach provides the greatest
opportunity for States to prevent
Federal actions that could violate the
NAAQS. They indicated that to prevent
actions that could cause new or worsen
existing air quality violations, it is
necessary to consider not only the
Federal action, but all reasonably
foreseeable emissions caused by the
Federal action, whether or not they are
under the Federal agency’s controL
Commenters supporting the exclusive
version of indirect emissions argued
that It Is unreasonable to include
emissions that may be attributable to a
Federal action, but that the Federal
agency has no authority to control. As
stated in the March 15, 1993 preamble.
many of the Federal agencies reiterated
that this approach might require the
Federal agency to impose conditions on
the project (e.g.. mitigation) to
demonstrate conformity that would be
me ”1n!less since there would be no
effective Federal enforcement
mechanism.
A third group of commenters stated
that there should be no consideration of
indirect sources in the general
conformity rule. They cited section 110
of the Act as limiting Federal authority
to conduct indirect source review to
major Iederally.funded and federally”
sponsored actions. These comments are
addressed in section WE of this notice.
3. Response
a. Genemi—indirect emissions. As
described in the proposal, the Act
expressly prohibits Federal actions that
would “support In any way” activity’
which does not conform to a SIP.
Because this language is very broad.
EPA believes Indirect emissions must be
Included in any conformity
determination, under either subpart T
(transportation conformity) or W
(geperal conformity). As desaibed
below, congressional guidance is much
clearer for transportation conformity
than for general conformity. In fact,
there is virtually no information in the
Congressional Record specifically
directed at general conformity.
Therefore, In interpreting the statutory
Intent for the general conformity rule.
EPA believes it is helpful to consider
the guidance provided by Congress on
transportation conformity in section
176(c) of the Act.
Congress clearly intended the
transportation conformity rule to covur
the indirect emissions from vehicles
that would travel to and on highways
constructed with Federal support. Thus.
the conformity review does not focus on
emissions associated with only the
construction of the highway project. but
includes emissions from vehicles that
later travel to and on that highway The
general conformity rule onginates from
the same statutory language and so must
meet the same congressional intont.
As described above, the transportation
treatment provisions of the Act clearly
require consideration of indirect
emissions. Therefore, EPA concludes
that the general conformity rule must
also cover indirect emissions.
On March 15, 1993, EPA proposed
that as a legal matter, the statute could
be Interpreted to support either the
inclusive or exclusive definition and
both definitions were offered for public
comment. Ass result of the public -
comments and consultation with other
Federal agencies, the final rule
incorporates the exclusive definition of
indirect emissions. The exclusive
definition is selected because It meets
the requirements of section 178(c) of the,
Act, and It:
(1) Is consistent with the manner
indirect emissions are covered In the
transportation conformity rule,
(2) Can be reasonably Implemented.
and
(3) Best fits within the overall
framework of the Act.
As commenters noted, the Inclusive
definition would require the review of
more Federal actions, as described in
this rule, than the exclusive definition
- and, thus, could identify more cases
where an air quality violation is
possibly associated with a Federal
action. The inclusive definition.
however, is not selected for the
following reasons:
(1) MitIgation measures required
under this approach may not be
enforced.
(2) ILls not consistent with the
manner in which indirect emissions are
covered in the transportation rule,
(3) It would Impose an unreasonable
burden due to the Large number of
affected Federal actions, and
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Federal Register / Vol. 58. No. 228 / Tuesday. November 30 , 1993 / Rules and Regulations 63219
(4) It establishes an overly broad role
for the Federal government in attaining
the NAAQS.
b. Inclusive definition—enforcement.
The EPA sees no value to the
environment In promulgating a rule that
is unenforceable. The EPA agrees with
the point made by some commenters
that it is unreasonable to expect Federal
agencies to control indirect emissions
over which they have no continuing
authority to control. As stated In the
March 15. 1993 preamble, this approach
might result in a Federal agency
imposing conditions on the project (e.g.,
mitigation) to demonstrate conformity
that would be meaningless since there
would be no effective Federal
enforcement mechanism.
For example, the inclusive approach
could require a Federal agency to
impose restrictions on the title to land
that is being sold or developed. In such
cases these deed restrictions might
remain forever with the land.
Enforcement of these types of
restrictions is vezy difficult and is not
likely to be an effective approach.
Further, it is not reasonable to attach a
restriction to a deed forever, since the
land t se might change over time and.
certainly, the environment will change
over time—both of which may remove
or alter the need for the deed restriction,
which would nonetheless remain in
place since there is no mechanism to
remove it. In this example, EPA believes
that it is Impractical to use deed
restrictions to control emissions and
that the Federal agency would not
maintain control since there Is no
continuing program responsibility for
that Federal agency to control future
emissions associated with that land.
c. Inclusive definition —
trvnsportotion. In the inclusive
approach, the Federal agency Is made
responsible for emissions that are
reasonably foreseeable. This would
include emissions from on.site or off-
site fadlities. Assume, for example, that
the Federal Aviation Mvnlntstration
(FAA) approves an airport expansion
project which would require a general
conformity determination. The airport
expansion also includes a highway
Interchange construction project
needing a project level transportation
conformity approval. Additionally, it is
known that a cargo handling facility
will be constructed near that
interchange due to the airport
expansion. The project level
transportanon conformity r’view would
cover emissions from vehicle activity to
and on the highway Interchange, but
would not cover Indirect emissions
possibly associated with the airport or
cargo facility. Thus, the project level
transportation conformity review covers
direct and certain indirect emissions
associated with the highway
Interchange action Itself.
The general conformity Inclusive
approach could rely on the
transportation conformity review with
respect to vehicle activity to and on the
highway Interchange. In addition, the
general conformity inclusive approach
would specifically consider direct and
indirect emissions at the airport itself
and at the cargo facility. In contrast, the
exclusive approach, similar to the
project level transportation conformity
approach, covers direct and certain
indirect emissions associated with the
airport expansion action itself, but does
not specifically consider additional
Indirect emissions (i.e., the cargo
facility). Thus, the exclusive approach
appears to be more consistent with the
transportation conformity approach.
d. Inclusive definition —unzeosonoble
burden. The inclusive definition could
be Interpreted to include virtually all
Federal activities, since all Federal
activities could be argued to give rise to,
at least in some remote way, an action
that ultimately emits pollution. This
broadest interpretation of the statute
could Impose an unreasonable burden
on the Federal agencies and private
entities that would have been affected
by that definition. For example, since
the Federal government Issues licenses
for any export activities, an Inclusive
definition approach could go so fax as to
require the manufacture of the export
material and the transportation of the
same material to be subject to a
conformity review. Such an approach.
however, is very burdensome due to the
large number of export activities, the
fact that the licensing process is not a
factor in any SIP, and that the vast
majority of these manufacturing and
transportation activities may have Little
to no Impact on air quality. Thus, the
Inclusive approach goes far beyond the
set of Federal activities reasonably
related to the SIP.
The many Federal agencies subject to
the Inclusive approach would have been
required to document air quality
impacts from tens of thousands of
public and privato business activities
each year, even where the associated
Federal action is extremely minor. For
example, the Army Corps of Engineers
(COE) estimates that 65,000 of their
regulatory actions would have required
a conformity review In 1992 under the
inclusive definition. The COE permits
are often limited to a small portion of
a much larger project and, thus. may not
be the best mechanism to review the
larger project: e.g., one river crossing for
a 500 mile gas pipeline or a half-acre
wetland fill for a twenty acre shopping
mall.
The Federal agencies might also have
been required to expend substantial
resources in an attempt to enforce
mitigation measures for actions that are
outside their jurisdiction. Some delay to
these public and private activities
would have been expected as the
conformity requirements were carried
out. In some cases these Federal actions
would not take p lace at all as a result
of conformity consideration. In
addition, the threat of litigation over
this expansive list of actions would
have been significant. That is, projects
could have been delayed through
litigation simply due to arguments over
applicatiob of the conformity rule to the
project, even where the air quality
impacts were very minor.
Through public comments and by
communication with other Federal
agencies, the EPA received a large
number of examples of Federal
activities, a few of which are listed
below, that are not normally considered
in SIP’s, but could not clearly be said to
have absolutely no ties to actions that
result In emissions of pollutants.
(1) COE permit actions.
(2) The sale of Federal land.
(3) National Pollutant Discharge
Elimination System (NPDES) permit
issuance.
(4) Tra sznlssion of electrical power.
(5) Export license actions.
(6) Bank failures.
(7) Mortgage insurance,
Based on the public comments and
consultation with the other Federal
agencies. EPA believes that Congress
did not Intend the general conformity
rule to affect Innumerable Federal
actions. impose analytical requirements
on activities that are very minor in
terms of Federal involvement and air
quality impacts, and result in the
significant expense and delay that is
likely In an inclusive definition. Thus.
adopting the Inclusive definition
approach could have imposed en
unreasonable burden on these public
and private activities.
The Federal agencies would, in many
cases, be unable to reduce emissions
from sources that they cannot
practicably control. This would result in
the Federal action having to be
prohibited because a positive
conformity determination could not be
made. The EPA believes that the Act
does not Irnend to unreasonably restrict
Federal actions so that they are
generally prohibited In areas with air
quality problems. Instead, the Federal
agencies are required to control
emissions In a reasonable manner and
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63220 Federal Register/Vol. 58. No. 228 I Tuesday. November 30, 1993 I Rules and Regulations
States must develop general air quality
plans to achieve the NAAQS.
As commenters noted, the inclusive
definition would require the review of
more Federal actions, as described in
this rule, than the exclusive definition
and, thus, could identify more cases
where an air quality violation is
possibly associated with a Federal
action. Even with an approach that
relied heavily on air quality modeling.
however, there would still not be an
absolute assurance that a new violation
would not occur since there is
considerable uncertainty associated
with air quality modeling itself, due to
uncortainties in emissions and
meteorological data which drive the
models. In fact, neither the inclusive nor
exclusive definition approach would
objolutely assure that all possible
violations would be prevented since
neither proposed approach requires air
quality modeling for all Federal actions.
e. I.iclusive definition—Federal role.
Section 176(c) of the Act covers Federal
actions that support in any way actions
which could cause new or worsen
existing air quality violations, delay
attainment, or otherwise not conform
with the applicable SIP and the purpose
of the SIP. Clearly. Congress intended
Federal agencies to do their part In
achieving clean air. It is unlikely,
however, that Congress intended
Federal agencies to be responsible for
emissions that are not practicably under
their control and regarding which the
Federal agency has no continuing
program responsibility. The EPA does
not believe that It is reasonable to
conclude that a Federal agency
“supports” an activIty by third persons
over whom the agency has no
practicable control—or “supports”
emissions over which the agency has no
practicable control—based on the mere
tact that, if one Inspects the “causal”
chain of events, the activity or
emissions can be described as being a
“reasonably foreseeable” result of the
agsncy’s actions.
In fact, achievement of the clean air
goals Is not primarily the responsibility
of the Federal government. Instead,
Congress assigned that responsibility to
the State and local agencies in section
1O1(a)(3) of the Act: “air pollution
prevention (that is, the reduction or
elimination, through any measures, of
the amount of pollutants produced or
creaLod at the source) an4 air pollution
control at Its source lathe primary
responsibility of States and local
guiernmenb.” Similar to NEPA, section
2161cJ of the Act requires Federal
agencies to consider the environmental
consequenCes of their actions. Neither
statutory requirement, however.
requires the Federal agencies to
unilaterally solve local air quality
problems. Instead, the conformity rule
should be viewed In a manner that fits
within a broader view Including NEPA
activities by the Federal agencies and
State and local air quality planning and
regulatory actions. Together, these
activities provide the framework to
attain and maintain the NAAQS.
It is possible that a Federal action
could be taken which, together with
other reasonably foreseeable emissions
caused by the Federal action, could
cause or contribute ba violation of an
air quality standard or otherwise not
conform with the applicable SIP. The
exclusive definition is adequate to cover
Federal actions and meet the goals of
section 176(c) where the resultant
emissions are practicably under the
control of the Federal agency, and are
subject to a continuing agency -
programmatic responsibility. Where the
Federal control over the resultant
ereissions is relatively minor, the
problem is likely caused by multiple
pollution sources and a solution may be
impossible unless it Is directed at all the
contributing sources. This role is given
to the State and local agencies by
Congress and should not be interpreted
as the Federal agencies’ role under
section 176(c).
In a case where, through a NEPA
analysis. a violation is projected to
occur at a proposed private housing
development that receives a NPDES
permit or private shopping mall that
receives aCOE permit, the projected
violation is the result of the new
projected emissions from the
Independent private actions not subject
to Federal permit or approval and the
background concentrations, due to
existing local and areawide emission
sources. The appropriate solution to the
problem Is for the Federal agency to
ensure conformity of Federal actions to
the SIP by minimizing new emissions
from the Federal activities In a
reasonable manner and for the State and
local agencies to control the local and
areawide emissions under the SIP to the
extent needed to attain the NAAQS. The
Federal agencies’ responsibility should
be to assure that only those emissions
that the Federal agency can practicably
control, and that are subject to the
agency’s continuing program
responsibility, will be reasonably
controlled, not to attempt to limit other
sources’ emissions, which would
infringe on the air quality and land use
planning roles of the Slate or local
aguncy.
1. Exclusive definition—reasonable
implementation. In the exclusive
version, Indirect emissions Include only
emissions over which the Federal
agency can practicably control, and has
continuing program responsibility to
control. Unlike the inclusive definition
the exclusive definition does not requil
Federal agencies to adopt and enforce
mitigation measures that the agency
cannot practicably control and that the
agency has no continuing program
responsibility to control. As described
below, the exclusive definition does not
cover innumerable Federal actions, does
not require an agency to leverage their
authority, and does not generally
prohibit Federal actions in areas with
air quality problems.
Consistent with the above discussion.
and in order to clarify the scope of the
term “indirect emissions,” that term is
revised in the final rule. Specifically,
the meaning of the phrase in the
proposed definition regarding emissions
“which the Federal agency has and will
continue to maintain some authority to
control,” Is clarified In the final rule. In
the final rule, the definition of “indirect
emissions” Is limited to emissions “the
Federal agency can practicably control
and will maintain control over due to a
continuing program responsibility of the
Federal agency.” The meaning of the
words “practicably control” Is
discussed elsewhere in this notice and
through examples contained In the
notice. The meaning of “continuing
program responsibility” Is described
the examples below.
Assume, for example. the Army Corps
of Engineers (COE) issues a permit
authorizing dredging by a nonfederal
entity. In one case, the COE might
require the perniittee to transport and
dispose of the dredged material at a
specific location. In another case, the
COE might allow the permittee to
dispose of the dredged material at a
suitable upland disposal site. In the first
case, the CX)E has a continuing program
responsibility for air emission.
associated with the dredging and
disposal activities. In the second case,
the COE’s program responsibility is
limited to emissions associated with the
permitted dredging and does not
Include the disposal activity. However,
If the COE were to Impose conditions on
the operation and management of the
dredged material disposal site or
regarding subsequent development
activities on that site, mandating the use
of practices which would result in air
pollutant emissions, then these added
emissions would be a continuing
program responsibility of the CUE.
In another case, assume the Forest
Service permits a aki resort and imp
conditions regarding the constructic
and operation of the resort. Also asst
that housing development will occur
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Federal Register I Vol. 58. No. 228 / Tuesday, November 30, 1993 / Rules and Regulations 63221
nearby but on privately-owned land. In
this case, emissions from the
construction arid operation of the resort
are a continuing program responsibility
of the Forest Service and emissions from
the housing activities are not. Again, if
the Forest Service had authority to
impose conditions on activities at the
housing development and chose to
exercise that authority to Impose
conditions that would result in air
pollutant emissions, air emissions from
those conditions Imposed would be
within the Forest Service’s continuing
program responsibilit r.
With respect to the issue of indirect
emissions, the proposal pointed to the
language in section 176(c)(1) of the Act
which prohibits a Federal agency from
providing “support in any way
Ifor) any activity which does not
conform to an implementation plan.”
“Conformity to an implementation
plan” Is defined to mean that an activity
“will not—cause or contribute to any
new violation • ; increase the
frequency or severity of any existing
violation a ; or delay timely
attainment of any standard. S a a”
Given the “support in any way”
language, EPA has 1 in this rule,
interpreted section 176(c) of the Act as
requiring Federal agencies, in making
their conformity determinations, to
consider both the direct and Indirect
emissions resulting from their own
actions or from actions that they
support. However, nothing In those
words serves to clarify a precise
congressional intent regarding the scope
of coverage of indirect emissions (a term
which is not expressly referred to in
section 176(c)(1) of the Acti. In other
words, the words “support In any way”
do not, In themselves, dictate a
congressional preference between the
inclusive or exclusive definition of
Indirect emissions proposed by EPA.
The exclusive definition, which this
final conformity rule adopts, requires
that Federal agencies take Into account
only those indirect emissions that the
Federal action would support, that the
Federal agency can practicably control.
and are under the continuing program
responsibility of the agency. The EPA
believes this interpretation is the most
reasonable because It assures that
Congress’ primary Intent under section
176(c) of the Act Is met, namely, that
Federal agencies advance the purpose of
the SIP by controlling emissions from
those actions which they support, over
which they can practicably exercise
control, and for which they retain
continuing program responsibility.
The Clean Air Act does not define
“support” for the purposes of section
176(c) of the Act 2 If read in the broadest
conceivable manner, the “support in
any way” prohibition might be
interpreted to Include virtually all
Federal activities, since all Federal
activities could be argued to support, at
least in some remote way, an action that
ultimately emits pollution. The EPA
does not believe that Congress intended
the “support In any way” prohibition to
be interpreted In a manner that would
lead to such egregious or absurd
applications of sectIon 176(c) of the Act.
Where the language of a statute is
ambiguous. as is the case here, an
agency has the discretion to adopt an
interpretation that is reasonable.3
One possible approach in determining
how Far the “support in any way
prohibition” extends is to examine the
word “support” itself. Section 176(c)(1)
of the Act, by its terms, prohibits
Federal agencies from “support(ingl” an
activity which Itself “does not conform
to an implementation plan.” Thus, the
support prohibition cannot be triggered
unless and until a Federal agency’s
actions constitute support of a particular
activity. In the absence of a statutory
definition for a word, courts typically
Lurn to the word’s everyday meaning.
The dictionary defines “support” to
mean (among other things):
• “to uphold by aid, countenance, or
adherence: actively promote the
interests or cause of”;
• “to uphold or defend as valid, right,
just, or authoritative”;
• “to provide means, force, or
strenRth that Is secondary to: back up”;
• .rto pay the costs of’ ;
• “to supply with the means of
maintenance or to earn or furnish
funds for maintaining”; and
• “to provide a basis for the existence
or subsistence; serve as the source of
material or Immatarlal supply a a a ’
Webster’s Third New International
Dictionary. As the above list makes
evident, the everyday meaning of
“support” could range from activity that
is merely facilitation or encouragement
to activity wherein the actor assumes an
ongoing responsibility and provides
continuing assistance in order for the
subsequent endeavor to be realized.
Applying the dictionary definition of
“support” In the context of the
conformity rule, It Is apparent that
Federal actions that might be said to
Ifl. n,si definitions section for part D of title
I. sectIon 171 (42 U.S.C. 7501). also does aol define
“support.”
Chevron, 1) S.A., Inc. v. Natural Resoiutes
Define. Council. Thc, 487 U S. 817, 842—3 (1904).
‘Of comes, section 176(c) (1) also prabiblia
Federal a$encles from eaga$ln In, providing
RanrIaI assletenc. lot. lIcensing or permitting, or
approving, such activities.
“support” subsequent projects similarly
could range from mere facilitation to
continuing responsibility The EPA does
not believe that Congress intended the
term “support in any way” to
encompass each and every one of thece
separate definitions, Including those
where the relationship between the
Federal agency’s action and the
subsequent activity is attenuated. Thus,
EPA believes it is reasonable to select a
definition of “support” that focuses on
the extent to which the Federal agency
has continuing program responsibilities,
end whether it can practicably control
emissions from its own and other party
activities. The exclusive definition
requires Federal agencies to consider
only those direct and indirect emissions
over which, under their legal
authorities, they can exercise and
maintain practicable control and over
which they have continuing program
responsibilities. As noted previously,
this approach is consistent with the
purposes of section 176(c) of the Act.
That section places certain prohibitions
and responsibilities on Federal agencies.
The EPA does not believe that Congress
intended to extend the prohibitions and-
responsibilities to cases where, although
licensing or approving action is a
required Initial step for q subsequent
activity that causes emissions, the
agency has no control over that
subsequent activity, either because there
Is no continuing program responsibility
or ability to practicably control. For that
reason, EPA believes it is not reasonable,
to conclude that the Federal agency
“supports” that later activity, within the
meaning of section 176(c) of the Act.
As Implemented by this rule, section
176(c) of the Act requires that a Federal
agency ensure conformity with an
approved state SIP for those air
emissions that would be brought about
by agency action, and that the agency
can practicably control, and that are
subject ta a contInuing program
responsibility of that agency. A Federal
agency has no responsibility to attempt
to limit emissions that do not meet
those tests, or that are outside the
Federal agency’s legal control.
Moreover, neither section 176(c) of the
Act nor this regulation requires that a
Federal agency attempt to “leverage” its
legal authority to Influence or control
nonfederal activities that it cannot
practicably control, or that are not
subject to a continuing program
responsibility, o that lie outside the
agency’s legal authority.
For example, neither section 176(c) of
the Act nor this regulation requires a
Federal agency to withhold a Federal
grant of financial assistance to a grant
applicant that otherwise satisfies legal
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63222 Federal Register /Vol. 58.
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requirements in order to obtain
assurances from the applicant with
respect to that applicants activities that
the agency cannot practicably control.
or that are beyond the agency’s
rontinuing program responsibilities, or
that fell outside the Federal agency’s
1 u:isdic.tion.
As described in the proposal.
development that is related to the
Federal action only in a manner that
provides daily services such as
restaurants, schools, and banks and
which are located off Federal property.
may be considered incidental rather
than indirect emissions. Such activities
and emissions are expected to be small
relative to other emissions from the
Federal action and are difficult or
impossible to precisely locate and
quantify. Thus, an accurate air quality
and/or emissions analysis is not
possible. Therefore, emissions from the
daily services activities should be
considered incidental and would not be
included as indirect emissions in the
conformity analysis even under the
inclusive definition. Under the
exclusive definition, incidental
emissions are generally not covered for
the additional reason that they are
generally not under the Federal agency’s
control and continuing program
responsibility.
g. Exclusive defiviitiorr—Federal role.
The exclusive definition isolates certain
types of Federal actions where the role
and responsibility of the Federal agency
itself is major. For example, in Federal
construction projects such as buildings
or laboratories, the Federal agency has
substantial and continuing authority
and responsibility to manage that
activity, Thus, the Federal contract
manager should also be responsible for
assuring that the construction activities
conform to the applicable SIP.
.By focusing on such major Federal
actions, this approach would not require
a conformity analysis for certain Federal
actions that are necessary for, but
incidental to, subsequent development
by private parties. For example, the
exclusive definition does not generally
require that a COE fill permit needed for
a relatively small part, portion, or phase
of a twenty acre development on private
land would somehow require the COE
to evaluate all emissions from the
construction, operation. and use of that
larger development.
The exclusive definition, In effect.
includes an mmlnation of the duties,
continuing program rasponsibthues.
and controls that a Federal gency can
practicably Impl nt. When the
Federal agency owns or operates a
facility. Federal responsibility for the
direct and Indirect emissions from that
facility is clear. However, farther down
the spectrum of “assistance,” where less
and less Federal control and program
responsibility may be found, a point is
reached where the Federal agency
should not have the same degree of
responsibility for assuring the
conformity of subsequent privately
generated emissions, especially the
indIrect emissions from that action.
Dy controlling the direct and Indirect
emissions under the practicable control
and continuing program responsibility
of the Federal agency. the conformity
rule assures that Federal agencies take
appropriate and reasonable actions to
support the purpose of the SIP, to meet
all specific SIP requirements, and to
assure that the SIP is not undermined by
Federal actions. The exclusive
deflnition assures that Federal actions
will meet the intent of section 176(c)
and that States will retain the primary
responsibility to attain and maintain the
air quality standards.
In support of the “exclusive” version,
many Federal agencies have stated that
it is unreasonable to withhold a
conformity determination where it is
impracticable for the Federal agency to
remedy the situation. In such cases, they
argue that the State and/or local
jurisdictions should regulate the
activities outside the Federal agency’s
jurisdiction. On the other hand, some
commentate have argued that reliance
on State or local action to control these
off-site activities could be viewed as
requiring the State to amend the
applicable SIP to conform to the Federal
action, rather than a rule that requires
the Federal action to conform to the
applicable SIP with respect to all
subsequent emissions. For the reasons
described above, EPA concludes that it
would be unreasonable to interpret
sectIon 178(c) of the Act as requiring
Federal agencies to take responsibility
for emissions that they cannot
practicably control and for which they
have no continuing program
responsibility.
The conclusion that the exclusive
definition best fits with the balance that
Congress established in the Act between
Federal epd State/local responsibility Is
supported by the Supreme Court’s
analysis in Its 1989 decision in
Robertson v. Methow Valley Citizens
Council, 490 U.S. 332 (1989). In that
case, the Court addressed the question,”
(w)hether the Forest Service may issue
a special use permit for a recreational
use of national forest land in the
absence of a fully developed plan to
mitigate environm ntal harm.” Id. at
336. In that case, the imposition of such
a mitigation plan was within the
jurisdiction of State and local agencies,
not the Forest Service The Court held
that the Forest Service’s authority to
issue the permit was not contingent
upon the State and local agencies taking
action. As the Court explained, “(i)n
this case, the off-site effects on air
quality and on the mule deer herd
cannot be mitigated unless non-Federal
government agencies take appropriate
action. Since It Is those state and local
governmental bodies that have
jurisdiction over the area in which the
adverse effects need be addressed and
since they have the authority to mitigate
them, It would be incongruous to
conclude that the Forest Service has no
power to act until the local agencies
have reached a final conclusion on what
mitigation measures they consider
necessary.” Id. at 352—53 (footnote
omitted). For the same reasons. EPA has
concluded that it would be
“incongruous” to read section 176(cl of
the Act as rendering the ability of
Federal agencies to perform their
congressionally-assigned missions
contingent upon State and local
agencies imposing mitigation measures
over activities that they and not the
Federal agencies, can practicably
control, and have a continuing program
responsibility to control. Since the
inclusive definition Would, In many
cases, require Federal agencies to
withhold action unless and until a
State/local agency Imposes mitigation
measures over activities that are outside
the Federal agendas’ control, the
inclusive definition would upset the
balance between Federal and Stale/local
responsibilities for achieving clean air,
and would unjusuftably frustrate
Federal agencies from performing their
congressionally-assigned statutory
responsibilities,
The person’s activities that fall
outside the Federal agency’s continuing
program responsibility to control are
subject to control by SLate and local
agencies. In awn, expanding the Federal
agencles responsIbilItIes to extend to
emissions that are outside their
continuing program responsibility to
control (which the Inclusive definition
would have done) would upset the
balance between Federal and State/local
roles that Congress established in the
Act and would Infringe on the air
quality roles of the State or local agency.
h. Exclusive definition-—examples.
Example 2:
Assume that the FAA Is considering
approval of an airport expansion in a
serious ozone nonattainment area and
that adjacent development of an
industrial park is known to depend on
the FAA approval. Assume: (1) The
airport expansion would result in an
Increase In emissions of 50 tons/year of
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No. 228 I Tuesday. November 30, 1993 1 Rules and Regulations 63223
volatile organic compounds (VOC) due
to vehicle and airport related emissions,
and (2) assume that the adjacent
industrial park would emit 200 tons!
year of VOC.
Under the exclusive definition, the
FAA must show that the 50 tons/year of
VOC from the airport related activities
conforms to the SIP. The FAA, however,
is not responsible for the 200 tons/year
of VOC from the industrial park. The
conformity rule provides several ways
to show that the 50 tons/year of VOC
conforms to the SIP:
(1) The airport expansion Is
specifically included In the applicable
SIP’s attainment demonstration.
(2) The 50 tons are offset by
reductions obtained elsewhere by the
FAA,
(3) The 50 tons are determined to be
consistent with the SIP emission budget
by the State air quality agency.
(4) The State commits to revise the
SIP to accommodate the 50 tons.
(5) The airport expansion Is Included
In the conforming transportation plan.
or
(6) In some cases, It Is demonstrated
that there is no Increase in emissions in
a build/no build scenario. (Note that
project-specific modeling for ozone Is
not generally considered en option
since, as a technical matter, ozone
models are not sufficiently precise to
show such Impacts unless the project Is
a large portion of the total area
inventory.)
Example 2: In another case, the same
airport expansion might be In a CO or
PM—b nonattainment area where a
local scale modeling analysis Is
determined to be needed by the State
agency primarily responsible for the
SIP. In such cases, the modeling
- analysis must consider emissions due to
the airport activity and emissions due to
any existing sources, Including
background concentrations. Emissions
from the future Industrial park would
not, however, be required as part of the
modeling analysis since such emissions
are not covered by the conformity rule.
Example 3: A Federal action to lease
land to a private developer does not In
Itself have any Immediate direct or
indirect air pollution emissions. The
lease does, however, allow future
activities by the private developer on
the leased Federal land that could result
in indirect air pollution emissions. This
can be seen clearly in cases where the
le . ing actzcn is accompanied by a
description .f future activities that the
developer plans to undertake on the
leased Federal land which would result
in emissions and where the lease
contains emission limits Imposed on the
use of the leased Federal land. Where
the Federal agency has the authority to
Impose lease conditions controlling
future activities on the leased Federal
land, these emissions must be analyzed
in the conformity determination.
Example 4: Where a COE permit is
needed to fill a wetland so that a
shopping center can be built on the fill,
generally speaking. the COE could not
practicably maintain control over and
would not have a continuing program’
responsibility to control indirect
emissions from subsequent
construction, operation, or use of that
shopping center, Therefore, only those
emissions from the equipment and
motor vehicles used in the filling
operation. support equipment. and
emissions from movement of the fill
material itself would be included in the
analysis. If such emissions are below the
de minimis levels described below for
applicability purposes (section 51.853),
no conformity determination (section
51.858) would be required for the
Issuance of the dredge and fill permit.
I. Exclusive definition—types of
Federal actions covered. The following
types of Federal actions, among others,
are likely to be subject to conformity
review under the exclusive definition.
Some of these actions are likely to be
above the de minimis levels,
controllable currently by the Federal
agency, and the Federal agency will
maintain an ability to control the
emissions In the future through
oversight activities.
(1) PrescrIbed burning activities by
Federal agencies or on Federal lands:
The burning Is conducted by the Federal
agency Itself or Is approved by the
Federal agency, consistent with a
Federal land management plan, and the
Federal land manager maintains an
oversight role In either case.
(2) Private actions taking place on
Federal land under an approval, permit,
or leasing agreement, such as mineral
extraction, timber harvesting, or 8k1
resort construction: A lease agreement,
for example. may be subject to
mitigatIon conditions as needed to show
conformity and the Federal land
manager will maintain an oversight role,
including the enforcement of lease
agreements. The conditions needed to
show conformity would also be
enforceable by the State and EPA
through the SIP (as described elsewhere
In this notice).
(3) Direct emissions from COE permit
actions: The COE will evaluate the
direct emissions from the activity
Involving the discharge of dredged or
fill material. If these direct emissions
were to exceed the de mlnimls level, the
COE has legal authority to impose
permit conditions to control those
emissions.
(4) Wastewater treatment plant
construction or expansion actions:
Construction projects funded by EPA
may be conditioned so that the new
treatment capacity conforms to growth
assumptions in the SIP. The EPA
maintains a continuing control authority
since future expansion would need a
new approval action. Emissions from
this activity can be quantified and
located only on a regional scale; they
cannot be located In a precise manner
and subject to a microscale analysis.
Such emissions are nevertheless
considered reasonably foreseeable, if
only on a regional scale. The SIP
planning generally takes into account
the growth limiting effects of
wastewater treatment capacity and.
thus, changes to the capacity must be
shown to conform to the SIP. This is an
area where Congress clearly desires a
conformity review, as evidenced by
section 318 of the Act.
(5) Federal construction projects such
as buildings, laboratories, and reservoirs.
on Federal land: Contracts to complete
construction projects funded by GSA or
other Federal agencies may be
conditioned so that the new
construction meets mitigation measures
as needed to show conformity. The
Federal contract manager would
maintain an oversight role to assure that
all the contract agreements are met.
(8) Project level minerals managemeilt
leasing activities: The lease agreement
may be structured as described in item
b above.
(7) New airports or airport expansion
actions: Grants to fund projects or
approval by the FAA to build projects
may be conditioned so that the new
projects meet mitigation measures as
needed to show conformity. Under
FAA’s funding statute, grants for new
airports, new runways, and major
runway extensions must include such
conditions. The grant conditions are
enforceable through the grant
agreements. Failure of the airport
owner/operator to comply with grant
conditions may result In suspension or
termination of Federal assistance.
(8) Actions taking place on Federal
lands or in Federal facilities: The
Federal agency has and will maIntain
the ability to controlemnissions in many
other activities, such as activities in
National Parks, on military bases, and in
Federal office buildings.
j. Exclusive definition—types of
Federal actions not covered. The
foUowlng types of Federal actions.
among others, are not covered by the
conformity rule under the exclusive
definition approach.
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63224 Federal Register / Vol. 58. No. 228 / Tuesday, November 30. 1993 I Rules and Regulations
(1) ActivIties associated with property
disposal at military closuie and
realignment bases through sale or other
transfer of title. This includes
transactions where there Is an
enforceable contract for the sale or other
transfer of title that requires delivery of
the deed promptly after the
requirements of Comprehensive
Environmental Response. Compensation
and Liability Act (CERCLA) (42 U.S.C.
9620(h)(3)) have been mat whether or
not the property is occupied before
closing of title under the contract or a
related instrument. In this case, the
military does not retain continuing
authority to control emissions other
than those associated with the CERCLA
cleanup.
(2) Leasing agreements associated
with military base closure and
realignment, where transfer of title Is
required to be conveyed upon
satisfaction of the CERCLA
requirements, and where the military
service leases the property without
retaining continuing authority to control
the property except as necessary to
assure satisfaction of CERCLA
requirements.
(3) CertaIn Indirect emissions related
to a COE permit for the discharge of.
dredged or fill material. The indirect
emissions from development activities
related to COE permit actions are not
covered where such emissions are not
subject to the continuing program
responsibility of the COE, or cannot be
practicably controlled by the CO&
(4) NPDES permit actions: Many of
these actions are taken under State rules
anj. as such, are not Federal actions.
The Issuance of the Federal permit has
no direct emissions, but may have
considerable indirect emissions from
future development of permitted
facilities. However, where EPA Issues a
NPDES permit, for example, to an
industrial or housing development, the
EPA does not maintain an authority to
control emissions from the development
and, thus, the Indirect emissions from
the development are not subject to the
conformity rule.
D. Indirect Emissions—Definition of
“Caused Br.
1. Proposal
During the course of discussing the
inclusive approach. the proposal offered
examples of what emissions would be
considered ‘ caused by” a Federal
action. ‘1 proposal Mated that
indusive Indirect emissions that would
be considered “caused by” the Federal
action are those emissions from sources -
wh1 h are dependent upon the Federal
action and would only be constructed
and/or operated because of that Federal
action. Such emissions would include
emissions from any on-site or off-site
support facility which would not be
constructed or ln ease its emissions
except as a result of the Federal action.
The proposal stated that indirect
emissions Include emissions from
mobile sources that are attracted to a
facility, building, structure, or
installation; for example. indirect
emissions resulting from roads, parking
facilities, retail, commercial and
industrial facilities, airports, maritime
ports, sports centers, and office
buildings.
Where mobile sources contribute
Indirect emissions, the proposal noted
that the Federal agency should attribute
only those emissions that are caused by
the Federal action. For example. not all
the emissions from thps to and from a
workplace or retail site are likely to be
fully “caused” by the site itself. The
road to and from the site, the origin and
ultimate destination points of the trip.
and other factors can be used to
determine the portion of Indirect
emissions caused by the Federal action.
2. Comment
One commenter requested
clarification that EPA’s intention Is to
use a “but for” test concerning Indirect
emissions caused by a Federal action.
3. Response
The EPA agrees with this comment, as
discussed in the proposal and Includes
a definition of “caused by” in the final
rule to address this concern. Since the
term “caused by” Is used In both the
definitions of “direct misslons” and
“indirect emissions,” the definition in
theflnalrule a lsoappliestoboth
As aresult of EPA adopting the
exclusive approach, a Federal agency
will need to address the “caused by”
issue only with respect to those
activities which the Federal agency
controls, Therefore, many of the
activities that would have been covered
under the inclusive definition only by
reason of the “caused by” requirement
will not be covered uncter the exclusive
definition due to lack of Federal agency
control. This would be true generally for
the examples In the “proposal”
discussion Immediately ibove, which
were offered In the context of the
inclusive definition.
H. Indirect Emissions—Sections
I 1O(a)(5)(A) and 131 of the Act
1. Proposal
Section 110(a)(5)(A) of the Act
prohibits the Ailministrator from
requiring a State to adopt a general
indirect source review program. Section
131 of the Act indicates that land use
control authority resides with the cities
and counties. As noted in the proposal.
this language could be interpreted to
restrict EPA’s authority to regulate
indirect emissions as part of the
conformity rule. However, for certain
federally assisted indirect sources,
section 11O(a)(5)(B) of the Act expressly
allows the Administrator to promulgate.
Implement, and enforce indirect source
review programs under sectIon 110(c) of
the Act. The EPA believes that this
language in section 110 of the Act is
consistent with the broad mandate in
section 176(c) of the Act to prohibit
Federal agencies from taking actions
which “support In any way” any
activity which does not conform to an
applicable SIP.
2. Comment
Several coinmenters disagreed with
EPA’s interpretation and argued that
sections 110 and 131 prohibit EPA from
promulgating a rule, such as the March
15, 1993 proposal, that covers Indirect
emissions. These commenters point to
the legislative history of the 1977
amendments to the Act, which added
section 110(a)(5) and an earlier version
of sectIon 176(c), as evidence that
Congress has explicitly prohibited EPA
from seeking to regulate private
development or land use by Federal
review of indfrectsouzces. By rejecting
efforts by EPA in the mld-1970’s to
restrict parking spaces and require
preconstructlon review of parking
structures associated with Indirect
sourms through regulation, and by
adopting the explicit prohibition In
section 110(a)(5). they argue, Congress
clearly Intended that Federal agencies
not Involve themselves In controlling
Indirect sources or interfering In local
land use decisions. In addition, they
find it significant that Congress did not
revise or delete section 110(a)(5) even
when It added arguably stricter language
to section 176(c) In 1990. Moreover, to
the extent that section 110(a)(5)(B) does
permit Federal review of certain Indirect
sources, these commenters contend that
such review Is restricted to “major”
federally-assisted Indirect sources and
federally-owned or operated Indirect
soumee only.
3. Response
For the reasons described In the
preamble to the proposal and as -
discussed above regarding the Inclusive!
exclusive issue and further below, EPA
disagrees with these comments. The
EPA has noted that section 11O(a)(5)(B)
expressly allows the Administrator to
promulgate, Implement, and enforce
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Federal Register / Vol. 58, No. 228 I Tuesday, November 30 , 1993 ‘ Rules and Regulations 63225
indirect source review programs under
section 110(c) for certain federally
assisted indirect sources. However, the
EPA also believes that section 176(c)
provides independent authority for EPA
to require SIP revisions concerning
conformity requirements that include
provisions addressing indirect
emissions resulting from Federal
actions. Such provisions are necessary
to prevent Federal actions, as required
by section 176(c)(1)(B), from causing or
contributing to NAAQS violations.
The EPA believes that the Comments
do not fully reflect the legislative
history of the 1977 amendments to the
Act regarding the congressional
concerns that prompted adoption of
section 110(a)(5)(A). The congressional
Conference Committee report does
indeed discuss attempts by EPA to
promulgate measures controlling
parking supply, but, unlike the
commenters’ statements, points out that
these efforts came only after the EPA
Administrator had determined that all
the SIP’s submitted to meet the 1970 Act
requirements had failed to ensure
maintenance of the NAAQS. especially
those for motor vehicle-related
pollutants. Congress objected to EPA’s
proposed parking restrictions, not
simply because they were intended to
control Indirect sources, but primarily
because Congress believed it was a
misdirected attempt to reduce motor
vehicle traffic that only succeeded in
shifting the air pollution control
emphasis away from the major source of
the problem, namely the cars
themselves.
(The EPA’s! efforts based on Indirect
control of the use of automobiles through
restrictions on puking lots, shopping centers
and other indirect sources, rather than full
and prompt controls for new autos, trucks.
buses, and motorcycles are Inherently
Inequitable. It transfers from the motor
vehicle manufacturers to the public and to
indirect source owners and operators the
burden of protecting public health from
dangerous vehicle emissions. HR. Rep. No.
1915. 94th Cong.. 3d Sass. 221 (1978).
So, while ills true that Congress
sought to reverse these specific indirect
source measures and, thereby. reallocate
the regulatory burdens, it also
acknowledged that even after new car
emissions requirements were adopted,
additional control measures would be
needed by many nonattainment areas If
the NAAQS were to be attained and
maintained, and such measures could
Include regulation of Indirect sources,
suth . ri w facilities which attract
hvyai iomobiI. tre.fflc” Id. at 222.
Consequently, although Congress
restricted the Administrator’s authority
to require States to adopt an Indirect
source review program. it purposely did
not remove that authority completely
Again, as stated in the Conference
report: “The Committee believes that its
proposal meets the specifications
of an acceptable and workable program.
It tightly restricts the Administrator’s
authority with respect to indirect
sources by assuring that necessary
review programs for non.federally
assisted indirect sources will be
designed and implemented by local and
State governments.” Id. at 227. And, as
the report notes elsewhere: “Of course,
the prohibitions on the Administrators
implementation and enforcement of a
review program’ • ‘are not applicable
with respect to federally.owned or
federally-assisted indirect sources.” Id.
at 224. Nothing in section 176(c). which
is only concerned with federally-
assisted actions, is inconsistent with
this expression of Congress’ intent with
respect to section 110(a)(5). Moreover,
the tact that the section 110(a)(5)
prohibition and the requirement that
Federal actions conform to the SIP
under sectIon 176(c) were both added
when the Act was amended in 1977
does nothing to further the commenters’
argument since it supports EPA’s
position as well. Given the thorough
and detailed consideration Congress
expended when it limited EPA’s
authority to review Indirect sources, it
would have been easy for Congress to
add language In sectIon 176(c) statIng.
for example, that the section 110(a)(5)
restriction on Indirect source review
applied there also. Not only has
Congress not limited this provision, but
on the two separate occasions it has
addressed sectIon 176(c) of the Act it
has consistently stated the scope of the
provision’s coverage requires a
determination of conformity for “any
activity” that a Federal agency
“supports in any way.” Indeed, EPA’s
view Is consistent with the exception to
the prohibition In section 1 1O(a)(5) for
federally-assisted, operated, or owned
indirect sources, since section 176(c) of
the Act applies only to actions
supported or undertaken by Federal
agencies. The EPA, therefore, concludes
that the prohibition In section 110(a)(5)
of the Act does not limit EPA’s
independent authority under section
176(c) of the Act.
The EPA also does not agree with the
comment that the authority provided
EPA under section 1 10(a)(5)(B) to
control certain Indirect sources is
limited only to major indirect sources,
such as the ones enumerated therein.
The discussion In the legislative history
strongly suggests that the use of the
word “major” was not intended to
denote a limitation on the type of
indirect sources EPA may review
Rather, the term as used merely
describes certain large-scale. hence
“major,” projects of the type which, like
the ones listed, normally qualify for
Federal funding assistance. For
example, the Conference Committee
report states: “An exception to this
(section 110(a)(5fl prohibition is made
for major Federally funded public works
projects such as highways and
airports S Rep. No. 16. Vol 3.
95th Cong., 2d Sess. 506 (1978). But
other statements in the report show that
EPA’s review is not limited to such
projects only: “The Administrator is
prohibited from promulgating
regulations relating to indirect source
reviews except with respect to Federally
assisted highways, airports or other
indirect sources assisted, owned or
operated by the Federal government”
Id. at 4382 (Vol. 5)(emphasis added)
Moreover, the conformity rules
regulate emissions, not local land use or
zoning requirements. These rules do not
infringe on the authority of local
governments to control land use; rather,
they restrain the ability of Federal
agencies to support projects that cause
certain air quality problems. Nothing in
these rules inhibits the ébility of local
governments to set their own
requirements with respect to such
projects. Thus the conformity rules are
not inconsistent with section 131 of the
Act.
F. Indirect Emissions—Reasonably
Foreseeable Emissions
1. Proposal
As described in the preamble to the
March 15, 1993 proposal, the indirect
emissions that are “reasonably
foreseeable” must be Identified at the
time the conformity determination is
required, though this would include
emissions that would occur later in time
and/or at a place other then the action
itself, The proposal stated that an
agency Is not required to speculate or
guess at potential future Indirect
emissions which are conceivable but not
identifiable. In addition, the proposal
indicated that descriptions of emissions
contained in documents such as
employment and financial forecasts and
NEPA documents should be considered
reasonably foreseeable emissions.
As described In the proposal, certain
types of Federal actions occur an the
programmatic level rather than on a
project level, and the specific air quality
and emissions Impacts associated with
Individual projects under such
programs may not be known. In
Instances where a Federal action is on
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63220 Federal Register I Vol. 58.
No. 228 / Tuesday. November 30. 1993/ Rules and Regulations
a programmatic level and ills
impossible to accurately locate and
quantify emissions and, therefore.
impossible to accurately complete the
air quality and emissions analysis
specified In S 51.858. such emissions
should not be considered reasonably
foreseeable.
The proposal also stated that, for
purposes of defining “indirect
emissions.” development that is related
to the Federal action only In a manner
that provides daily services such as
restaurants and banks and which are
located off Federal property, may be
considered incidental rather than
indirect emissions under certain
circumstances. In such cases, specific
emissions from the daily services
activities should be considered not
reasonably foreseeable and not included
as indirect emissions In the conformity
analysis.
2. Comment
The EPA received comments
requesting clarification of the phrase
“reasonably foreseeable emissions.”
Several commenters requested EPA to
incorporate a definition of this term in
the rule. One commenter stated that
EPA’s definition of reasonably
foreseeable emissions would require
private developers to account for,
assess, and if necessary, mitigate the
impacts of completely unrelated
projects developed by other private
parties. The commenter also objected to
certain environmental analyses that rely
on worst-case assumptions end
exaggerate the impacts due to possible,
but unlikely, future growth scenarios
and where it Is Impossible to assess
local air quality impacts.
3. Response
a. Documentation. In order to clarify
the term, EPA has: (1) Added a
definition of “reasonably foreseeable
emissions” in the regulatory portion of
the rule; (2) added the discussion below
and (3) listed certain Federal actions
that are not considered reasonably
foreseeable in § 51.853(c)(3) and,
therefore, exempt from conformity
requirements. The definition Is similar
to the discussion in the proposal,
however, there are some differences as
described below:
Reasonably Foreseeable Emissions are
projected fut Indirect emissions that are
identified at the tone the conformity
detennhiation Ii made; the location of mach
emissions Is known and the emissions axe
quantifiable. as deseeibed and documented
by t’. Federal agency based on its own
information and after reilewing any
Information presented to the Federal agency.
Unlike the proposal. the final
definition does not require a Federal
agency to use all emissions scenarios
contained in financial documents or
environmental analyses. That approach
could not in many cases be
implemented since the various
documents contain quite difforent
scenarios and a single document
sometimes contains multiple emissions
scenarios. In addition, some scenarios
could be based on speculation. The
definition does not require the use of
worst-case assumptions. unlikely
growth scenarios, or analyses where it is
impossible to assess local air quality
Impacts. Further, under an exclusive
definition, the conformity review may
be covering a smaller set of indirect
emissions than, for example, the
emissions scenarios contained in an
environmental impact statement.
The final rule requires the Federal
agency to review all of its own
information and all information
presented to the Federal agency.
Selection and documentation of the
relevant emissions scenarios for
conformity review Is the responsibility
of the Federal agency and should be
based on reasonable expectations of
future activity resulting from the
Federal action.
b. Actions not reasonably foreseeable.
In order to provide further clarification,
EPA listed some Federal actions that are
not considered reasonably foreseeable In
§ 51.853(c)(3) and are, therefore. exempt
from conformity requirements. This list
is Intended to provide examples and Is
not Intended to be a complete listing of
such activities. Additionally, actions for
which emissions cannot be accurately
quantified, such as the Implementation
of trade laws and export trade
promotional activities, are not
considered reasonably foreseeable. As
discussed below, these actions include
pro am scale leasing actions and
electric power marketing activities that
involve the acquisition, sale, and
transmission of electric energy.
(1) Program Level Leasing Actions
In actions such as outer continental
shell lease sales, it will often be difficult
or impossible to locate and quantify
emissions early in the Federal agency
review process. Thus, the emissions
may not be reasonably foreseeable.
Further, a conformity review Is
unnecessary at that time since the
Federal agency must take future actionS
related to the lease sale which are
subject to conformity review. That Is,
the exploration and developmei t
actions at the project level would be
subject to conformity review prior to
any action that would actually result In
emissions In such cases, the EPA
believes that a conformity review jc not
required prior to the project level
analysis.
On the other hand, where a
conformity review, such as a lease sale,
can be and is made on the program level
rather than the project level, subsequent
project level actions which Implement
the conforming program do not require
new conformity reviews. This approach
is consistent with language in the
preamble to the proposal. For
clarification. EPA added this concept in
the final rule: S 51.853(c)(4) exempts
actions that merely implement a
decision to conduct or carry out a
policy. plan, program, or project where
the policy, plan, program, or project
conforms.
(2) Electric Power Marketing
Federal activities in the marketing of
electric power are exempt from
conformity review for several reasons
In many cases, the resulting emissions
from the use of the electrIc power
cannot be precisely located or
quantified and, thus, are not reasonably
foreseeable. The marketing agreements
would also be exempt since customers
of the Federal agency could obtain
electric power from other public (non-
Federal) or private electric utilities even
If It were not provided by the Federal
agency. Thus, emissions from these
customers are not “caused by” the
Federal action because they would
occur in the absence of the Federal
action. Further, SIP’s assume electric
power will be available in future growth
projections. Thus, the delivery of
electric power would not be
Inconsistent with the SIP.
c. Uruelcted projects. The definitions
of “reasonebly foreseeable emissions,”
“indirect emissions (exclusive),” and
“caused by” make It cleat that
“completely unrelated projects.” as
stated by a coinmenter, are not subject
to the applicability analysis. However.
where en sir quality modeling analysis
lathe basis of a conformity
determination, the modeling analysis
should account for emissions due to
existing sources together with covered
emissions from the Federal action,
consistent with EPA modeling guidance.
G. Indirect EmissIons—Definition of
Federoi Activity
1. Proposal
Although EPA included a definition
of “Federal action” In the proposal. that
definition merely repeated language
fromsectlon 178(c) of the Act and did
not clarify th. meaning of the statutory
language. The preamble to the proposal.
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Federal Register I Vol. 58. No. 228 I Tuesday. November 30,1993 / Rules and Regulations 6322;
however, made it clear that EPA
intended the concept to include future
development activities associated with a
Federal action, under either definition
of indirect emissions. Under the
exclusive definition, EPA proposed that
consideration of such emissions would
be limited to those future development
activities which the Federal agency
could control and would continue to
maintain some authority to control.
2. Comment
The building industry commented
that under Atlantic Terminal Urban
Renewal Area Coalition v. New York
City Department of Environmental
Protection, 705 F. Supp. 988 (S.D.N.Y.
1989), the definition of Federal activity
should be limited to the immediate
Federal action, in that case a
Department of Commerce (DCC) grant
for demolition, and should not include
any subsequent activities even where
they are facilitated by the Federal
action, in that case a subsequent
housing development built on the site of
the demolition. Several commenters
also requested that EPA clarify which
activities are covered under the
conformity rule.
3. Response
The EPA does not agree that Federal
actions should always be Interpreted so
narrowly. The EPA acknowledges that
the court in Atlantic Terminal indicated
in dicta that, In that case, the Federal
activity under consideration should be
limited to the demolition activity.
However, that assessment was made in
the context of a factual situation In
which the subsequent development
activity was being funded by a
Department of Housing and Urban
Development (HUD) block grant. The
court based its decision on the
unreasonable burden and duplicative
efforts that would be placed on the
Federal government should both DCC
and HUD be required to analyze the
same subsequent development. The
court did not address the situation
where only one Federal agency had
jurisdiction over a project, end was not
presented with the statutory language
nor legislative history concerning
transportation activities under the 1990
amendments to sectIon 176(c) nor EPA’s
interpretation of Federal actions and
indirect emissions (described below).
If it were the case that through an
agency’s approval of a demolition grant
an. agency were able to practicably
control construction of the housing
development, and had continuing
program responsibility over such
development, then EPA believes that the
agency would have “supported” the
housing development by making the
grant. For these reasons, EPA believes
that a court specifically addressing the
issue of the definition of Federal activity
under such circumstances would not
reach the same decision as in Atlantic
Terminal.
In order to clarify which activities are
covered under the general conformity
rule, the final rule incorporates changes
in the definitions of “Indirect
emissions” (discussed in section lll.C.)
and “Federal action” (discussed below
and in section IV.D.). The definition of
“Federal action” is revised by adding
the following sentence to the end of the
definition in the proposal: Where the
Federal action is a permit, license, or
other approval for some aspect of a
nonfederal undertaking. the relevant
activity is the part, portion, or phase of
the nonfederal undertaking that requires
the Federal permit, license, or approval.
The following examples illustrate the
meaning of the revised definition.
Assume, for example, that the COE
issues a permit and that permitted fill
activity represents one phase of a larger
nonfederal undertaking: I.e., the
construction of an office building by a
nonfederal entity. Under the conformity
rule, the COE would be responsible for
addressing all emissions from that one
phase of the overall office development
undertaking that the COE permits; i.e.,
the fill activity at the wetland site.
However, the COE is. not responsible for
evaluating all emissions from later
phases of the overall office development
(the construction, operation, and use of
the office building itself), because later
phases generally are not within the
COE’s continuing program
responsibility and generally cannot be
practicably controlled by the COE.
In another case, assume the Forest
Service permits a ski resort and imposes
conditions on the construction and
operation of the ski resort. Also assume
that housing development will occur
nearby but on privately-owned land. In
this case, the conformity review might
cover emissions due to construction and
operation of the ski resort since they are
activities permitted by the Forest
Service. Emissions from the housing
acUvities. however, would not generally
be covered since the Forest Service does
not generally take actions covering the
portion of the overall development that
Is on pr.vately-owned land and not
subject to a Forest Service permit.
license, or approve action.
H. Applicability—Attoinnient Areas
1. Proposal
As discussed in the preamble, EPA
proposed to interpret the statute such
that the Conformity rules apply only to
nonattainment areas and those
attainment areas subject to the
maintenance plans required by section
175A of the Act (58 FR 13841).
2. Comment
The EPA received many comments
which agreed with the proposal and
many other comments stating that the
statute should be read such that
conformity requirements would apply
in all or portions of attainment and
unclassified areas as well. Similar
comments were received arguing that
conformity should not apply in
attainment areas.
One commenter noted that
development in attainment areas on the
fringe of nonattainment areas is likely u
increase the size of the nonattainment
areas, increasing the impact on public
health and welfare and necessitating
more costly pollution control measures
to retrofit sources. The commenter also
stated that development in rural
attainment areas, even many miles awa
from urban nonattainment areas. may
delay timely attainment of the NAAQS
or emission milestones in
nonattalnrnent areas. Another
coinmenter cited an. example of a
conformity analysis in an attainment
area which showed a Federal action
would cause a new violation of the
NAAQS unless mitigation measures
were implemented andlor planning
provisions were revised.
3. Response
In the oroposal, EPA indicated that
the statute was ambiguous with respect
to whether conformity applied only in
nonattainrnent areas, or In attainment
areas as well. As noted above, EPA
received significant public comment
arguing that the statute should be read
to apply conformity also in attainment
areas, based on the wording of Act
section 176(c)(l) and the policy merits
of such applicability. Similar comments
were received arguing that conformity
dId not apply in attainment areas.
The EPA continues to believe that the
statute Is ambiguous, and that it
provides EPA discretionary authority to
apply these general conformity
procedures to both attainment and
nonattalnasent areas. The EPA plans to
carry out a separate rulemaking
proposing to apply general conformity
procedures to certain attainment areas.
The EPA sees strong policy reasons not
to apply conformity in all attainment
areas, given the significant burden
associated with making conformity
determinations relative to the risk of
NAAQS violations In clean areas. Thus,
EPA believes that It would be
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63228 Federal Register ,‘ Vol. 50, No. 226 / Tuesday, November 30. 1993 / Rules and Regulations
reasonable to propose applying
conformity In attainment areas for
which air quality is close to
nonattainment levels, for example at 85
percent of nonattainment levels (see
discussion below).
The EPA Intends to take comment on
the basic proposal to apply conformity
in attainment areas. The EPA will also
seek comment on the specific
application of conformity in certain
categories of attainment areas.
Therefore, EPA Intends to issue in the
near future a supplemental notice of
proposed rulemaking dealing with
conformity requirements In attainment
areas. 5 The requirements of this final
rule will apply only in nonattAinrnant
and maintenance areas, as proposed.
While EPA will solicit comments on
other options, the supplemental notice
of proposed rulemaking on general
conformity will propose to require
conformity determinations only in the
portion of attainment areas which have
exceeded 85 percent of the NAAQS.
These areas will be identified by using
the most recently available, quality-
assured air quality data covering the
period appropriate for making
designations of air quality status in 40
CFR part 81. Federal activities in
attainment areas below 85 percent of the
NAAQS and areas where representative
monitoring data axe not available would
be exempt from the obligation to
conduct a general conformity analysis
based on the de minlmis Impact on air
quality that would result for general
conformity activities In such areas.
Because the merit of exempting cartain
areas from conformity requirements will
vary depending on the activities being
regulated, the transportation conformity
rule may propose different exemptione
for applicability of conformity
requirements in attainment areas than
those for general conformity.
I Applicabllity— .De Minimis Emission
I..evels
1 Proposal
The proposed de minimis emission
levels to be used for determining
applicability of conformity requirements
were pollutant specific end varied
according to the severity of the
nonatteinment area. They ranged from
0.6 tonslyear (for lead) to 100 tonslyeer
‘F PM to, the siam which .‘o’jld be addressed
piammed cssra des neted
______ - The amiedgasnie I’, the 1990 Mt
siam lns L4 carteto quaL1t .AtiOU U
far PM—ia by operation of liw.
wbile all other erase designated melaselfteble
In the future. as Ipinuprisis, the Mt provides tar
additional unclaeaillab l. same to beiedadgnuted to
attainreect. This rule refers to aries rsdeelneled to
attilumeat as “aialateeaoce areas.”
(for carbon monoxide) (S 51.853). These
levels generally ware derived from the
“significance levels” established for
preconstruction review of modifications
to existing major stationary sources. The
significance levels were taken from the
Act itself, where provided, or from
EPA’s regulations for SIP’s (40 CFR part
51) where the Act did not provide them.
For ozone (VOC) and nitrogen oxides
(NO,), a sliding scale was proposed,
ranging from 10 tons/year (for extreme
ozone nonattainment areas) to 40 tonal
year (for marginal and moderate ozone
nonattainment areas).e
Most Federal actions result In little or
no direct or indirect air emissions. The
EPA intends such actions to be
exempted under the do minimis levels
specified in the rule and, thus, no
further analysis by the Federal agency is
required to demonstrate that such
actions conform. Additionally,
paragraph (d) of §51.853 allows a
Federal agency to establish categories of
actions which would be preswned to
conform due to minimal air quality
Impact. These provisions axe intended
to assure that these rules are not overly
burdensome and Federal agencies
would not spend undue time assessing
actions that have little or no Impact on
air quality. Such actions Include, for
example, personnel actions, continuing
activities with no substantial, adverse
change from previous conditions that
are associated with an on oing program
or operation (Including certain permit
renewal actions), end routine
monitoring.
2. Comments
Several commentezs supported the
concept of do mlrthnle levels as a means
of focusing conformity requirements on
those Federal actions with the potential
to have significant air quality Impacts.
Many agreed with the do mlnimla levels
proposed in the NPR. Some commenters
thought th. levels should be lower so
that more actions would be considered,
while others wanted the do mIrilmia
levels to be raised to lessen the
administrative burden on Federal
agencies and avoid conformity
requirements for smaller projects. A few
commeuters indicated that too many of
their activities would be subject to a
‘Tb. entuel level to, VOC sod N0
established by the Mtsa amended In 5090 terse
exbeme ozone nonaurinment am. Ii zero (I . ., soy
laowess Ii emissions from a modification of a
malor source lrl99ers new source review). The 10
tonalye .r proposed fore conformity review
threshold wee chosen because EPA determined that
ad. level is needed, a we threshold dear
not provide a do bnImi 1 level, sad aenron with
emissions shoe. 10 tonely.sr are defined as “major
stationary smaces” under tI lls I. pert 0. subpart I
eftheAct -
conformity review based on (lie do
minimis cutoffs proposed in the NPR ii
they were used with the inclusive
definition of indirect emissions.
One commenter stated that the
proposed de ininimis levels are arbitrary
and capricious. Another cowmenter
stated that there should be only one de
minimis level rather than the pollutant.
and classification specific levels
proposed.
Several comments objected to the
provision that would automatically
lower the do minimis levels to that of
the stationary source level established
by the local air quality agency. The
commenters pointed out that certain air
agencies have a zero threshold level.
which would not be appropriate for
conformity.
The EPA also received comments
stating that the applicability
determinations for conformity would be
overly burdensome because they could
be interpreted to apply to even the
smallest of Federal actions. That Is, the
proposed rule could be interpreted to
call for virtually all Federal actions,
even purely administrative ones, to
make a positive conformity
determination before the agency is
allowed to proceed with the action.
Several commenters requested EPA ta
specifically list types of Federal actions
that would be de minimis end, thus,
exempt from the confcrxnity review
requirements.
3. Response
Given the need t choose a threshold
based on air quality criteria and one that
avoids coverage of less significant
projects, and In response to certain
comments, the do minimis levels for
conformity analyses in the final rule are
based on the Act’s major stationary
source definitions—not the significance
levels as proposed—for the various
pollutants. Use of the do minlinis levels
assures that the conformity rule covers
only major Federal actions. Under the
major source definition, for example.
the levels for ozone would range from
10 tons/year (VOC or NO.1 for an
extreme ozone nonattoinment area to
100 tons/year for marginal and moderate
areas, not from 10 ton8/yea to 40 tons!
year as proposed. In areas that are close
to attainment, smaller projects, such as
those that result In strip shopping
centers, would not be subject to review.
In areas with more severe air quality
problems, such smalle: projects would
be subject to review. Larger projects,
such as an airport expansion or the
redevelopment of a military base, would
require a conformity review under all of
these de minimis levels.
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Federal Register I Vol. 58,
No. 228 I Tuesday. November 30. 1993 I Rules and Regulations 63229
The de minimis level for lead is 25
tons/year in the final rule. The
definition of major stationary source for
lead is 100 tonslyear. Relatively small
increases in lead emissions, however
(compared to other criteria pollutants)
may threaten the lead standard; also, the
level proposed for lead 10.6 tons/year)
was proportionately much smaller than
100 tons/year. Therefore, a 100 ton/year
level appears unprotective of the
conformity requirement. The 25 tonI
year value Is based on the source size
in 40 CFR part 51 that triggers an
attainment demonstration requirin,g
dispersion modeling.
The de minimis levels proposed were
generally those used to define when
modifications to existing stationary
sources require preconstruction review.
It was pointed out to EPA In comments
on the proposal that these thresholds
would result In the need to perform a
conformity analysis and determination
for projects that constituted a
“modification” to an existing source but
not a “major” source In some cases. The
EPA agrees that conformity applies
more appropriately to “major” sources
and after careful consideration has
decided to revise Its original proposal In
the final rule to use the emissions levels
that define a major source, except as
described above for lead. The definition
of a major source under the amended
Act Is explained in more detail in the
April 16, 1992 Federal Register in the
EPA’s General Preamble to Title 1(57 FR
13498). SectIon 51.853(b)(3) of the rule
has also been revised to remove the
provision that would automatically
lower the de minirnis levels to that
established for stationary sources by the
local air quality agency. In keeping with
its conclusion that only major sources
should be subject to conformity review,
EPA agrees that a zero emissions
threshold, as established by some local
agencies, should not be required by this
rule.
Further, the EPA believes that Federal
actions which are de minimis should
not be required by this rule to make an
applicability analysis. A different
interpretation could result In an
extremely wasteful process which
generates vast numbers of useless
conformity statements. Paragraphs (c)
(1) end (2) of S 51.853 are added to the
final rule to provide that de minimis
actions are exempt from the
raqpirements of this rule. Therefore, It is
act — — , for a Federal agency to
d i i i. ,t em1: nns le ’els fore de
mini thn, ii i.’ that a Federal
lIv .y laongnizes ss clearly do minimis,
such as actions that do not cause an
increase in emissions, do not require a
positive conformity determination.
Instead, such actions are exempt from
the rule as provided in § 51.853(c)(l).
In order to illustrate and clarify that
the de minimls levels exempt certain
types of Federal actions, several de
minimis exemptions are listed in
§ 51.853(c)(2). There are too many
Federal actions that are de minimis to
completely list In either the rule or this
preamble. In addition to the list in the
rule, the EPA believes that the following
actions are illustrative of de minimis
actions:
(1) Routine monitoring end/or
sampling of air, water, soils, effluent.
etc.
(2) Air traffic control activities and
adopting approach, departure and
enroute procedures For air operations.
(3) Acquisition of properties through
foreclosure end similar means.
(4) Assistance or subsidy for social
services such as health care, day care, or
nutrition services, as well as payments
under public assistance.
(5) Deposit or account insurance for
customers of financial Institutions and
flood Insurance.
(6) Routine installation and operation
of aviation end maritime navigation
aids,
17) Participating in “air shows” arid
“flyovers” by military aircraft.
(8) Educational end informational
programs and aCtivities.
(9) Advisory and consultative
activities, such as legal counseling and
representation.
{10) Construction of hiking trails,
(ii) Regeneration of an ares to native
tree species
(12) Timber stand and/or habitat
Improvement activities which do not
Include the use of herbicides, prescribed
lire or do not require more than one
mile of low standard road construction.
As noted above, the provisions In
S 51.853(c) (or in S 51.853(d)—{e)) are not
rebuttable presumptions and not subject
to documentation since they are
exemptions to the rule. The EPA
believes that the nature of the
exemptions listed in the rule, taken in
context of the definitions of a Federal
action and indirect emissions, which are
limited to those actions over which the
Federal agency has a continuing.
program responsibility and can
practicably control, renders these
actions truly do minimis and therefore
exempt from conformity requlremenb.
The exemptions listed In §51.853(d)
are for actions that may be above the de
minimis levels listed In § 51.853 (b ). The
rationale for the exemptions listed In
§ 51.853(d)(1) for new source review
(NSR) and prevention of significant
deterioration (PSD) and S 51.853(d)(2)
for emergencies is explained below. The
activities listed in §51 853(d) (3) and (4)
are related to air quality and necessary
environmental regulations and.
therefore, EPA believes they should be
exempt. The exemption for cerlain
f ERCLA activities is discussed in the
following section.
In contrast, the provisions of
§ 51.853(fl are presumptions of
conformity that must be supported by
documentation as provided in 551 853.
paragraphs (g) and (h) (which establish
criteria and procedures for Federal
agencies to develop additional
categories of actions which would then
be presumed to conform), and that they
may be rebutted as provided iii
§ 51.853(j).
J. Apphcabilfly—Exempt:ons and
Presumptions of Conformity
1. Proposal
In addition to Federal actions with de
mlnimis emission levels that do not
require conformity determinations. EPA
identified several types of Federal
actions where EPA believed that
conformity of such activities or a
portion of such activities can be
presumed. The NPR provided several
cases where conformity Is presumed
(S51.B53 (c) and Id)). including the
followIn
(1) Actions subject to preconstruction
NSR or PSD programs under the Act;
(2) Wastewater treatment works
projects funded by the State Revolving
Fund (SRFJ under the Clean Water Act;
(3) Superfund activities under the
Comprehensive Environmental
Response, Compensation and Liability
Act (CERCLA);
(4) Federal land transfers; and
(5) NatIonal emergencies.
The proposal indicated that Federal
actions identified wider § 5 1.853,
paragraph Cc), are presumed to conform
because the required air quality analyses
that would be conducted under a
conformity review must be completed to
comply wIth other statutory
requirements. That Is, air quality
analyses are required in the NSR
programs under the Act and the
applicable orrelevant and appropriate
standards process under the CERCLA.
The EPA believes these analyses are
adequate for purposes of conformity..
2. Comment
A number of commenters supported
these provisions In the proposal. while
others objected to them. Some
cor menters felt that the following
actions should be subject to conformity
review or that the proposed
presumptions of conformity were too
vague and need greater clarification:
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63230 Federal Register I_Vol.58, No. 228 I Tuesday. November 30, 1993 / Rules and Regulations
CERCLA actions, sewage treatment
works projects funded under the Clean
Water Act, and the Federal sale of land.
Other commenters supported these
presumptions and suggested many
others, including procurement actions
and projects with one-time only
emissions. Some commenters also
argued that EPA should establish
exemptions for certain actions and
presumptions for other actions.
Some commenters recommended that,
if a wastewater agency’s proposed
Facilities, or other water management
activities, are consistent with the
applicable SIP population projections.
then the indirect emissions attributable
to the proposed Facilities should be
considered to conform. In such cases the
indirect emissions would already be
accounted for in the SIP through a
growth management element
(population forecasts) adopted in the
SIP
3. Response
a General. As discussed in the
previous section, EPA determined that
certain actions should be exempt from
the rule and other actions should be
presumed to conform, with the
presumption being rebuttable.
Paragraphs (c)—(fl of § 5 1.853 have been
reorganized to indicate which Federal
actions are exempt and which are
presumed Lo conform.
b. Sources subject to NSR or PSD.
Actions subject to review under the NSR
or PSD programs are exempt under the
final rule. As explained in the NPR,
such actions undergo procedures and
criteria, including air quality analyses,
equivalent to those required by the
conformity rule. Thus, additional
review under conformity Is not
necessary.
ç. Water management activities. A
separate exemption or presumption of
conformity for direct emissions from
water management activities is not
needed where the emissions exceed the
de minimis levels as they would be
subject to NSR or PSD and such
emissions are exempt as described
immediately above. Indirect
emissions—and direct emissions that
are less than the de minimis levels for
NSR or PSD—from water management
activities are not covered under NSR or
PSD and, therefore, are not exempt.
The final rule Is, however, revised to
deal with the uncertainty of indirect
emissimis that may result from water
management activities. Generally, it will
be unclear what type of growth will
result from expanded water
manageutant activities. It will, thus, be
very difficult to assess the air quality
and emissions impact of specific water
management activities. Nevertheless,
such activities could have a substantial
effect on the SIP and it can be
determined if the emissions from such
actions are consistent with the SIP by
comparing the growth scenarios
supporting the water management
actions with the growth scenario In the
applicable SIP. Therefore, the final rule
includes a provision in § 51.858((a)(5)(v)
which allows a positive conformity
determination where the growth
pro pections for the water management
actions are consistent with and do not
clearly exceed those used in the
applicable SIP. Where the growth
anticipated from a wastewater project is
consistent with that accounted for In the
applicable SIP. EPA believes that further
analysis of the impacts of the indirect
emissions of the wastewater project is
unnecessary since all such emissions
are already addressed by the SEP. -
The EPA agrees that the conformity
rule provisions for wastewater treatment
plants under the SRF should also extend
to other water management activities
such as drinking water treatment plants
and water conveyances (e g.. pipelines
and pumps). and the final rule reflects
this concern. The term “regional water
and/or wastewater projects” is defined
and used ( 51.858(a)(5)(v)) In the final
rule to address the above concerns.
d. Superfund projects under CERCI.A.
Under the exclusive definition of
Indirect emissions, superfund projects
are unlikely to be covered since the
Federal agency will not maintain
authority over reuse activities on that
land. The presumption of conformity,
thus, no longer Is relevant for such
actions and is not contained in the final
rule.
The final rule Is revised to incorporate
the changes described below:
The CERCLA and related regulations
require on-site remedial actions to meet,
or obtain waivers from, applicable or
relevant and appropriate requirements.
Since these requirements include NS
and PSD, and since Clean Air Act
requirements have never been waived,
the direct emissions from on-site
remedial actions would not violate the
NAAQS because they are subject to NSR
and PSD review. Therefore, these
actions are exempt.
The CERCLA and related regulations
require off-site remedial actions to
obtain Federal, State and local permits.
Since this includes NSR and PSD, the
direct emissions from off-site remedial
ections would also not violate the
NAAQS as described above. Therefore,
these actions ye exempt.
Direct emissions from removal actions
are exempted from other environmental
requirements by section 121(d)(2) of
CERCLA, and therefore we are
exempting them from conformity
review. The EPA’s long.standing
interpretation of the Superfund statut
has been that actions not specifically
listed In section 121(d)(2) of CERCLA do
not have to comply with any other
Federal environmental laws. Removal
actions are exempt generally, although
by regulation EPA has required them to
comply with the substantive
lequirements of such laws to the extent
practicable. ERCLA allows EPA to
make the judgment that implementing a
CERCLA response may outweigh the
need to comply strictly with other
environmental requirements. To be
consistent with this interpretation. EPA
is exempting such CERCLA removal
actions from the conformity
requirements in those situations where
EPA determines that compliance is not
practicable based on the urgency or
limited scope of the removal.
e. Federal land transfers. (1) Proposal
The proposal stated that the sale of land
from a Federal agency was presumed to
conform. § 51.853(d)(4). The EPA argued
that land sales do not “support”
subsequent emissions activity since they
do not specifically approve, authorize or
permit that activity. Furthermore, it was
pointed out that imposing conditions on
land sales could restrict the ability of
State and local agencies to determine
the land use for future activities which
may follow In subsequent years.
(2) Comments. Many commenters
objected to the presumption of
conformity for Federal land transfers.
Several groups indicated that Federal
agencies must c nsidar reasonably
foreseeable use on the property to be
transferred to ensure that known
emissions will not endanger air quality.
It was pointed out that most Federal
agency land sales are accompanied by
NEPA review and It Is. therefore,
appropriate to require conformity
review for these actions. Specifically, it
was said that EPA cannot argue that
land sales do not cause subsequent
emissions activities as a general matter,
since it has already been illustrated by
the proposed sale of Pease Air Force
Base for commercial airport and
development use that specific reuse
activities can be identified and
facilitated by a Federal land transfer.
On the other hand, support for the
presumption of conformity for Federal
land transfers was provided by several
commenters. The main arguments were
put forth b) the Department of Defense
(DOD), specifically as it related to
military base closures and long-term
leases. It was indicated that military
departments do not “approve” reuse a
the property. The sale of property
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Federal Register I Vol. 58. No. 228 I Tuesday, November 30, 1993 / Rules and Regulations 63231
removes the action from the province of
“Federal action” and the Federal agency
has no continuing authority to control
the private entities’ future activities.
The DOD stated that. “Although Etheyl
will analyze the Impacts from
reasonably foreseeable reuse proposals.
the zoning of the property that allows
the specific proposed reuse Is
determined by the local zoning
authority.” Furthermore, they said:
The purpose of the conformity requirement
u to assure Federal agencies consult with
state end local air quality districts to assure
these regulatory authorities know about the
expected impacts of Federal decislearnaklng
and can include expected emissions in their
SIP emission budget In a closure and reuse
scenario, the future development plans of the
community reuse group are known,
approved. and supported by the local air
regulators. subject of course to the reuse
group meeting local air regulations for
permits. mitigation, and so forth. When a
community. worlang with local sir
regulator ., has decided it desires to
Implement an economic recovery plan with
associated sir emissions and will adjust its
emission budget to allow for such a plan. the
rationale for locking DoD into conformity
limitations is ebsent. Reuse Is most
appropriately a local decision. rather than a
Federal decision, with local authorities
evaluating the type of growth they want or
need and adjusting their SIP allocations for
new growth accordingly.
(3) Response. Under the exclusive
definition of Indirect emissions, Federal
land transfers are unlikely to be covered
since the Federal agency will not
maintain authority over reuse activities
on that land. Consequently, Federal
land transfers ate Included In the
regulatory list of actions that will not
exceed the de minions levels and thus
are exempt from the final conformity
rules.
f. Emergencies and tznnsportolion
actions. (1) Proposal. Section 51.853,
paragraph Cd). proposed types of action.
that would be presumed to conform
(unless the Federal agency determines
otherwise based on Its own information
or after reviewing any Information
presented to the Federal agency).
Section 51.853, paragraph (d)(1), listed
“temporary Federal actions In response
to national emergencies.” The proposal
noted that this provision would cover
Federal activities which require
extremely quick action on the part of the
Federal agencies Involved.. Where the
üming of such Federal activities makes
it .impossibte to meet the requi . ements
GftIsIVIIiIe. A Inrilcated that It would
be ’. . . 1 alate to presume conformity.
Several examples are listed In the
preamble to the proposai (58 FR 13843).
(2) Comment. One commenter stated
that transportation projects should be
exempt. Other commenters
recommended that a broader set of
emergencies should be covered and that
an exemption Is appropriate for such
actions, including responses to natural
disasters such as hurncanes and
earthquakes.
(3) Response. As proposed, certain
transportation projects are exempt from
this rule as specified in S 51.853(a).
Those actions are subject to the
transportation conformity rule.
The EPA agrees that Immediate
responses to natural disasters such as
hurricanes, earthquakes and similar
events such as responses to terrorist
acts, civil unrest, or military
mobiltratlons should be exempt The
exemption is needed where a Federal
agency cannot practicably complete a
conformity analysts prior to taking
actions In response to an emergency.
Accordingly. a definition of
“emergency” Is contained in the final
rule and the exemption is contained in
§ 51.853(d)(2). Additional examples of
emergendes that are exempt from this
rule are: emergencies under CLA.
immediate responses to the release or
discharge of oil or hazardous material In
accordance with approved Spill-
Prevention and Response Plans or Spill
Contingency Plans which are cnn Went
with the requirements of the National
Contingency Plan, and response to life-
and property-threatening emergencies.
The rule Is clarified to state that this
provision Includes continuing actions
which are, In effect, commenced
immediately after the emergency Is
determined and are not limited to
“national” emergencies. This does not,
however, Include long-term Federal
action. taken In response to mach events
unless, as required in S 51.853(e), the
Federal agency makes a periodic
determination that the emergency
conditions still md i i. In such cases It
would be Impractical for the Federal
emergency actions to be delayed so that
a conformity determination could be
made. For purposes of this rule,
Immediate responses are actions ‘s
commenced on th. order of hours or
days after the emergency Ii determined
and long-tern responses occur on the
order of months or years thereafter.
g. Procurement requests. (I) Proposal.
The preamble to the proposed rules
discussed the need for emissions
associated with the Federal action to be
“reasonably foreseeable” at the time the
conformity determination I . required
(58 FR 13839) and stated that an agency
is not required to speculate or guess at
Indirect emissions which are
conceivable but not actually
identifiable. The preamble also
IndIcated (58 FR 13840) that where it Is
Impossible to accurately locate and
quantify emIssions and therefore
impossible to accurately complete the
air quality analysis, such omissions
should not be considered “reasonably
foreseeable.” Further, the preamble
stated that on-going programs or
operations, such as certain permit
renewal actions, that do not Increase
emissions over previous levels fall
below the de minlinis levels in the rule
(58 FR 13842); that Is, only emissions
increes s are counted toward the de
minimis levels.
(2) Comment. Several commenters
recommended that procurement actions
by a Federal agency should not be
covered by-the conformity rules and that
the annual cost of conformity analyses
for the total of all such actions could be
greater than $100 million. The
commnenters argued that most
procurement actions should be viewed
as a separate category of Federal activity
for purposes of an environmental
analysis. Procurement actions would
merely Implement the decision to
conduct or carryout a poLicy, plan,
program or project. The environmental
analysis and thus the conformity
determination would be made on the
decision to go forward with the program
or project, not on the follow-on
procurement action.
(3) Response. The March 15. 1993
proposal was silent on the application
of conformity requirements to
procurement actions. Many comments
were received on procurements and
generally Indicated that procurements
should be exempt from the final
conformity rule. However, the EPA
believes that certain procurement
actions may constitute Federal actions
under the general conformity
provisIons. It I Impossible at this time
to resolve competing concerns regarding
which procurement actions should be
covered and which should be exempt
since the existing record Is inadequate.
Therefore, the EPA will propose to
cover certain procurements in a future
rulemaking.
As noted, EPA Intends to Issue an
NPR regarding attainment areas. The
EPA Intends to Include In this proposal
request for comment on exemptions for
certain procurement actiods which It
believe. would fit the de minimis
criteria or result In emissions which are
not reasonably foreseeable. The EPA
believes the vast majority of
procurement attions would be de
ininirnis or not reasonably foreseqable.
Given the complexity of Federal
procurement and the Iovernment’s
desire to streamline procurement
activities es discussed in the National
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63232 Federal Register / Vol. 58, No. 228 / Tuesday, November 30, 1993 I Rules and Regulations
Performance Review . the EPA will seek
comment on exemptions and the
process for applying conformity to
procurement activities.
?i. Fugitive emissions. (1) Proposal.
The total of direct and indirect
emissions must be Included in the
conformity analyses.
(2) Comment. Some commenters
alleged that fugitive emissions can
neither be reasonably quantified nor
efficiently controlled, and therefore
believed that projects that generate
fugitive emissions should be exempt.
They noted that fugitive emissions
generally are not considered under the
Act under the NSR program.
(3) Response. Since fugitive emissions
can cause violations of the NAAQS and
since there are many techniques
available to control such emissions,
fugitive emissions are not exempt from
the general conformity rules. The
conformity rules consider the “total”
emissions from a Federal action. Total
consistency with the NSR program is
not possible. in any event, since that
program also excludes mobile source
emissions from consideration, whereas
the general conformity rule requires that
they be considered.
z. Modeling. (1) Proposal. The rule
proposed to exempt actions covered by
new source review (paragraph (CXI) of
§ 51.853).
(2) Comment. A commenter
recommended that the rule exempt
actions where the Federal agency
performs an air quality analysis, for
example, under State environmental
statutory provisions.
(3) Response. The NSR exemption Is
based on an air quality analysis and the
prohibition of emissions or actions that
would cause or contribute toe NAAQS
violation. An air quality analysis is not
adequate by Itself to Justify an
exemption from the conformity rules
since it does not ensure that actions
would be prohibited, as necessary to
prevent a NAAQS violation.
j. Miscellaneous. (1) Proposal. The
proposal specifically identifies very few
activities that axe presumed to conform,
but establishes de minimis levels in
§ 51.653(b)(1). Federal agencies are also
allowed to establish by rulemaking
specific categories of actions which
would be presumed to conform.
(2) Comment. Various comments were
received which suggested adding
iemptisms.to th. rule, Including:
(1 Pt -hub or general aviation
(2) Emergency generators.
‘“Creating a ge vaasnt that works bettor and
costs Iess, National Porfonnanc. Review. 1993.
(3) Prescribed burns that follow a
State-approved smoke management
plan.
(4) Actions consistent with an
agency’s pollution prevention plan.
(5) All Federal actions for which
agencies have established categorical
exclusions under NEPA.
(6) Projects that request section 7
consultation for threatened and
endangered species from the U.S. Fish
and Wildlife Service.
(7) Act Title V permits.
(8) Federal actions where the agency
does not make a determination within a
30-day time period.
(3) Response. The EPA agrees with the
intent of the commenters to avoid
unnecessary conformity analyses,
especially where the air quality Impact
is likely to be very small. The final rule
lists several examples of de minimis
actions. However, rather than
attempting to list individually all of the
potential de niinimis actions, EPA has
established the tons/year de minimis
levels.
In addition, the final rule allows
Federal agencies to establish their own
presumptions of conformity through
separate rulemaking actions, as
proposed in § 51.853. This separate
procedure is necessary since
exemptions under NEPA or other
statutes may not be appropriate as
exemptions from the Act That Is,
section 176(c) does not specifically
exempt any activities and, thtis. a
separate analysis is needed to show that
any activity to be presumed to conform
has no a ir quality Impacts. The final
rule Includes a provision In S 51.853.
paragraph (gJ(2), which allows a Federal
agency to document that certain types of
future actions would be de minimli;
where similar actions have occurred in
recent years. that experience should be
the basis for the needed documentation.
A 3Oday timeframe Is unlikely to be
adequate to complete a conformity
analysis in many cases. The EPA
expects the conformity analysis to be
coupled with the NEPA analysis and.
thus, not result I undue delays.
Therefore. EPA Is not providing any
exemption for actions not completed
within 30 days.
k. Case-by-case reevaluation. (1)
Proposal. Federal agencies are allowed
to establish by rulemaking specific
categories of actions which would be
presumed to conform. However, on a
case.by.case basis, an action that Is
presumed to conform would be subject
to a conformity determination where It
is shown to the Federal agency that the
particular action did not, In fact,
conform IS 51.853(h)l.
(2) Comment. One commenter
suggested that the rule should provide
a mechanism for addressing cases whni
data generated from other sources. su .
as NEPA, indicates that the proposed
Federal activity could result In a
violation of the NAAQS; in such cases
conformity cannot be presumed and
further analysis should be required.
(3) Response. The EPA agrees that a
category of Federal activity may be
properly presumed to conform, but
exceptions might be discovered where
individual projects within the category
should be subject to a conformity
analysis. Section 51.853, paragraph (ii.
in the final rule, therefore, allows the
presumption to be rebutted.
e. Research activities. (I) Proposal
The proposal identified research
activities, where no environmental
detriment is incurred, as actions that
would be presumed to conform
[ 51.853(d)(2)J.
(2) Comment. One commenter
indicated that an environmental agency
would be best suited to determine
where an action would have no
environmental detriment.
(3) Response. The EPA agrees and has
revised the provision so that the final
rule leaves the determination of
environmental detriment to the State
agency primarily responsible for the
applicable SIP. The EPA also believes
that this change provides adequate
assurance that there will be no adverse
air quality Impact and, thus, the
provision Is an exemption under the
final rule.
K. .4pplicobility.—Calcu!ation
1. Proposal
In some cases, a Federal action may
include several direct and Indirect
emission sources, only some of which
are covered under § 51.853. paragraph
(c). The preamble to the proposal
indicated that the applicability
calculation should include emissions
that are presumed to conform (58 FR
13843). although the determination
analysis should not.
2. Comment
A commenter objected to the
preamble language, indicating that any
emissions that are presumed to conform
should not be part of the applicability
calculation.
3. Response
The EPA agrees that the approach
su gasted by the commenter Is the mor
logical approach. It Is inappropriate to
include for applicability purposes
emissions as to which no conformity
determination is required. Therefore,
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Federal Register / Vol. 58, No. 228 / Tuesday, November 30, 1993 / Rules and Regulations 03233
the final rule provides that emissions
that aie exempt or presumed to conform
are not part of the definition of “total of
direct and Indirect emissions” and, thus
are not required to be paitof the
applicability or determination analyses.
The final rule requires the inclusion
of the total direct and indirect emissions
in the applicability (551.853) and
conformity (551.858) determinations.
except the portion of emissions which
are exempt or presumed to conform
under § 51.853. For example, assume
that a Federal action includes
construction of a new Industrial boiler
(whose emissions are subject to
preconstruction review and, thus,
exempt) and a separate office building.
and assume further that direct emissions
from the boiler exceed the de minimis
levels In § 51.853. but the direct and
Indirect emissions from the office
building alone are less than the de
minimis levels. En that case. the action.
as a whole, would not exceed the de
minimis levels and, therefore, would
not need a conformity determination.
L. Reporting Requirements
1. Proposal
The proposed rule contains
requirements For a Federal agency to
notify EPA and the State and local air
quality agencies of draft and final
conformity determinations.
2. Comment
The EPA received comments
suggesting that additional, early
notification should be required,
including notification of the
Metropolitan Planning Organization
(MPO) and affected Federal Land
Manager (FLM).
3. Response
The proposal required notification of
the State and local air agencies since
heIr expertise should be sought when
Interpretation of the SIP Is needed The
final rule also requires notification of
the MPO and affected FLM’s. The MPO
needs to be involved and consulted
where planning assumptions are at
!ssue. Although the conformity
determination is a Federal
responsibility, the State and local
agencies must, in some cases, provide
important information. For example, the
Federal agency would need to consult
with the State and/or local agency to
determine the status of an area’s
amisslons budget or population
peolections. — herefore, the final rule
mcludes th. se requirements.
In addition. Class I areas can be
seriously affected by air emissions. It is
therefore Important that ibM’s be able
lobe part of the decision-making
process for Federal actions that have the
potential to impact land under their
jurisdiction. Consequently. § 51.855 was
amended to require a Federal agency
taking a Federal action that requires a
conformity determination and that is
within 100 km of a Class I ares to
consult with the affected FLM when the
Federal action Is proposed and to notify
the FLM within 30 days of the draft
conformity determination and again
within 30 days of the final conformity
determination. This 30-day timeframe is
also consistent with the timeframe in
the public participation requirements of
the rule, as described in the following
discussion.
M. Public Participation
1. Proposal
Undor the proposed rule. Federal
agencies making conformity
determinations would be required to
provIde 45 days for written public
comment prior to taking any formal
action on a draft determination
(S 51.856). This period may be
concurrent with any other public
involvement, such as occurs in the
NEPA process or as otherwise required
by the Administrative Procedure Act
(APA). where applicable.
In procedures that might extend
beyond the usual NEPA process.
conformity to a SIP must specifically
involve the appropriate EPA Regional
Office(s), State and local air quality
agencies. The Federal agency must make
available for review to all interested
parties the draft determination and
supporting materials which describe the
analytical methods and conclusions
relied upon In making the
determination. The agency should
provide, upon request. a description of
significant assumptlonL the source of
data and assumptions not generated by
the sponsoring agency, and a
reconciliation of the estimates of
population, employment, travel. and
congestion with those currently in use
in the air quality planning process.
2. Comment
The EPA received a wide range of
comments on public participation.
Many supported the EPA proposal.
Some commenters thought that general
conformity determinations should
require rulemaking actions and
notification in the Federal Register.
Others felt that no public participation
is necessary. It was also suggested that
each Federal agency should define its
own public participation requirements.
One commenter wanted the general
conformity rule to follow the public
participation requirements outlined in
the new transportation statute Some
commenters wanted to expand the
requirements for public announcement
of Federal agency determinations and a
longer public comment period. t%hile
others wanted these requirements
further restricted. It was pointed out
that the 45-day comment period was
inconsistent with the statutory
requirements for shorter public
comment periods of a number of Federal
agencies.
Certain commenters asked EPA to
clarify where the prominent
advertisement is to be made Another
comment suggested that the
advertisement should be in a “daily
newspaper of general circulation
Comments were also received
suggesting that the State and local air
agencies should have a concurrence rok
in the conformity analysis.
Several comments recommended that
the NEPA requirements for public
participation should be met at the same
time as the conformity requirements in
order to streamline the process and
reduce any time and resource burdens.
3. Response
The final rule is revised somewhat to
clarify the requirements of §51 856 and
to adjust the public comment period. A
Federal agency is not required to
maintain mailing lists and make
information automatically available to
those requesting to be on the list. Such
a requirement could be unduly
burdensome and unnecessary since
those on the list would not necessarily
review all the material automatically
supplied. Thus, the rule requires only
that the Federal agency respond to an
information request which is related to
a specific action. If information is
requested of the Federal agency, it
should be provided in a timely manner.
The rule does not prohibit a Federal
agency from voluntarily maintaining
and responding to a mailing list.
In addition, the final rule is changed
from the proposal to specify that
Information must be made available
only in the case of a conformity
determination under § 51.858. As
described in the discussion on de
mlnimis levels elsewhere In this
preamble, no documentation is required
by this rule for de minimis
determinations under § 51.853 in order
to avoid unreasonable administrative
burdens on the Federal agencies. This
approach is also consistent with the
requirements in § 51,855 in the
proposed and final rules which apply
the reporting requirements only to
conformity determinations under
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63234 Federal Register / Vol. 58.
Na. 228 / Tuesday. November 30, 1993 / Rules and Regulations
§ 51 858. not to applicability analyses
urider 51 853.
The procedures in the final rule
provide 30-day opportunities for public
participation at two points in the
decision-making process: Where a draft
conformity determination is being made
and where a final conformity
determination was made. These
procedures allow the public the
opportunity to examine information
used in the applicability calculations
and draft conformity determination, to
question the draft determination, to
review others’ comments, and, after the
final determination, to use legal means,
if necessary, to influence the project.
The change in the comment period from
45 to 30 days was made to comply with
other specific statutory requiroments for
public comment that other Federal
agencies must comply with. This change
is consistent with the comment period
provided for by NEPA (40 CFR
1507.3(d)).
The EPA believes this approach
provides the most effective balance
between the Act’s (section 127) and
APA’s requirements for public
notification and participation and the
need to avoid procedures that are
unnecessarily costly, time-consuming
and burdensome to the Federal agencies
affected. The EPA is authorized to
establish public participation
requirements under sections
176(c)(4)(B) and 301(a)(1) of the Act.
and 30 days notice is a reasonable
requirement. Since the Act does not
require conformity determinations to be
formal rulemaking actions, formal
rulemaking is not required by this rule
unless separately required under the
APA.
The EPA does not agree that the State
and local air agencies should have a
concurrence role in the conformity
analysis. Section 176(c) of the Act does
not give EPA the authority to require
such concurrence.
The EPA agrees that Federal agencies
should consider meeting the conformity
public participation requirements at the
same time as the NEPA requirements.
The final rule allows the concurrent
process. However, In some cases, a
Federal agency may have valid reasons
to use different procedures; thus, the
rule does not require a concurrent
process. Further, in many cases, a NEPA
analysis may not include a public
participation process; therefore, the
flexibility is clearly needed.
The EPA agrees that the prominent
advertisement should be made in a local
daily newspaper of general circulation.
The rule includes this clarification
( 5 1.856).
1. Proposal
Paragraph (a)(5)(i) provides that a
Federal action conforms with the air
quality criteria where emissions from
the action, together with all other
emissions In the attainment or
nonattainment area, would not exceed
the emissions budget contained In the
applicable SW. The SW’. are Intended
to accommodate growth, and where a
project is demonstrated to conform to
the approved air plan. the associated
growth In emissions Is appropriate. In
order to determine the status of the
emissions budget at any time, an
accounting system is needed to track the
many factors included In the total
emissions over an area or subarea. The
tracking needs to be consistent with the
State’s reasonable further progress (RFP)
tracking and needs to account for source
compliance with SIP limits, changes in
emissions due to growth and other
operational changes from minor and
major new stationary sources, and
emissions due to other economic
growth. Paragraph (a)(5)(i) of § 5 1.858
allows a Federal agency to rely on a
certification that the Federal action Is
consistent with the emissions budget.
The certification may only be made by
the State agency primarily responsible
for developing and Implementing the
applicable SIP, That State agency could
determine that emissions from a Federal
action would not exceed the emissions
budget specified in the applicable SIP.
2. Comment
A commenter suggested that EPA
clarify which State agency is
responsible for the applicable SIP and
determines consistency with the SIP
emission budget. One comment
suggested that the Federal agency
request a determination from the MPO
and local air agency regarding the effect
on the emission budget. Another
commenter stated that under § 5 1.858,
the State agency responsible for the
applicable SIP must determine, in each
case, whether emissions associated with
the Federal action are within the
emissions budget specified in the air
plan. The commenter was concerned
that this creates an unmanageable
system whereby State agencies not
otherwise involved with the project or
the conformity assessment itself will be
required to become familiar with the
action at a late stage in the process.
causing delays and confusion. One
commenter suggested that EPA should
assist States In making this
determination.
For the purpose of this rule, the Stal
regional or local agency, or combinat
of agencies. that is responsible for
developing the attainment
demonstration and tracking RFP is the
entity that can certify consistency of
Federal actions with the SEP emissions
budget. unless some other agency!
agendas is/are designated by the
Governor of the State. Other agencies,
including EPA. may not have sufficient
information to make this determination.
In addition, to assure that the State
determination is well founded and that
the public has an opportunity to review
that determination, § 51.858(a)(5)(i)(A)
requires the State to document its
determination.
The conformity rules do not require
the State to determine in each case
whether emissions associated with a
Federal action are within the emissions
budget. This is an option that may be
used by the Federal and the State
agendas. The State agency Is. however,
required to be notified of any
conformity determinations and, thus,
could be expected to be familiar with
the action.
The EPA also clarified the definition
of emission budgets in the-final rule.
The EPA will issue further guidance
regarding emission budgets in the ne
future. An emissions budget does not
exist in all nonattainment areas. In
many cases, however, the SIP
attainment and maintenance
demonstrations and/or RFP plans will
be revised or established In the near
future, consistent with the amended Act
requirements. In these SIP provisions.
emissions budgets will be established
and may be used to determine
conformity, as provided In the final
rule.
a Mitigation Measures
1. Proposal
If an action does not initially conform
with the applicable SIP, then a plan for
mitigation or for finding emissions
offsets could be pursued. Emissions
offsets are appropriate where an action
(with or without mitigation measures)
still results in emissions that do not
otherwise conform to an applicable SIP.
Mitigation measures, in contrast, reduce
the potential Impact of an action so that
the action would result in fewer
emissions. Assuming implementation of
the mitigation measures, the conformity
analysis (i.e.. consistency with the
emissions budget, air quality modeiir
emission milestones, etc.) would
consider a smaller amount of emissior
associated with the action.
N. Emissions Budget 3. Response
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Federal Register I Vol. 58, No. 228 1 Tuesday. November 30. 1993 / Rules and Regulations 63235
Any measures that are assumed to
mitigate air quality impacts must be
Identified end the process for
implementation and enforcement of
such measures must be described.
Under the proposal, it was indicated
that if the Federal agency. other
governmental agency, or private sponsor
of the project failed to implement the
mitigation measures committed to and
found necessary in the conformity
determination, then the conformity
determination automatically became
invalid and resulted in the revocation of
all permits, approvals, and licenses
originally supported by that conformity
determination. This revocation would
result in the need for a new conformity
determination.
Mitigation measures should generally
be Included by the Federal agency in
enforceable documents such as permit
conditions. Mitigation measures may
need to be revised due to unforeseen
circumstances that may arise as the
action and/or related activity Is
completed. Where the revised
mitigation measures are subject to
public review and It Is demonstrated
that the revised measures continue to
support the conformity determination.
such tevislon would be acceptable.
The proposal Indicated that States
may choose to make mitigation
measures committed to by a project
sponsor as part of a conformity
determination automatically enforceable
through the SW. One possible
mechanism for incorporating mitigation
measures Into the SIP Is for States to
induda a generic provision In their
conformity SIP’s adopting in advance
and Incorporating by reference the
mitigation measures Identified as
necessary for making a conformity
determination.
2. Comments
One coinntenter stated that the
automatic revocation of the conformity
determination Is not an enforceable
mechanism and Injects too much
uncertainty into the overall program.
Another coinmenter recommended
that minor changes in mitigation
measures which do not increase
emissions should not need public
comment.
Several comments suggested that
SIP’s should be required to Include a
generic enforcement provision, similar
to other permit programs. Such a
pzovis on could make enforceable any
conditions made pursuant to the SIP
conformity rule and needed to show an
action conform&
A comment raised the concern that
direct enforcement against non-Federal
parties could violate the prohibition
against indirect source review programs
in section 110(a)(5).
One commenter stated that local air
agencies could provide the Federal
agency with suggested mitigation
measures to offset the project related
emissions.
Another commenter suggested that a
community, working with local air
agencies, could decide to adjust its
emission budget to allow for a specific
Federal action.
3. Response
The EPA agrees that automatic
revocation is not an appropriate or
enforceable mechanism. Therefore, the
proposed § 51.860(c) does not appear in
the final rule. Second. EPA agrees that
a generic enforcement provision in the
SIP is needed for mitigation agreements.
Therefore, the final rule includes the
requirements in § 5 1.860 (b)-(f) which
indicate that States must adopt a generic
enforcement provision which will make
any agreements. including mitigation
measures, necessary for a conformity
determination both State and federally
enforceable. Section 51.860(a) is also
revised to indicate that a funding
commitment is not needed in all cases.
The final rule Includes the provision
in § 51.880(b) of the proposal which
requires any licenses, permits or
approvals of the action to be
conditioned on the governmental or
private entity meeting the mitigation
measures necessary for the conformity
determination. This provision is
renumbered In the final rule as
§ 51.860(d).
In addition to requiring In §51.860(b)
end (d) that written couunltments and
conditions to mitigation measures be
obtained from project sponsors prior to
making a positive conformity
determinatIon, §51.860(c) and (fl of the
final rule require that project sponsors
comply with such commitments and
conditions once made. Consistent with
these provisions, § 51.858(d) provides
that the analysis. which results in a
conformity determination or identifies
mitigation necessary for a conformity
determination, must be completed
before the conformity determination is
made. Pursuant to these final rules
issued under Title I of the Act. EPA can
enforce mitigation commitments and
conditions directly against project
sponsors under section 113 of the Act.
which authorizes EPA to enforce the
provisions of rules promulgated under
the Act.
As provided in § 51 860(g), once a
State revises its SIP to adopt the Federal
general conformity rule and EPA
approves that revision, then any
agreements or commitments. including
mitigation measures. necessary for a
conformity determination will be both
State and federally enforceable. In
addition, after EPA approves that SIP
revision, citizens can enforce against
responsible parties for violations of SIP
requirements under section 304 of the
Act.’
The concern was raised to EPA that
direct enforcement against non-Federal
parties could violate the prohibition
against indirect source review programs
in section 1l0(a)(5). However. EPA
concludes that this prohibition is not
relevant to the requirement that project
sponsors comply with mitigation
commitments. The EPA is not
promulgating a generally applicable
requirement for review of all indirect
sources. Rather. EPA is enabling Federal
agencies to make positive conformity
determinations under section 176(c)
based on voluntary commitments by
project sponsors to complete mitigation
measures. Project sponsors are not
obligated to make such commitments.
Where they volunteer to do so to
facilitate Federal conformity
determinations, EPA is requiring thorn
to live up to such commitments.
Without such a requirement, EPA could
not allow positive conformity
determinations based on mitigation
measures prior to actual construction of
mitigation measures.
The EPA does not agree certain
changes La mitigation measures should
avoid the public participation
requirements. The determination that a
change is a “minor” change or the
calcu’iation that there is no emissions
increase may be subject to considerable
judgment. As such there is a need for
public participation. Section 51.860(e)
reflects this provision.
As mentioned previously and as
provided In § 51.858(a)(5)(i) of the final
rule, EPA agrees that the State and local
air agencies can play an important role
in the conformity process. These
agencies can provide the Federal agency
with suggested mitigation measures to
offset the project related emissions. The
Federal agencies can take such a list and
work with the local planning and
regulatory agencies to effect necessary
emissions reductions.
•Currsndy. the apoasors of any pro eciI which
a ’s subject to Federal programs Identiried in the
SIP, e.g.. NSR permits and PSIJ requirements. are
subject to State and Federal enforcement actions if
applicable procedures end permit condition, are
not followed. Project sponsors of Federal actions
requiring a conformity determination will be
subject to similar .nforcemanL actions ii (boy fail to
Implement mitigation meaSures prescribed by the
approved SW revision. Eoforcecbtiuty through the
SIP will apply to all parties who agree to mitigate
direct and Indirect soduious associated with a
Federal action for a conformity determination.
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63236 Federal Register / Vol . 58,
No. 228 I Tuesday._November 30, 1993/ Rules and Regulations
In addition, EPA agrees that a Federal
action should proceed where the State
andfor local air agencies decide to
revise the SIP to accommodate the
action. As provided in § 51.858(a)(5)(i)
of the final rule. EPA agrees that a
mechanism is needed to allow the
action to proceed under certain
circumstances. This approach is
consistent with the congressional desire
to assure that State plans are not
undermined by Federal actions; thus,
whore the State voluntarily commits to
revise its SIP so that a Federal action
conforms, that action would not
undermine the State’s decision-making
ability and should be allowed to
conform. The State may make a
commitment to regulate or mitigate
emissions from sources not under the
Federal agency’s control (i.e., commit to
revise its SIP) to allow a Federal action
to proceed that otherwise would not
conform. The commitment must be
made by the Governor or Governor’s
designee for submitting SIP revisions
rind must provide for revision of the SIP
so that emissions from the Federal
action would conform to the SIP
emission budget in a time period
consistent with the time that emissions
from a Federal action would occur.
This provision could apply, where the
total of direct and indirect emissions
from the action are determined by the
State agency responsible for the
applicable SIP to result in a level of
emissions which, together with all other
emissions in the nonattainment (or
maintenance) area, would exceed an
emissions budget specified in the
applicable SIP. In such cases, the State
Governor or the Governor’s designee for
submitting SIP actions would make a
written commitment to EPA which
would have to include the following:
(1) A specific schedule for adoption
and submittal of a revision to the SIP
which would achieve the needed
emissions reductions prior to the time
emissions from the Federal action
would occur:
(2) Identification of specific measures
for Incorporation into the SIP which
would result in a level of emissions
which, together with all other emissions
in the nonattainment or maintenance
area, would not exceed any emissions
budget specified in the applicable SIP;
(3) A demonstration that all existing
applicable SIP requirements are being
implemented in the area and for the
pollutants affected by the Federal
action, and that local authority to
impissnunt additional requirements has
been fully pursued;
(4) Assurances that the responsible
Federal agencies have required all
reasonable mitigation measures
associated with their action; and
(5) Written documentation including
all air quality analyses supporting the
conformity determination.
In order to assure that the
commitment to revise the SIP is
enforceable, the final rule also provides
that where a Federal agency made a
conformity determination based on a
State commitment under paragraph
(a)(5)(iHB) of § 51.858, such a State
commitment Is automatically deemed a
call for a SIP revision by EPA under
section 110(k)(5) of the Act based on the
inadequacy of the applicable SIP In light
of the positive conformity finding.
Should EPA find that the State failed to
satisfy the commitment, sanctions under
section 179 of the Act would apply for
failure to respond to the SIP call. The
EPA here determines that where the
State commitment Is automatically
deemed a SIP call, the State must
respond to that SIP call wIthin 18
months from the time the State
commitment Is made, or by such earlier
time, If any. that the State commits to
revise the SIP.
P. EPA and State Review Role
1. Proposal
The proposal indicated that the
Federal agency must give EPA, State
and local air agencies, and relevant
Federal agencies a 45-day notice about
the proposed Federal action and draft
conformity determination, and notify
these same agencies withIn 45 days of
Its final conformity determination
(S 51.855). The State agency Is
responsible for determining If the total
direct and indirect emissions from the
action are Within the emissions budget
specified In the applicable SIP
( 5 5 1.858).
2. Comments
The EPA received several different
comments on the respective roles and
responsibilities for local, State, and
Federal air agencies. Some commenters
felt that EPA should be responsible for
approving or disapproving all
conformity determinations. Others felt
this authority should rest with the State,
while some wanted the MPO to have a
veto on conformity determinations. A
number of commenters wanted a lead
agency designated (similar to that in the
NEPA process) that would coordinate
the conformity decision-making process
or have authority to make a conformity
determination in cases where multiple
Federal agencies were involved in a
Federal action.
3. Response
The consultation procedures outlined
in the proposal requiring consultation
with EPA, State and local air agenciel
and relevant Federal agencies are
contained In the final rule (551.855 and
§51.858). The 45-day notification
period was changed to 30 days to be
consistent with the public participation
requirements. Section 176(c) states that
each Federal agency Is responsible for
making its own conformity
determination. The EPA cannot remove
that authority from the Federal agency
and assign it elsewhere, as suggested by
some cornesenters.
The State air agency does have an
active role in the conformity
determination, however, since the State
indicates whether the action falls within
the SIP emissions budget. Furthermore,
If the emissions from the Federal
activity exceed the emissions budget
and cannot be offset by other activities
under the Federal agency’s control, then
the State agencies have the option of
mitigating emissions from sources not
under Federal control. In this case,
without the State agencies’ agreement to
revise the SIP to Include such mitigation
measures, the project would not
conform. Consequently, EPA believes
the consultation procedures describe
in the conformity rule will ensure
accountability of the Federal action td
the State and EPA, while giving the
ultimate authority and responsibility to
the Federal Agency as intended by
section 176(c).
IV Discussion of Other Issues and
Response to Comments
A. 40 CFR Part 93
1. Proposal
The part 93 provisions apply as soon
as the final rule becomes effective. The
part 51 provIsions direct States to revise
their SIPs to Incorporate the conformity
requirements within 12 months after
promulgation of this rule ( 551.851(a )).
2. Comment
One coinmenter recommended that
the rule provide specific guidance
concerning conformity determinations
in the absence of an approved SIP.
3. Response
As described in the proposal. the part
93 provisIons apply until EPA approves
the conformity SIP revision submittr’
by the State ( 51.85l(b)). An applic
SIP Is currently in place for all areas’
should be used for conformity purposes.
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Federal Register I Vol. 58. No. 228 I Tuesday, November 30. 1993 I Rules and Regulations 63237
B SiP Revision—Deadline
1. Proposal
Although the statute specifies that
EPA should require States to submit
their conformity SIP revisions by
November 15. 1992. the congressional
intent was also that EPA would have
promulgated final conformity rules by
November 15. 1991. In light of the delay
in EPA promulgation of these rules, it is
now clearly impossible for States to
submit conformity SIP’s by November
15. 1992. Therefore. EPA requires States
to revise their SIP’. within 1 year after
the date of publication of the conformity
rule. This approach is consistent with
the congressional Intent to provide
States with a 1-year timeframe to
complete their rulemaking once EPA
had established the Federal criteria and
procedures For conformity
determinations.
2. Comment
Several commenters supported the 1-
year timeframe as being consistent with
congressional intent. One commenter
suggested 18 months. Another
commenter recommended that the SIP
revision be required as soon as possible
and that those revisions should be due
not later than March 15. 1994. The EPA
also received comments requesting
clarification as to which agency is to
submit the SIP revision.
3. Response
The fichl rule incorporates a 1-year
timeframe since that represents an
expeditious schedule for the State
agencies and since this timeframe is
consistent with congressional intent.
considering the actual date of final
Federal rulemaking. The SIP revision
must be submitted by the Governor or
Governor’s designee responsible for
submitting SIP revisions. Responsibility
for implementing the conformity rule
itself should fall to the primary agency
responsible for implementing the S W,
usually the State air quality agency.
If a State does not revise Its SIP
within the 12 months following Federal
Register publication of the final general
conformity rule, then EPA will make a
finding of failure to submit the revision.
which would start the sanctions clock.
Since, in this case, the State would not
have a revised SIP and also would not
have adopted the general confonnity
regulation. any conformity
determinations made prior to State
adoption and EPA approval of the SIP
revision would be subject to the Federal
rule and Federal enforceability
procedures.
In addition, the rule is clarified with
respect to application in areas newly
designated as nonatlainment. In such
cases, the requirement for the State SIP
revision by 12 months after publication
of the general conformity rule could be
unreasonable. Therefore, the rule
provides that a State must revise its SIP
to Include the general conformity
provisions within 12 months of an
area’s redesignation to nonattainment.
The EPA general conformity rule would
apply in any interim period.
C. SIP Revision—General Conformity
1. Proposal
As described in the proposal. EPA
believes that section 176(c)(4)(A) and
(C) of the Act clearly require EPA to
promulgate criteria and procedures for
determining conformity for both generel
and transportation activities (58 FR
13638) and to require States to submit
SEP revisions including conformity
criteria and procedures for both types of
activities.
2. Comment
Certain commenters disagreed with
EPA’s Interpretation of section 176(c)(4)
of the Act, arguing that SIP revisions
should be required only for
transportation activities. However, no
new information was provided by the
commenters.
3. Response
For the reasons described In full In
the proposal, EPA continues to believe
that a SIP revision is required for
general conformity by section
1?6(c)(4)(C) of the Act.
D. Federal Actions—az:sceuoneous
1. Proposal
The description of a “Federal action”
Is set out In the preamble (58 FR 13838)
and in the regulatory portion
(definitions) of the proposal notice.
2. Comment
One commentar requested EPA to
clarify that a renewal of an existing
permit or approval does not give rise to
a new conformity requirement,
assuming the renewal does not
materially alter the type or amount of
emissions associated with the originally
permitted activity.
Some commenters requested that the
NPDES actions should all be required to
undergo a conformity analysis and
others supported the proposal which
calls for a conformity analysis where it
Is an EPA-Issued UPDES permit, but not
where it is a State-issued permit under
a delegated NPDES program.
One commenter stated that Federal
actions should include certain actions
taken by State or regional iion Fedt.ral
agencies.
3. Response
As described in section III C . tim
definition of “Federal actmn in tin:
final rule is changed from the
description in the proposal notice (58
FR 13838) in order to clarify its
meaning. The following responses cover
additional concerns regarding this term
While section 176(c)(2) of the Act mny
be Interpreted to impose certain
obligations on non-Federal actions
under the transportation conlormity
provisions, the same interpretation does
not apply for general conformity (such
as State-issued NPDES permits) szncc
the relevant statutory language is
different.
Section 176(c)(1) does not impose aity
obligations on non-Federal parties other
than MPO’s. Thus. EPA cannot require
non-Federal actions to make conformity
determinations under the general
conformity rule. Where a State is taking
an independent action without Federal
support. even under an EPA approved
program such as a State NPDES
program. there is no Federal action
subject to these rules. On the oilier
hand, where a Federal agency delegates
its responsibility to take certain actions
to a State or local agency, as in the case
of certain block grants under Housing
and Urban Development programs or
Federal NPDES programs, the action
remains a Federal action and the State
must make a conformity determinatioli
on the Federal agency’s behalf.
The EPA agrees that permit renewal
actions or any action that does not
increase emissions, would be exempt
from the conformity rule and is so
stipulated in § 51.853(c)(2)(ii).
H. A pIicab1e Implementation Plan
1. Proposal
“Applicable Implementation plan” is
defined as the most recent EPA-
approved or promulgated SIP (58 FR
I 3849).
2. Comment
The EPA received comments
suggesting that the conformity -
determinations should be based on the
most recent SIP revisions submitted by
the State, even if EPA has not approved
them, until such revisions are
superseded by a more recent State
submittal or by a Federal
implementation plan (FIP); basing
conformity determinations on outdated
and inadequate SIP’s Is “very
unproductive.” Other comments
suggested that actions in regions that do
not have an approved SIP should be
exempt from conformity.
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Certain commenters noted that
Congress included explicit interim
conformity requirements for
transportation plans. programs and
projects. but provided no comparable
language for other Federal actions.
These t.ommenters suggested that.
absent a newly-revised SIP, it is not
possible for a Federal agency to assess
conformity or whether the prolect will
delay timely attainment of any standard
or other milestones
3. Response
The language of section 176(c) refers
to conformity “to an implementation
plan approved or promulgated under
section 110.” The plain language of the
statute does not allow the flexibility
suggested by the commenter.
The applicable SIP is updated by the
State as necessary to meet the Act
requirements. In addition. EPA takes
-action to approve. disapprove, or
promulgate revisions to the SU’. While
portions of an applicable SIP might be
disapproved in certain areas of the
country. the approved portion that
remains constitutes the applicable SIP;
i.e.. an applicable SIP exists in all
regions. upon whkh to determine
conformity. Section 110(n) of the
amended Act preserves the applicability
of previously approved SIP’s. Prior to
the newly-revised SIP, there might not
be any SIP milestones to consider.
simplifying the conformity
determination.
Unlike the transportation conformity
rule which primarily relies on the SIP
emissions budget, the general
conformity rule provides several means
to determine conformity. some of which
do not require a newly-revised SIP (i.e.,
post-1990) and accompanying
attainment demonstration, milestones
and emiscions budget. As described in
§ 51.856 of the proposal. general
conformity can be demonstrated by air
quality modeling, obtaining emissions
offsets, or determining that the action
does not increase emissions with
— respect to the baseline emissions. Thus.
the obligation to determine that Federal
actions will not cause or contribute to
NAAQS violations under section
176(c)(1)(B) applies even where recent
SIP revisions have not been submitted
or approved.
F Increase the Frequency or Severity
1. Proposal
“Increase the frequency or severity”
means to cause a location or region to
exceed a standard more often or to cause
a violation at a greater concentration. “A
greater concentration” could be taken to
mean any value numerically greater
than previously existed. In the case of
monitored ozone data, measurements
are made in parts per million to only
two significant figures. In the case of
modeled data, if results are reported to
three significant figures. then a
difference In the third significant figure
is considered to be a difference for
purposes of conformity determinations.
2. Comment
A commenter stated that, given the
limitations of current air quality models.
it seems unrealistic to deal with such a
level of significance in considering
“increases in the frequency or severity”
of existing air quality violations.
Another commenter stated that it will be
virtually impossible to meet this
requirement.
3. Response
- The distinction between significant
figures in measured and modeled
numbers is made in order to be
consistent with current EPA guidance
for interpretation of measured and
modeled air quality data. Since
emissions in nonattainment areas are
generally decreasing, the ambient
concentrations should also be
decreasing. Thus, it would not be
impossible to show an action does not
increase the frequency or severity of
existing air quality violations.
G. Maintenance Area
1. Proposal
Maintenance area means an area with
a maintenance plan approved under
section lisA of the Act (S 51.852).
2. Comment
The EPA received comments asking
for clarification of the definition,
specifically wanting to know if this
definition includes all maintenance
areas as designated under both the 1977
and 1990 amendments to the Act.
3. Response
The definition includes only those
areas that were redesignated from
nonattainment to attainment (La.,
maintenance areas) after the 1990
amendments to the Act.
H. Offsets
1. Proposal
The proposal refers to emission offsets
in S 51.056.
2. Comment
One commenter requested EPA to
clarify that offsets must go beyond those
reductions necessary for attainment of
the NAAQS.
3. Response
Emission offsets are an integral part of —
the air program. especially within the
NSR program. The final conformity rt 1
includes a definition of offsets which i
consistent with EPA guidance regarding
the use and restriction, for offsets. This
definition is intended to assure that
offsets within the air programs are
calculated end credited consistently and
that the term is used the same in the
conformity rules as in the EPA NSR
program. AU offsets must, therefore, be
quantifiable, consistent with the
applicable SIP attainment and RFP
demonstrations, surplus to reductions
required by. and credited to. other
applicable SIP provisions, enforceable at
both the State and Federal levels, arid
permanent within the timeframe
specified by the program.
I. Definitions—Miscellaneous
1. Proposal
Certain terms described below were
not defined In the proposal.
2. Comment
The EPA received general comments
requesting the rule to be clear.
3. Response
The EPA added or remov d
definitiQns of the following terms in th
rule In order to clarif 7 the requiremen
(1) “Administrator ‘ was deleted sin
the term is not used In the rule.
(2) In the definition of “Applicable
SIP,” the sentence in the proposal
referring to maintenance plans does not
appear In the final rule because it does
not change the meaning of the definition
and “maintenance plan” is defined
elsewhere In the rule.
(3) The definition of “Milestone” is
clarified with respect to PM—b by
referencing section 189(c)(1) of the Act.
(4) The definition of “Metropolitan
Planning Organization” is revised to be
consistent with the definition in the
transportation conformity rule.
(5) “Nonattainment Area” is clarified
to refer to areas designated as
nonattainment under section 107.
I. Conformity Determination
1. Proposal
In some cases, multiple Federal
agencies may need to make a conformity
determination for a related project. A
Federal agency may either conduct its
own conformity air. quality analysis or
adopt the analysis of another agency, for
example, the lead NEPA agency. A
Federal agency must always make its
own conformity determination.
Allowing each Federal agency with
responsibility for makings conformity
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determination to develop its own
nnalysis or adopt that of another Federal
agency, gives flexibility to the Federal
agency and fulfills the agency’s
responsibility for making a conformity
detennination. A Federal agency retains
the ability to conduct its own air
analysis or use that of another Federal
agency and make its own conformity
decision. If an agency, due to one of its
analyses, determines that the project
does not conform, then it may not make
a positive conformity determination. If
there are differing conformity
determinations for a Federal action by
several Federal agencies involved, the
respective agencies would have to
reconcile their differences before the
entire project could proceed.
If another Federal agency disagrees
with a Federal agency’s conformity
determination, but does not Itself have
junsdiction for the Federal action, then
the Federal agency should provide
written comments to the Federal agency
with jurisdiction. The Federal agency
with jurisdiction is required to consider
the comments of other interested
agendas under the proposed rules.
2. Comments
A number of commenters supported
the procedures outlined In the proposal.
One commenter suggested that the
general conformity rule use the same
interagency coordination procedures as
those In the new transportation statute.
Some commenters felt that a lead
agency, similar to that used in NEPA.
should have responsibility for the
conformity determination; one
commenter suggested the lead agency
should be the one with continuing
authority over the project.
3. Response
Th. final rule requires that each
Federal agency be responsible for
making Its own conformity
determination as described In 551.854.
The rationale for this Is explained In the
response to comments on the EPA and
Slate review roles. Because section
176(c) IndIcates that each Federal
agency Is responsible for m Idng Its own
conformity determination. EPA cannot
remove that authority from the Federal
agency end assign It elsewhere.
Although the general conformity rule
does not specifically Identify a lead
y. coordination of conformity
det min tions will be necessary
becAuse all Federal agencies with
l icthm over the project will have to
a positive conformity finding for
the pro ject to proceed. Therefore,
differences among Federal agencies will
have to be resolved through
consultation among those agencies. The
EPA is not mandating formalized
consultation and dispute resolution
procedures, but rather leaves this to the
discretion of the Federal agencies
Involved to allow for greater flexibility.
K. Air Quality Related Values (AQRV’s)
1. Proposal
The proposal did not specifically
address AQRV’s.
2. Comment
Cite commenter stated that
confonnity should be applied broadly.
so that Federal actions will not
adversely affect the AQRV’s of protected
Federal lands.
3. Response
To the degree that a SIP includes
requirements related to AQRV’s, a
Federal action would need to conform
to those SIP provisions. The EPA
believes that section 176(c) of the Act Is
intended to protect the NAAQS and the
SIP. Section 176(c)(1)(A) and (B) define
conformity, and do not include
reference to any parameters beyond SIP
requirements and NAAQS. Thus, the
conformity rule does not require the
conformity analysis to cover values
other then the NAAQS, unless they are
specifically contained In the SIP. For
example. if a SIP contains PSD
requirements, a Federal action must
conform to those requirements to the
extent they apply; In general, actions
subject to PSD would not need a
conformity analysis since the stationary
source emissions would be exempt
under S 51.853(c)(1) or S 51.853(b)(1)
and any vehicle emissions associated
with the action would not usually be
subject to the PSD requirements.
L. Frequency of Conformity
Determinations
1. Proposal
A conformity determination expires if
the action Is not taken in a reasonable
time period (58 FR 13844). The EPA
believes that conformity determinations
should not be valid Indefinitely, since
the environment surrounding the
proposed action will rh.n 65 over time.
The EPA proposed that the
conformity status of a general Federal
action automatically iapses 5 years from
the date of the initial determination if
the Federal action has not been
completed or If a continuous program
has not been commenced to Implement
that Federal action in a reasonable time.
“Commenced” as used here has the
same general meaning as used in the
PSD program (40 R 51.168).
2. Comment
The EPA received Comments both
supporting and criticizing the 5-year
period and other comments suggesting a
3.year period to be consistent with the
transportation rule. One commenter
suggested (hale “continuous program”
of on-site construction includes design
and engineering work.
3. Response
The 5.year time frame for conformity
determinations, as described in the
NPR. is contained In the final rule. The
3-year timeframe for the transportation
conformity rile is specified in section
176(c)(4)(B)(ii) of the Act. However.
there is no similar specification in
section 176(c) for the frequency of
general conformity determinations.
After extensive consultation with the
Federal agencies and review of the
comments, EPA has decided to keep the
5-year renewal timneframe for general
conformity decisions because it is
consistent with the renewal frequency
of NEPA decisions rather than the 3-
year timeframe required for
transportation conformity. Consistency
with NEPA Is Important In order to
allow Federal agencies to Incorporate
the new conformity procedures within
their existing NEPA procedures. Most
general conformity actions also need
NEPA analyses. but would not need
transportation conformity decisions.
The EPA agrees that a continuous
program of on-site construction may
include design and engineering work.
Where on-site construction has been
commenced and meaningful design and
engineering work Is continuing, this
represents the kind of commitment to an
action which should not be jeopardized
by expiration of a previous conformity
determination.
The rile Is clarified In § 51.85 7(a) to
refer to the “date a final conformity
determInation Is reported under
§ 5 1.855.” This replaces the phrase the
“date of the Initial conformity
determination” since It Is clearer. The
rule Is also clarified In § 51.657(b) to
replace the vague phrase “the scope of
the project” with “the scope of the final
conformity determination reported
under §51.855,” The final rule also
contains a provision In 551.857(c)
which clarifies that actions which are
taken subsequent to a conformity
determination must be consistent with
the basis of that determination
M. Tienng
1. Proposal
The EPA proposed that Federal
agencies could use the concept of tiering
and analyze actions In a staged manner
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( 51.858. paragraph (d)l. Tiering would
not be acceptable for purposes of
determining applicability ( 51.853),
however, since that approach might
have undermined the rule if agencies
chose to narrowly define their actions as
separate activities for purposes of
determining applicability.
2. Comments
A few commenters supported the use
of tiering for conformity decisions and
pointed out that it gives the Federal
agency needed flexibility in planning.
Many other commenters were opposed
to conditioning long-term conformity
decisions. Some opposed tiering
because conditional findings create
uncertainty, making it difficult for
developers and lenders to justify
investment in long-term projects. Others
were against it because they felt it could
result in a misleading conclusion that a
meaningful analytical judgment has
been made and that it would invite
conflict between investment-backed
expectations and the protection of
public health.
3. Response
The EPA agrees with the commenters
who stated that tiering would create too
much uncertainty in the conformity
determination process. Furthermore, it
was thought that tiering could cause the
segmentation of projects for conformity
analyses, which might provide an
inaccurate estimate of overall emissions.
The segmentation of projects for
conformity analyses when emissions are
reasonably foreseeable is not permitted
by this rule. Thus, the tiering provision
is not included in the final rule. A full
conformity determination on all aspects
o! an activity must be completed before
any portion of the activity is
commenced.
N. Applicability—Regionally Significant
Actions
I. Proposal
The EPA proposed the concept of
“regionally significant actions,” to
capture those actions that fall below the
de minim is emission levels, but have
the potential to impact the air quality of
a region. When the emissions Impact
from a Federal action does not exceed
the tons per year cutoff fore Federal
action otherwise requiring a conformity
determination, but the total direct and
indirect emissions from the Federal
action represent 10 percent or more of
anonattaimment area’s total emissions
Ibr that pollutant, the action Is defined
by the proposed regulations as a
regionally significant action and must
go through a full conformity analysis
( 51.853(g)).
2. Comment
Many commenters supported the
concept of regionally significant actions
and believed that conformity
determinations should be required for
them. However, there was diverse
opinion on the most appropriate level to
define a regionally significant action;
some commenters felt 10 percent of a
nonattainment area’s emissions for a
pollutant lobe too high, while others
felt It was too low. However, no
coinmenters provided specific
documentation to support a different
number. There were also some
commenters who felt the entire concept
of regional significance to be
inappropriate and that the de minimis
cut-offs should suffice for conformity
applicability requirements.
3. Response
EPA is maintaining the requirement of
conformity determinations for
regionally significant actions in the final
rule as defined in §51.853 of the NPR.
The rationale Is explained in the
preamble to the NPR (58 FR 13842). The
EPA specifically Invited comments and
documentation on whether 10 percent
was an appropriate significance level or
whether some other percentage should
be set. In view of the fact that
documentation for more appropriate
significance levels was not provided by
the commenters, the 10 percent level of
significance is used. In addition, the
rule Is clarified to indicate that the
requirements of § 51.850 and 51.855
through 51.860 apply to regionally
significant actions.
0. Applicability—NAAQS Precursors
1. Proposal
The PM—b precursor pollutants
should be Included in the conformity
analyses where the applicable SIP’s
control strategy requires reductions In
such precursor pollutants. For ozone,
emissions of NOx and VOC must be
considered for purposes of both
applicability and analysis. However 1
where an area received an exemption
from NOx requirements under section
182(f) of the Act or the control strategy
in the approved maintenance plan does
not Include NOx control measures, only
VOC emissions need to be considered
(58 FR 13847).
2. Comment
Coinmonters indicated that analysis of
PM—b precursors should be required to
satisfy the provision of section
176(c)(1)(B)(l) that Federal activities
must not contribute to any new
violation of any standard in any area.
Another commenter indicated that thi
rule should consider the regional I
of NOx emissions compared to VO
emissions.
3. Response
Section 189(e) of the Act provides that
applicable control requirements under
PM—It) nonattainment area SIP’s in
effect for major stationary sources of
PM—It) are also applicable to major
stationary sources of PM—ID precursors.
except where EPA determines that the
sources of PM—ID precursors do not
contribute significantly to PM—la levels
which exceed the PM—iD NAAQS in the
area. Consistent with this evidence of
congressional intent, the final
conformity rule requires the inclusion of
PM—la precursors in conformity
analyses where they are a significant
contributor to the PM—it) levels in the
PM—ID nonattaininent area SIP. The
significant contribution may be from
major stationary sources as well as other
types of sources.
In contrast, the Act specifically
requires reductions In emissions of both
NOx and VOC to meet the OSOflO
standard. Only where there Is a
demonstration consistent with the
requirements of section 182(f) and EP -
approves the demonstration are the I
reductions not required. Thus, the
conformity rule provides for the
consideration of the regional Impact of
NOx emissions In ozone nonattainment
and maintenance areas, as described in
th proposal.
The final rule includes a definition of
the phrase “pracursors of a criteria
pollutant,” This definition incorporates
the concerns described above. A
definition of “total of direct and indirect
emissions” is added to the final rule, as
discussed elsewhere In this preamble,
and includes the phrase “emissions of
precursors of criteria pollutants” in
order to incorporate this concept into
the final rule.
P. Attainment Demonstrntion
1. Proposal
Paragraph (a)(i) of 51.858 provides
that a Federal action conforms if
emissions from the action are
“specifically Identified and accounted
for” In the applicable SIP’s attainment
or maintenance demonstration.
2. Comment
A commenter suggested that a Federal
action should be determined to conform
where the total emissions from the
Federal action are “consistent with
pro jected levels of emissions Inveni
forecasts In the applicable SIP
attainment demonstration.
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I Responso
The EPA believes that the language
proposed In §51.858(a)(1) is
appropriate. Specificity is needed in
order to avoid letting this provision
become a significant loophole, open to
varying Interpretations. On the other
hand, the emissions budget provision In
S 51 858(a)(5)(1) proyides a mechanism
similar to that suggested by the
commenter.
Q. Trnnsportation Conformity
1. Proposal
Section 51 858(a)(5)fli) provides that a
Federal action that is specifically
included in a conforming transportation
plan. would be determined to conform.
2. Comment
One comments; stated that the MPO
should be involved in determining
when a project Is specifically included
in a transportation plan.
3. Response
The final rule is clarified to indicate
that the MPO must determine that an
action Is “specifically included” In a
conforming plan since the MPO Is likely
to be better qualified to make that
interpretation than the Federal agency
making the conformity determination.
The rule Is also clarified to state that a
conforming plan refers to a
transportation plan and transportation
improvement program which have been
found to conform under 40 CFR part 51
or part 93.
R. Baseline Emissions
1. Proposal
Where EPA has not approved a
revision to the relevant SIP attainment
or maintenance demonstration since
1990, a Federal action may be
determined to conform if emissions
from the action do not increase
emissions with respect to the baseline
emissions (paragraph (d) of §51.858).
2. Comment
A commenter suggested that the rule
or preamble should clarify that Federal
agencies may use the latest emissions
inventory available from State end local
agencies in gauging the baseline.
Further, conformity determinations
based on such inventories should
remain valid, and not be re-analyzed
when a new inventory Is complete.
Another commenter stated that It is
not appropriate forarees which were
desiçated nonattahment before the
1990 amendments to the Act to .isua
year before 1990 as the baseline. Such
areas are required to submIt 1990
emission inventories. For areas
designated nonattainment after the 1990
amendments to the Act, the approach to
establishing baselines in the proposal
may be appropriate.
One commenter pointed out that
using 1990 as a baseline Is Inappropriate
In many cases since many Federal
actions related to the military took pjace
at the Lime of Desert Storm. As an
alternative they suggest the rule allow
use of a baseline established from the
highest estimated emissions over a 3-
year period from 1989—01. Regarding
military base closure actions, one
commenter stated that the baseline
emissions should be the preclosure
announcement baseline operating
conditions. This approach does not alter
the emissions budget that would have
existed if a base continued to operate.
Such emissions were contained In the
existing and Future emissions Inventory
numbers being used by the South Coast
Air Quality Management District in its
1989 air quality plan. This should be the
emissions budget used to make the
conformity determination for that
District.
The EPA also received a comment
stating that if 1990 emIssions inventory
levels are used as a baseline, it Is
important that some type of “credit” be
given to a Federal agency that is
required to make a conformity
determination with respect to an airport
related improvement or modification
project at an airport that has already
Implemented significant emission
reduction measures prior to 1990. This
credit could be made by increasing the
de mlnlmls amount for certain airport
actions.
Several comnienters requested
clarification on how to calculate the
baseline emissions. One çommenter
recommended that the comparison
should be between the “action” versus
“no’actlon” and not between the
“action” and “1990 base.”
3. Response
The baseline calculation is discussed
in the proposal (58 FR 13846) and
specifies calendar year 1990 or an
alternate time period, consistent with
the time period used to designate or
classify the area In 40 CFR part 81. Use
of the “latest emission Inventory”
should, In many cases, coincide with
use of the 1990 Inventory since the 1990
amendments to the Act required all
ozone nonattainmerit areas to develop a
1990 inventory. For PM—b. the Act also
required an emissions Inventory. But,
for the Initial PM—b areas designated
nonattainment as of enactment, the
inventories are generally for I of the
calendar years in the mid- to late-19B0’s.
The approach in the final rule usec
1990, which is the baseline year
specified in the Act from which to
measure progress toward attainment. the
PM—b emissions inventory years (not
specifically included in the proposed
-rule). or the designation/classification
time period, which Is representative of
emission levels that must be reduced in
order to provide for attainment Use of
more recent emissions inventories may
not be appropriate since such
inventories might not be representative
of the full extent of the emissions
associated with the air quality problem
The EPA sees no basis for the rule to
select certain activities for “credit” due
to previously implemented emission
reduction measures, whether at airports
or military bases. Such decisions reside
with the State when the control strategy
and emissions budget are developed
Since the final rule allows use of the
years other than 1990 where
appropriate. it could, in effect, provide
some of the “credit” the commenter is
suggesting in some cases.
As described In the proposal. baseline
emissions are defined as the total of
direct and Indirect emissions that are
estimated to have occurred during
calendar year 1990 or an alternate
period based on the classification or
designation as promulgated in 40 CFR
part 81. The proposed rule Intended to
provide for a positive conformity
determination If the future use of the
area resulted In equal or less emissions.
However, the proposal did not take into
account that any motor vehicle emission
activities occurring in the baseline year
would, In fact, emit less in the future
year scenario (at the same, historic
activity levels) due only to improved
emissions controls In newer vehicles.
Thus, the proposed rule was skewed in
a manner that unjustifiably could
appear to allow future actions to
conform. Therefore. § 51.B58(a)(5)(ivj(B)
of the final rule Is revised to focus on
the baseline activity levels rather than
the baseline emissions and the emission
calculations must use emission factors
appropriate to the future years analyzed.
In other words, the rule specifies a
“build/no build” test, not a “build!
1990” test.
S. Annual Reductions
1. Proposal
Paragraph (c) Qf 551.858 of the
proposal states that a Federal action
may not be determined to conform
unless emissions from the action are
consistent with all relev int
requirements and milestones contained
in the applicable SIP, such as elements
Identified as part of the RFP schedules.
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63242 Federal Register I Vol. 58. No. 228 / Tuesday. November 30. 1993 / Rules and Regulations
2 Comment
The EPA received comments
suggesting that the rules should require
Federal activities to be consistent with
the RFP requirements of the Act and
with expeditious attainment of the
NAAQS. Thus, the general conformity
rules should be amended to require
Federal agencies to demonstrate that
their activities are achieving annual
reductions in emissions and are
consistent with State efforts to achieve
attainment as expeditiously as
practicable.
A commenter noted that the proposed
rule would allow Federal agencies to
satisfy the conformity provision by
merely offsetting predicted emission
increases horn a project on a 1.1 basis.
The corn menter suggested that the rule
should be modified to specify that a
Federal action only conforms if the
action is contributing to the required
annual reductions in emissions and is
consistent with State efforts to achieve
attainment as expeditiously as
practicable.
Another commenter noted that
emissions budgets set in the SIP are
supposed to accommodate growth.
3 Response
The EPA believes that, for the general
conformity, the provisions in paragraph
(c) of § 51.858 meet the section 176(c)
Act requirements for RFP and other
milestones end that additional language
concerning attainment as expeditiously
as practicable would not substantively
altar these requirements. A State has
considerable discretion to select a
strategy to meet the RPP requirements.
Neither the Act RFP requirements nor
the Act general conformity requirements
specify that each individual Federal
action contribute proportionately to
emission reductions. Instead, the Act
generally allows a State to choose a
strategy that might achieve greater
reductions at certain sources and lesser
or no reductions at other sources, and
which may provide for growth in certain
areas. The transportation conformity
rule, in contrast to the general
conformity rule, reflects specific
provisions of section 176(c) of the Act
regarding specified required emission
reductions from transportation
activities. Consequently. so long as
general Federal actions meet the
requirements of the general conformity’
rule, EPA believes that such acLiv ties
would be consistent with the SIP. RF
and attainment demonstrations and 1
every general Federal action is not
required by the Act to result in an
emissions decrease.
T. Summary of Criteria for Determining
Conformity
1. Proposal
The proposal contained a narrative
description of the § 51.858 requirements
for making conformity determinations.
2. Comment
Some commenters requested EPA to
include in the final rule preamble a
table summarizing the requirements in
§ 51.858.
3. Response
The following table summarizes these
requirements; it should not be read to
substitute for the regulatory language
itself. If there is a conflict between the
table and other portions of this final
rulemaking notice, the table should not
be relied upon.
U Planning Assumptions
1. Proposal
Paragraph (a) of § 5 1.859 requires the
conformity analyses to be based on the
latest planning assumptions approved
by the MPO.
2. Comment
A commenter recommended that
conformity determinations should be
based on the latest planning
assumptions used In establishing the
SIP’s RFP emissions target(s) and
emissions budget(s). State. should be
required to evaluate and update the
SW’s planning assumptions used for
demonstrating RFP and attainment.
Discrepancies between the planning
assumptions end estimate. used to
demonstrate RFP and attainment and
those used for project-level conformity
determinations could distort estimates
of growth In emissions in the
nonattainment area.
3. Response
As noted in the preamble to the
proposal (58 FR 13846). EPA
acknowledges that the conformity
determination may be more difficult
where the assumptions In the SIP differ
from the recent ?vWO assumptions. For
actions such as wasteweter treatment
plants, planning assumptions are indeed
critical. However, for many other
Federal actions, the planning
assumptions are not as critical a factor
in determining conformity.
In addition, the plain language of the
statute does not allow the approach
suggested by the commenter. Section
176(c) of the Act states: “The
determination of conformity shall be
based on the most recant estimates of
emissions, and such estimates shall be
determined from the most recent
population, employment, travel and
congestion estimates as determined by
the metropolitan planning organization
or other agency authorized to make such
estimates.” Tbus, EPA must require use
of the most recent planning
assumptions.
In the event any revisions to these
planning assumptions are necessary.
§ 51.859(a)(2) in the proposal indicated
that such revisions must be approved in
writing by the MPO or otjmer agency
authorized to make such’ stimates lot
the urban area. This section has beer
revised in the final rule to indicate thi
written approval is not required. as long
.
Section 51 858(a)
Areawide only
Local and possibly areawide
Local only
0,
NO,
PM—b
CO ‘
Pb/SO,
X
X
.
(1) Specified in attainment or maintenance demosiration
(2) Offsets within same nonattainment/maintenance area
(3) Areawide and local modeling
(4)(u) Local modeling only if local problem
(4)(iu) Areawide modeling only or meet (5)
(5)(i) Emissions budget
(5)(it) Transportation plan
(5)(iui) Offsets
(5)(iv) Baseline/No Increase
(5)(V) Water project
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
X
()
C)
()
C)
C SS
X
X
X
X
()
C)
()
I ’)
(. U.S
X Option to show conformity.
‘=Optlon if areawide problem.
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Federal Register F Vol. 58. No. 228 / Tuesday, November 30. 1993 / Rules and Regulations 63243
as the MPO or appropriate agency has
authorized the change, so as not to delay
the conformity analysis.
V. Forecast Emission Years
1. Proposal
Paragraph 51.859(d) in the proposal
identified the emission scenarios to be
considered. Total direct and indirect
emission estimates were proposed to be
projected, consistent with key dates
with respect to the amended Act, the
project itself, and the applicable SIP.
Thus, the analysis was proposed to
contain:
(1) The Act mandated attainment year
or. if applicable, the farthest year for
which emissions are projected in the
maintenance plan;
(2) The year during which the total
direct and indirect emissions from the
action are expected to be the greatest on
an annual basis; and
(3) Any year for which the applicable
SIP specifies an annual emissions
budget.
2. Comment
One cbmmenter indicated that the
emission scenarios requirement should
be omitted and lead agencies be allowed
to determine the scenarios on a project-
specific basis. Another commenter
stated that the analysis should Include
a maintenance period. The EPA also
received a comment that all Federal
actions must be analyzed for their
Impact In the 20(+)-year tiineframe.
3. Response
The scenarios proposed by EPA era
also reflected in the final rule because
they are the minimum possible
scenarios which still meet the statutory
requirements that relate conformity to
attainment, maintenance. SIP
milestones, and RIP. The above
emission estimates are necessary in
order to assure that the Federal action
would not “delay timely att*lnment of
any standard or any required interim
emission reductions or other milestones
In any area” (section 176(c)(1)(B)(Iii) of
the Act). This provision links emissions
from the action to the emission
reduction targets required by the Act to
demonstrate RIP prior to the att*inment
date. Emission estimates are also needed
to provide for determinations of
conformity with respect to maintenance
plans as required by section
178(cJ(4XB)(il) of the Ad. For an action
to conform tn the applicable SIP, it must
COn at a of the above tlme.
The inclusion of a maintenance
period Is not reasonable since many
SIP’s may not hive Identified a
maintenance period. The rigidity of a
20(+)-year timeframe is also
unnecessary. Rather, the emission
scenarios should be keyed to the
relevant years for RFP, attainment and
maintenance planning specified In the
SIP. In some, but not all, cases a 20(+)-
year timeframe will, In fact, be
necessary under the final rule to meet
one of the specified emission scenarios.
W. Total of Direct and Indirect
Emissions
1. Proposal
The preamble states that “net”
emissions from the various direct and
indirect sources should be used in the
applicability and conformity analyses
(58 FR 13847). However, the rule uses
the phrase. “total direct and indirect
emissions.”
2. Comment
A commenter suggested that EPA
should expressly state in the final rule
that “net” emissions from the particular
Federal action under review should be
evaluated In determining both
applicability and conformity.
Another comment stated that the
conformity analysis should Include the
direct and indirect impacts of the
Federal activity along with all other
reasonabLy foreseeable projects (Federal
and non-Federal) In the area.
3. Response
The final rule is revised to clarify that
the total direct and indirect emissions
may be a “net” emissions calculation.
For example, where an agency has
several offices In one metropolitan area
and is considering consolidation into
one large centralized office, vehicular
activity may actually decrease,
depending on the location of the new
office building, availability of mass
transit, and other factors. In such cases,
the Federal agency should consult with
the !WO in d tarmining the “net”
emissions from such an action.
Consultation with the !vWO Is also
important to help assure that indirect
emissions, once attributed to a source,
will not be double-counted by
attributing the same emissions to nearby
projects that are subsequently reviewed,
The conformity requirements for
applicability and analysis generally do
not include reasonably foreseeable
projects other than those caused by the
Federal action, Thus, the calculation of
emissions for de minimis or offset
purposes includes only the (net) direct
and indirect emissions caused by the
Federal action In question. However,
where an air quality modeling analysis
is part of the conformity determination,
the EPA guideline on s ix quality models
(reference In § 5 1.859) requires the
modeling to Include emissions from
existing sources as well as the potential
new emissions due to the Federal action
In order to accurately determine the
effect of the action on the NAAQS and
whether the action might cause or
contribute to a new violation or worsen
an existing violation.
In addition, the definition is revised
to clarify that emissions of criteria
pollutants and emissions of precursors
of criteria pollutants (as defined in the
final rule) are included within the
meaning of “total of direct and indirect
emissions.” Further. the final definition
makes it clear that the portion of
emissions which are exempt or
presumed to conform under §51 853 are
not included in the “total of direct and
indirect emissions.”
X. New or Revised Emissions Models
1. Proposal
The proposed rules require use of the
most current version of the motor
vehicle emissions model specified by
EPA and available for use in the
preparation or revision of S1 ’s (58 FR
*3852),
2. Comment
One comrnenter suggested that the
final rules should provide that
conformity determinations be made
with the same mobile source emissions
model as was used in the development
of the SIP until such time as EPA
approves a SIP revision, based on a new
model.
Another commenter noted that the
latest planning assumptions may not be
consistent with assumptions contained
in the SIP. In such cases. the coinmenter
suggests that the final rule should allow
the affected agencies to determine
which prevails. The commenter also
suggested that the general conformity
rule should provide a transition period
similar to that In the transportation
conformity rule, where EPA updates the
motor vehicle emissions model.
3. Response
The statute requires the determination
of conformity to be based on the most
recent estimates of emissions, and such
estimates sbaU be determined from the
most recent population, employment,
travel, and congestion estimates as
determined by the MPO or other agency
authorized to make such estimates. As
noted In thu proposal (58 FR 13846—
13847) EPA recognizes this Issue and
urges that these estimates should be
con Wlstent with those in the applicable
SIP, to the extent possible. However,
based on the clear statutory language,
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63244 Federal Register I Vol. 58,
No. 228 I Tuesday, November 30, 1993 ‘ Rules and ReguJatior s
the most recent estimates must be used,
rather than the estimates that may have
been used in (older) SIP revisions. In
cases where the emissions estimate in
the applicable 511’ is outdated and the
Federal agency chooses not to rely on it
in the conformity analysis. the final
conformity rules allow a Federal agency
to demonstrate conformity through
analyses that focus on emission offsets
andlor airquality modeling.
Section 51.859(b) of the final rule
includes provisions to provide
flexibility for cases where use of
otherwise required emission models or
emission factors is inappropriate and
the approval of the EPA Regional
Administrator is obtained. In addition,
the final rule provides a reasonable
grace period where the EPA motor
vehide emissions model has been
- updated, so that ongoing analysis efforts
are not unduly disrupted. The grace
period is consistent with the provisions
in the transportation conformity rule as
suggested by the comment.
Specifically, the rule establishes a 3-
month grace period during which the
motor vehicle emissions model
previously specified by EPA as the most
current version may be used. In
addition, conformity analyses for which
the analysis was begun during the grace
period or no more than 3 years before
the notice of availability of the latest
emission model may continue to use the
previous version of the model specified
by EPA.
Y. Air Quality Modeling—General
1. Proposal
Where the conformity analysis relies
on air quality modeling, that modeling
must use EPA-approved models, unless
otherwise approved by the EPA
Regional Administrator (paragraph (c) of
§ 51.8591. The analysis must Include
any year for which the applicable SIP
specifies an annual emissions budget
(paragraph (d)(3) of § 51.859).
2. Comment -
One commanter pointed out several
problems in the rules: the rule would
require the use of models that are
inappropriate for complex terrain;
before any models can be used, they
must be EPA-approved; and conformity
determinations should also Include an
analysis of the milestone years that are
used in the SIP to demonstrate
M inmant .
3 . Respmise
As proposed, the final rules generally
require use of EPA-approved models,
including complex terrain models In
some cases. However, where such
models are unavailable for a particular
application, alternate air quality
analyses can be conducted upon
approval of the EPA Regional
Administrator. The EPA believes it is
essential to standardize air quality
model applications since models could
otherwise be invented or existing
models manipulated to show virtually
any results desired.
However, § 51.858(a) (3) In the final
rule does not apply to ozone or nitrogen
dioxide modeling efforts. The EPA
believes that, as a technical matter,
application of existing air quality
dispersion models to assess project level
emission changes for these regional
scale pollutants is generally not
appropriate. That Is, photochernical grid
models are generally not sufficient to
assess incremental changes to axeawide
ozone concentrations from emissions
changes at a single or group of small
sources. Emission changes should
amount to some significant fraction of
base emissions before photochemical
grid modeling results can be Interpreted
with ufflcient confidence that the
results are not lost In the noise of the
model and the Input data.
In addition, § 51.858(a) (3) and (4) are
revised to clarify that, In some cases,
either local or areawlde modeling or the
provisions of § 51.858(a)(5) for CO and)
or PM—b would satisfy the § 51.858(a)
requirements. As specified In
S 51.858(a)(4), the State agency
primarily responsible for the applicable
SIP would Identify the cases/areas for
which both local and areawide
modeling is not needed to 4eznonstrate
conformity since that agency has the•
expertise to make such a determination.
The analysis required In paragraph
(d)(3) of 551.859 Is for the same years
as the milestone years noted by the
commenter. This requirement applies
where the applicable SIP specifically
includes emissions budgets for the
milestone and/or attainment years.
Z. Air Quality Modeling —PM- I 0
1. Proposal
The proposal called for modeling of
localized PM-b impacts in some cases
(551.858).
2. Comment
This analysis Is not currently in use
in California and Is unfamiliar to
technical air quality consultants and the
California Air Resources Board.
3. Response
The EPA’s air quality modeling
guideline contains models intended
specifically to analyze the local and
regional Impacts of PM-1O, including
point, area, and volume sources. In
addition, EPA will be making guidance
available on how to use an existing.
guideline model (CALINE3) and a
EPA guidance to analyze the local’
quality impacts of PM—b roadway
emissions.
AA. Activity on Fed eruily-Mcnoged
Land
1. Proposal
The preamble to the general
conformity proposal indicates that
pres 1bed burning activities by FLM
could be one activity affected by the
rule.
2. Comment
Comments submitted by Federal land
managers Include general comments
that are addressed elsewhere in this
preamble. Some of the comments are
more specific to their land management
activities and are addressed here.
Regarding de minimis levels, one
commenter stated that the proposed rule
mixes up emissions and impacts; the
rule should focus on the “effect” on the
nonattainment area rather than
emissions. The commenter stated that
the approach has implications for
prescribed burning. Prescribed burning
is a temporary source that may oocv-
a time of year when the air quality
standards are not being violated. h
addition, the focus on emissions is
a problem when the smoke is blown
away from the nonattalnment area. -
3. Response I
Regarding de mimimig levels, the
emissions-based threshold does not
provide asdirect an indicatorof a
project’s air quality Impact as an
ambient concentration-based threshold.
It was selected for the final rule,
however, because It does provide a
rough indicator of a project’s Impact. In
addition, It wu selected because it Is
not feasible to expect Federal agencies,
at the conformity applicability stage, to
perform the air quality dispersion
modeling analysis necessary to
determine whether a project is above an
air quality concentration. Such an
analysis would be time consuming and
potentially result in the Federal agency
having to expend significant resources
analyzing the air quality impact of an
action that could be determined, upon
completion of analysis, to have a “de
minimis” air quality impact. Moreover,
for some actions requiring an air quality
modeling analysis up-front is a po -— ’
waste of resources wien the Fader
agency may ultimately select an o
for adequately showing conformity i r
does not Involve air quality modeling.
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Federal Register / Vol. 58. No. 228 / Tuesday. November 30. 1993 / Rules and Regulations 63245
Regarding the timing of prescribed
burns, if a burn occurs during a lime of
year when a nonattainment area does
not experIence violations of the NAAQS
and the applicable SIP’s attainment
demonstration specifically reflects that
finding, then such a burn may be
determined to conform pursuant to
S 51.858(o)(1).
Regarding the direction of smoke
emissions, for the reasons noted above
EPA has selected an emissions-based
threshold for conformity applicability
purposes. Such an approach does not
account for emissions direction or
dispersion. Depending on the nature
and scope of the activity and conformity
option selected pursuant to section
51 858, the conformity analysis may or
may not explicitly address these factors.
Section 5 1.855 was amended, however.
to require the consultation and
notification of FLM’s by other Federal
agencies when a Federal action
requiring a conformity determination is
within 100 km of a Class I area.
4. Comment
Two commenters noted that the rule
could affect many of their agencies’
activities. One commenter stated the
rule becomes less focused as it attempts
to address the different types of Federal
actions. The commenler stated the rule
is unclear about how the Federal agency
should make a conformity
determination for prescribed fire, among
other activities, to take into account the
complex issues Involved. The
coinmenter stated that the rule should
encourage pollution prevention by
exempting actions consistent with an
agency’s pollution prevention plan.
Another comment indicated that most of
its agency’s management plans. which
are programmatic. include emissions
that are not reasonably foreseeable.
5. Response
The final rule applies to
nonattainment and maintenance areas
and requires conformity determinations
for Federal actions where the total of
direct and Indirect emissions exceed de
minimis levels as described In
§ 51.853(b). Section 51.858 provides
several options forshowing conformity
for Federal activity generally, Including
FLM activity. The conformity showing
includes an air quality test where the
Federal agency must demonstrate that
tha iwt mt does not cause or contribute
to an; oew PIAAQS violation or
iaaea the freo iancy or severity of any
ex sthsgvioW1on The Federal agency
aither rn ’ e this showing explicitly
thivug rafr quality modeling or by
sekctinga surrogate option such as
consistency with an emissions budget.
The conformity showing also includes
an emissions test where the Federal
agency must show that the action is
consistent with all SIP requirements and
milestones.
In general, EPA recognizes the
complex problems posed by the goals
and missions of the air quality and land
management agencies and EPA intends
to work with the FLM’s and States to
find solutions. One such area of concern
is ecosystem management and forest
health and the challenges posed to air
quality and visibility by the need for
more prescribed burning expressed by
the FLM.
Regarding reasonably foreseeable
emissions, the rule does not require
Federal agencies to Include emissions in
conformity applicability determinations
or analyses which are not reasonably
foreseeable. Reasonably foreseeable
emissions (as defined in § 5 1.852) are
projected future indirect emissions that
are identified at the time the conformity
determination is made and for which
the location and quantity is known.
Regarding pollution prevention plans,
while the final rule does exempt certain
actions or presume them to conform, it
does not specifically exempt actions
consistent with a Federal agency’s
pollution prevention plan. Paragraph
(c)(2) of § 51.85 3 of the final rule
exempts actions whose total direct and
indirect emissions are below the de
minimis rates and other actions which
would result in no emissions increase or
an emissions increase that is clearly da
minimis. Certain actions listed in
paragraph (c)(3) of § 5 1.853 where the
emissions are not reasonably foreseeable
are also exempt. In addition, paragraphs
(d) and (e) of 5 51.853 of the final rule
identify other actions which are exempt
from conformity, such as Federal
actions in response to emergencies.
Therefore, since this rule does not
exempt them or presume them to
conform, actions consistent with an
agency’s pollution prevention plan that
increase emissions beyond the de
mlnimls levels are subject to
conformity. However, §551.853(g) and
51.853(h) of the rule provide Federal
agencies with the requirements and
procedures to establish activities that
are presumed to conform which could
conceivably include actions consistent
with a pollution plan provided the
rule’s appropriate requirements are met.
Further, to address those situations
where prescribed burns are part of a
conforming smoke management plan.
§ 5l.853(c)(4)(ii) was added to exempt
such actions. -
6 Comment
One comment cuncernud thu air
pollution emissions Information EPA
maintains in a document entitled
“Compilation of Air Pollutant Emission
Factors (AP—42).” The commenter
indicated the document does not
correctly represent emissions from
prescribed burning. The commen tar also
stated that the rule should not require
the development of demographic and
other data from urban nonattamnment
areas when they are not relevant, nor
should the rule dictate such data in
suburban or rural areas in the agenLy’s
planning process. In addition, the
commenter stated that the rule would
require the use of inappropmatu air
quality models Another comrne:iter
stated that models for use in analyzing
prescribed burning emissions in
mountainous terrain have not yet beemi
developed.
7. Response
Regarding emission factors, the final
rule allows for alternative emissions
data to be used where it Is more
accurate than that provided in EPA’s
AP—42 document. Regarding
demographic data. the final rule
requires that all planning assumptions
must be derived from data most recently.
approved by the MPO where available.
Such data are available for urban areas:
the rule does not require its use in
suburban and rural areas if ills
unavailable.
Regarding modeling, if EPA guideline
modeling techniques are not appropriate
In a conformity detormination, then the
rule provides fcr the use of alternative
models provided written approval is
obtained from the EPA Regional
Administrator. If no model is available
for a particular application, then
modeling may not be an option
available for that conformity
determination.
BB. Federalism Assessment
1. Proposal
The preamble to the proposal states
that there are no federalism effects
associated with this rule (58 FR 13848).
2. Comment
One commenter stated that a
federalism assessment should be
conducted under Executive Order
12612.
3. Response
A federalism assessment has not been
conducted under Executive Order
12612. However, federalism effects are
considered throughout this rule (e.g.
discussions regarding State. Federal
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63246 Federal Register / Vol. 58.
No 228 1 Tuesday. November 30. 1993 / Rules and Regulations
igency. and EPA roles in General
Conformity).
V. Economic Impact
The estimates presently available are
preliminary and do not reflect
substantive and recent revisions to the
final rule. These estimates represent
specific information solicited from the
Federal agencies presumed to be
affected by the rule. The EPA is
- interested in comments from the
affected agencies on the economic
impacts presented in this section. A
revised analysis will be prepared and
submitted to 0MB in the form of a
revised Information Collection Request
11CR) under the Paperwork Reduction
Act. 44 U.S C. 3501 etseq.
The preliminary estimates presented
here are based on data provided by the
following sources Department of
Interior IDOl). Department of
Agriculture (USDA). Department of
Energy (DOE). Department of Defense
(DOD), Department of Housing and
Urban Development (HUD) and the
General Services Administration (GSA).
It is estimated by the Federal agencies
that between 10,000 and 50.000 Federal
actions may need to be reviewed
annually for applicability of the
conformity rule. About 15% of these
actions will require a conformity
determination. The estimated cost of
one conformity determination ranges
from $1.700 bra straightforward
determination to $133,000 for a base
closure conformity determination. In
total, the anticipated cost of the general
conformity rule from the raw data
submitted by the agencies ranges from
$63 million per year to $111 million per
year. These annual cost estimates reflect
a U.S. Army Corps of Engineer’s (CUE)
estimated annual cost ranging from $53
million to $102 million.
There are several factors that will lead
to a change in these estimates.
substantially lowering and narrowing
the ranges. These factors are:
(1) Some of the estimates were based
on the inclusive definition co-proposed
by the rule in March 1993, and the
definitions of indirect emissions and
Federal action, but are not
representative of the final rule.
(2) New “de minimis” cutoffs and
various added exemptions are present in
the final rule and differ from the
proposed rule.
13) There is need to completely
amount Ib: overlap of Federal projects
which base air environmental
and are subject to the
Natienal Environmental Policy Act
LN ’AJ as well as the NSR. operating
permit. SIP and FIP, NSP and hazardous
emission standards and other
requirements of the Act.
Most of the cost of determining
conformity falls to Federal agencies
and/or private sponsors of projects
needing Federal action. The Federal
agencies and/or private sponsors will
need to fund the analysis of the actions
for air quality impact. In addition, State
and local agencies may choose to
participate in development and/or
review of the analysis. The incremental
cost estimates Include recordkeeplng,
reporting, performing air quality and
mitigation analysis. and considering
public comments where appropriate.
As stated above, these estimates are
preliminary. Revisions will be
addressed in a forthcoming revised
document that will specifically assess
the costs and recordkeeping and
reporting burden of the rule, as
stipulated under Section Vl(C)
Paperwork reduction Act below.
V I. Administrative Requirements
A. Executive Order 12866
Under Executive Order 12866, (58 FR
51735 (October 4. 1993)) the Agency
must determine whether the regulatory
action is “significant” and therefore
subject 100MB review and the
requirements of the Executive Order.
The Order defines “significant
regulatory action” as one that is likely
to result in a rule that may:
(1) Have an annual effect on the
economy of $100 million or more or
adversely affect ins material way the
economy, productivity, competition,
jobs, the environment, public health or
safety. or State, local, or tribal
governments or communities;
(2) Create a serious inconsistency or
otherwise Interfere with an action taken
or planned by another agency;
(3) Materially alter the budgetary
Impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof; or
(4) RaIse novel legal or policy issues
arising out of legal mandates, the
President’s priorities. or the principles
set forth In the Executive Order.
Pursuant to the terms of Executive
0i der 12866, It has been determined
that this rule is a “significant regulatory
action”. As such, this action was
submitted to 0MB for review. Changes
made In response to 0MB suggestions or
recommendations will be documented
in the public record.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980
and applicable EPA guIdelines revised
In 1992 require Federal agencies to
identify potentially adverse Impacts of
Federal regulations upon small antitii
Small entities include small bustnesses.
organizations, and governmental
jurisdictions. The EPA has determir’
that this regulation does not apply I
any small entities. This regulation
directly affects only Federal agencios.
Consequently, a Regulatory Flexibility
Analysis IRFA) is not required. As
required under section 605 of the
Regulatory Flexibility Act, 5 U.S.C. et
seq., I certify that this regulation does
not have a significant Impact on a
substantial number of small entities and
thereby does not require a Regulatory
Flexibility Analysis (RFA).
C Paperwork Reduction Act
The Paperwork Reduction Act (PRA)
requires that an agency prepare an
Information Collection Request (ICR) to
obtain 0MB clearance for any activity
that will involve collecting informatioii
from ten or more non-Federal
respondents. These information
re4uirements Include reporting.
monitoring, and/or recordkeeping. The
ICR for this rule includes the cost to the
States of developing and implementing
the General Conformity rule as well as
the cost of the collection burden for
private sponsors of activities that
require Federal support or approval.
The information collection
requirements in 40 CFR parts 51 an °
have not been approved by 0MB an
are not effective until 0MB approve
them. These information collection
requirements will be submilted as part
of a revised ICR to the Office of
Management and Budget (0MB) under
the Paperwork Reduction Act, 44 U.S.C.
3501 et seq. These requirements will not
be effective until 0MB approves them
and a technical amendment to that
effect Is published In the Federal
Register.
D. Federalism Implications
A federalism assessment has not been
conducted under Executive Order
12612. However, federalism effects are
considered throughout this rule (e.g..
discussions regarding State, Federal
agency, and EPA roles in General
Conformity).
List of Subjects
40 CFR Part 6
Environmental impact statements,
Foreign relations, Grant programs—.
environmental protection. Waste
treatment and disposal.
4OCFRParLs5I and 93
Environmental protection.
Administrative practice and procedi
Air pollution control, Carbon mono
Intergovernmental relations. Lead,
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Federal Register / Vol. 58.
No. 220 I Tuesday. November 30, 1993 / Rules and Regulations 63247
Nitrogen oxides. Ozone, Particulate
matter. Reporting and recordkeeping
requirements. Sulfur dioxide. Volatile
organic compounds.
Dated. November 15. 1993.
Carol M. Browner,
Admin:sfrator.
The Code of Federal Regulations, title
40. chapter 1. is amended as follows:
PART 6 .- .(AMENDEDJ
1. The authority citation for part 6 is
revised to read as follows:
Authority: 42 U.S.C. 4321 et seq. 7401—
7671q: 40 CFR part 1500.
2. Section 6.3 03 is amended by
removing and reserving paragraphs (c)
through (g) and revising paragraphs (a)
and (b) to read as follows:
§ 6.303 Air quality.
(a) The Clean Air Act, as amended in
1990, 42 U.S.C. 7476(c), requires
Federal actions to conform to any State
implementation plan approved or
promulgated under section 110 of the
Act. For EPA actions, the applicable
conformity requirements specified in 40
CFR part 51. subpart W, 40 R part 93.
euhpart B. and the applicable State
Implementation plan must be met.
(b) In addition, with regard to
wastewater treatment works subject to
review under Subpart E of this part, the
responsible official shall consider the
air poLlution control requirements
specified In section 316(b) of the Clean
Air Act, 42 U.S.C. 7616, and Agency
Implementation procedures.
(é)—(g) (Reserved)
PART 51—{AMENDED]
1. The authority citation for palt5l
continues to read as follows:
Authority: 42 U.S.C. 7401—7671q.
2. Part 51 Is amended by adding a
new subpart W to read as follows:
Subpart W—Dstermlnlng Conformtty of
General Federal Actions to Stots or Federal
ImplementatIon Plans
s .
51.850 ProhibitIon.
5 1.851 State ImplementatIon plan (SIP)
revision.
51.852 DefinItions.
51.853 ApplicabilIty.
51.854 ConformIty analysis.
51.855 Reporting requirements.
53.856 Public participation.
51157 Frequency of conformity
determination ..
SLSSI Criteria for determining conformity
olgenerel Federal actions.
57159 Procedures for conformity
determInations of general Federal
actions.
51.860 MItigation of air quality Impacts.
Subpart W—Oetermining Conformity of
General Federal Actions to State or
Federal Implementation Plans
§51.850 Prohibition.
‘(a) No department, agency or
instrumentality of the Federal
Government shall engage in, support in
any way or provide financial assistance
for, license or permit. or approve any
activity which does not conform to an
applicable implementation plan.
(b) A Federal agency must make a
determination that a Federal action
conforms to the applicable
Implementation plan in accordance
with the requirements of this subpart
before the action Is taken.
(c) Paragraph (b) of this section does
not include Federal actions whore
either:
(1) A National Environmental Policy
Act (NEPA) analysis was completed as
evidenced by a final environmental
assessment (EA), environmental impact
statement (EIS), or finding of no
significant impact (FONSI) that was
prepared prior to January 31. 1994;
(2) (1) Prior to January 31. 1994, an EA
was commenced or a contract was
awarded to develop the specific
environmental anelysis;
(II) Sufficient environmental analysis
is completed by March 15, 1994 so that
the Federal agency may determine that
the Federal action is in conformity with
the specific requirements end the
purposes of the applicable SIP pursuant
to the agency’s affirmative obligation
under section 176(c) of the Clean Air
Act (Act); and
(lii) A written determination of
conformity under section 176(c) of the
Act has been made by the Federal
agency responsible for the Federal
action by March 15, 1994.
(d) Notwithstanding any provision of
this subpart, a determination that an
action Is in conformance with the
applicable Implementation plan does
not exempt the action from any other
requirements of the applicable
Implementation plan, the NEPA. or the
Act.
151.851 State lmptem.ntatlon plan (SIP)
revision.
(a) Each State must submit to the
Environmental Protection Agency (EPA)
a revision to its applicable
Implementation plan which contains
criteria and procedures for assessing the
conformity of Federal actions to the
appLlc . ole implementation plan.
consistent with this subpart. The State
must submit the conformity provisions
withIn 12 months after November 30,
1993 or withIn 12 months of an area’s
designation to nonattainment.
whichever date is later
(b)The Federal conformity rules
under this subpart and 40 CFR part 93.
in addition to any existing applicable
State requirements. establish the
conformity criteria and procedures
necessary to meet the Act requirements
until such time as the required
conformity S W revision is approved by
EPA. A State’s conformity provisions
must contain criteria and procedures
that are no less stringent than the
requirements described In this subpart.
A State may establish more stringent
conformity criteria and procedures only
ii they apply equally to non-Federal as
well as Federal entities. Following EPA
approval of the State conformity
provisions (ore portion thereofl in a
revision to the applicable SIP, the
approved tor approved portion of the)
State criteria and procedures would
govern conformity determinations and
the Federal conformity regulations
contained in 40 CFR part 93 would
apply only for the portion. if any. of the
State’s conformity provisions that is not
approved by EPA. In addition, any
previously applicable SIP requirements
relating to conformity remain
enforceable until the State revises Its
SW to specifically remove them from
the SIP and that revision is approved by
EPA.
§51.852 DefinitIons.
Terms used but not defined in this
part shall have the meaning given them
by the Act and EPA’s regulations. (40
CFR chapter 1). In that order of priority.
Affected Fed era! land manager means
the Federal agency or the Federal.
official charged with direct
responsibility for management of an
area designated qs Class I under the Act
(42 USC 7472) that is located within
100 km of the proposed Federal action.
Applicable implementation plan or
applicable SIP means the portion (or
portions) of the SIP or most recent
revision thereof, which has been
approved under section 110 of the Act,
or promulgated under section 110(c) of
the Act (Federal implementatIon plan),
or promulgated or approved pursuant to
regulations promulgated under section
301(d) of the Act and which implements
the relevant requirements of the Act.
Area wide air quality modeling
analysis means an assessment on a scale
that includes the entire nonattainment
or maintenance area which uses an air
quality dispersion model to determine
the effects of emissions on air quality.
Cause orcontri ’ute to a new violation
means a Federal action that:
(1) Causes a new violation of a
national ambient air quality standard
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63240 Federal Register / Vol. 58,
No. 228 1 Tuesday, November 30. 1993 / Rules and Regulations
(NAAQS) at a location in a
nonattainment or maintenance area
which would otherwise not be in
violation of the standard during the
f ’ . tuse period in question if the Federal
acticn were not taken; or
(2) Contributes, in conjunction with
other reasonably foreseeable actions, to
a new violation of a NA.AQS at a
location In a nonattainment or
maintenance area in a manner that
would increase the frequency or severity
of the new violation.
Caused by. as used in tha terms
“direct emissions” and “indirect
emissions,” means emissions that
would not otherwise occur in the
absence of the Federal action.
Criteria pollutant or standard means
any pollutant for which there is
established a NAAQS at 40 CFR part 50.
Direct emissions means those
emissions of a criteria pollutant or its
precursors that are caused or initiated
by the Federal action and occur at the
same time and place as the action.
Emergency means a situation where
extremely quick action on the part of the
Federal agencies involved Is needed and
where the timing of such Federal
activities makes It Impractical to meet
the requirements of this subpart, such as
natural disasters like hurricanes or
earthquakes, civil disturbances such as
terrorist acts, and military
mobilizations.
Emissions budgets are those portions
of the applicable SIP’s projected
emissions inventories that describe the
levels of emissions (mobile, stationary,
area, etc.) that provide for meeting
reasonable further progress milestones.
attainment, and/or maintenance for any
criteria pollutant or Its precursors.
Emissions offsets, for purposes of
S 51.858, are emissions reductions
which are quantifiable, consistent with
the applicable SIP atfRinment an&
reasonable further progress
demonstrations, surplus to reductions
required by, and credited to. other
applicable SIP provisions, enforceable at
both the State and Federal levels, end
permanent within the timeframe
specified by the program.
Emissions that a Federal agency has
a continuing program responsibility for
means emissions that are specifically
caused by an agency carrying out Its
authorities, and does not include
emic. ir that occur due to subsequent
muvities. unless such activities are
required by the Federal agency. Where
an in perferming its normal -
Fo responsibilities, takes actions
itself or Imposes conditions that result
in air pollutant emissions by a non-
Federal entity taking subsequent
actions, such emissions are covered by
the meaning of a continuing program
responsibility.
EPA means the Environmental
Protection Agency.
Federal action means any activity
engaged in by a department, agency, or
instrumentality of the Federal
government, or any activity that a
department, agency or instrumentality
of the Federal government supports in
any way, provides financial assistance
for, licenses, permits. or approves, other
than activities related to transportation
plans, programs, and projects
developed, funded, or approved under
title 23 U.S.C. or the Federal Transit Act
(49 U.S.C. 1601 et seq.). Where the
Federal action Is a permit, license or
other approval for some aspect of a non-
Federal undertaking, the relevant
activity Is the part, portion, or phase or
the non-Federal undertaking that
requires the Federal permit, license, or
approval.
Federal agency means, for purposes of
this subpart, a Federal department,
agency, or instrumentality of the Federal
government.
Increase the frequency or severity of
any existing violation of any standard in
any area means to cause a
nonattainmont area to exceed a standard
more often or to cause a violation at a
greater concentration than previously
existed and/or would otherwise exist
during the future period In question, if
the project were not Implemented.
Indirect emissions means those
emissions of a criteria pollutaht or its
precursors that:
(1) Are caused by the Federal action,
but may occur later In time and/or may
be farther removed in distance from the
action Itself but are still reasonably
foreseeable; and
(2) The Federal agency can
practicably control and will maintain
control over due to a continuing
program responsibility of the Federal
agency.
Local air quality modeling analysis
means an assessment of localized
impacts on a scale smaller than the
entire nonattainment or maintenance
area, Including, for example, congested
roadway Intersections and highways or
transit terminals, which uses an air
quality dispersion model to determine
the effects of emissions on air quality.
Maintenance area means an area with
a maintenance plan approved under
section 175A of the Act.
Maintenance plan means a revision to
the applicable SIP, meeting the
requirements of section 1 75A of the Act.
Metropolitan Planning Organization
(MPO) is that organization designated as
being responsible, together with the
State. for conducting the continuing,
cooperative, and comprehensive
planning process under 23 U.S.C. 1
and 49 U.S.C. 1607.
Milestone has the meaning given i..
sections 182(g)(1) and 189(c)(1) of the —
Act.
National ambient air quality
standards (NAAQS) are those standards
established pursuant to section 109 of
the Act and Include standards for
carbon monoxide (CO), lead (Pb),
nitrogen dioxide (NO 2 ), ozone,
particulate matter (PM—jo), and sulfur
dioxide (SO 2 ).
NEPA Is the National Environmental
Policy Act of 1969, as amended (42
U.S.C. 4321 et seq).
Nonattainment Area (NAA) means an
area designated as nonattainment under
section 107 of the Act and described in
40 FR part 81.
Precurso.-s of a criteria pollutant are:
(1) For ozone, nitrogen oxides (NOr),
unless an area Is exempted from NO
requirements under section 182(f) of the
Act, and volatile organic compounds
(VOC); and
(2) For PM—la, those pollutants
described In the PM—b nonattainment
area applicable SIP as significant
contributors to the PM—b levels.
Reasonably foreseeable emissions ar
projected future Indirect emissions t 1
are identified at the time the confornl
determination Is made; the location oi’
such emissions Is known and the
emissions are quantifiable, as described
and documented by the Federal agency
based on Its own Information and after
reviewing any information presented to
the Federal agency.
Regional water and/or wastewater
projects Include construction, operation,
and maintenance of water or wastewater
conveyances, water or wastewater
treatment facilities, and water storage
reservoirs which affect a large portion of
a nonattainment or maintenance area.
Regionally significant action means a
Federal action for which the direct and
Indirect emissions of any pollutant
represent 10 percent or more of a
nonattainxnent or maintenance area’s
emissions inventory for that pollutant.
Total of direct and indirect emissions
means the sum of directand Indirect
emissions Increases and decreases
caused by the Federal action; I.e., the
“net” emissions considering all direct
and indirect emissions. The portion of
emissions which are exempt or
presumed to conform under § 5 1.853,
(c), (d), (e), or (0 are not included in Lb
“total of direct and indirect emission
The “total of direct and indirect
emissions” Indudes emissions of
criteria pollutants and emissions of
precursors of criteria pollutants.
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Federal_Register / Vol. 58,
No. 228 I Tuesday. November 30. 1993 I Rules end Regulations 63249
•51.553 A pIIcabIflty.
(a) Conformity detarminations for
Federal actions related to transportation
plans, programs, and projects
developed, funded, or approved under
title 23 U.S.C. or the Federal Transit Act
(49 U.S.C. 1601 et seq.) must meet the
procedures and criteria of 40 R part
51. subpart T, In lieu of the procedures
set forth In this subpart.
(b) For Federal actions not covered by
paragraph (a) of this section, a
conformity determination is required for
each pollutant where the total of direct
and mdlrect emissions In a
nonattainment or maintenance area.
caused by a Federal action would equal
or exceed any of the rates In paragraphs
(b)(i) or (2) of this section.
(1) For purposes of paragraph (b) of
this section. the following ratea apply in
nonattainment areas (NAAs):
Tona/
year
Ozone (YOC’s Cr NO.):
Senous NM’s ...
50
25
10
Severe NM’s ....._____. ,
Extreme NAN. ......_ ....
Omer ozone NM’s ou1sI on
Ozone PwupO.1 region .. .._
100
Marginal and moderate NM’S Uislde
an ozone franspofi regIon
VOC
50
100
NO..... .. ..
Carbon monoalde: uS NANs .... -
100
SO 2 orNO 2 :MNM’s_. . . .—...
100
PM—tO:
Moderate NAA’e ._..__..._._.._.
100
Serious NM’s .._.._..__..
70
25
Pb. All NM’s
(C) The requirements of this subpart
shall not apply to:
(a) Actions where the total of direct
and indirect emissions are below the
emissions levels specified In paragraph
lof this 3eclion
zme follo g actions which
would result Lu no emissions increase or
an increase In emissions that is clearly
de mln(mis:
(1) Judicial and legislative
proceed in s.
(ii) Continuing and recun’ing
activities such as permit renewals where
activities conducted will be similar In
scope and operation to activities
currently being conducted.
(iii) Rulemaking and policy
develojm.nt and Issuance.
(Iv) Routine maintenance and repair
activities, including repair end
maintenance of administrative sites.
roads, trails, and facilities.
(v) Civil and crlmtn*l enforcement
activities, such as Investigations, audits,
inspections, examinations.
prosecutions, and the training of law
enforcement personnel.
(vi) Administrative actions such as
personnel actions, organizational
changes, debt management or collection,
cash management, internal agency
audits, program budget proposals. and
matters relating to the administration
and collection of taxes, duties and fees.
(vii) The routine, recurring
transportation of materiel and
personneL
(viii) Routine movement of mobile
assets, such as ships and aircraft, in
home port reassignments and stations
(when no new support facilities or
personnel are required) to perform as
operational groups .ndlor for repair or
overhaul.
(ix) Maintenance dredging and debris
disposal where no new depths are
required, applicable permits are
secured, end disposal will be at an
___ approved disposal site.
lx) Actions, such as Lb. following.
with respect to existing structures,
properties, facilities and lands where
future activities conducted will be
- similar in scope end operation to
TcnsP activities currently being conducted at
year the existing structures., properties,
facilities, and land.; for example.
relocation of personnel, disposition of
100 federally ”ownsd existing structures,
properties. facilities,. and lands, rent
subsidies, operation and maintenance
cost subsidies, the exercise of
100 receivership or conservetorship
authority, assistance in purchasing
100 structures, and the production of coins
100 and currency.
,, (xl ) The granting of leases, licenses
such as for exports and trade, permits.
and easements where activities
conducted will be similar In scope and
operation to ictivities currently being
conducted.
(xii) Plannlng. .tvdies. and provision
of technical assistance.
(xiii) Routine operation of facilities.
mobile assets and equipment.
(xlv) Trensfeis of ownership.
Interests, and titles in land, facilities.
and real and personal properties,
regardless of the form or method of the
transfer.
(xv) The designation c i empowerment
zones, enterprise communilies. or
viticultural areas.
(xvi) Actions by any of the Federal
banking agencies or the Federal Reserve
Banka, induding actions regarding
charters, applications, notices, licenses,
the supervision or examination of
depository institutions or depository
institution holding companies, access to
the discount window, or the provision
of financial services to banking
organizations or to any department.
agency or instrumentality of the United
States.
(xvii) Actions by the Board of
Governors of the Federal Reserve
System or any Federal Reserve Bank to
effect monetary CT exchange rate policy
(xviii) Actions that implement a
foreign affairs function of tha United
Stales.
(xix) Actions for portions thereof)
associated with transfers of laud,
facilities, title, and real properties
through an enforceable con act or lease
agreement where the delivery of the
deed Is required to occur promptly after
a specific. reasonabla condition is me ?,
such as promptly after the land is
certified as meeting the requirements of
the Comprehensive Environmental
Response, Compensation, and Liability
Act (CERCLA), and where the Federal
agency does not retain continuing
authority to control emissions
associated with the lands, facilities,
title, or real properties.
(xx) Transfers of real property,
Including land, facilities, and related
personal property from a Federal entity
to another Federal entity and
assignments of real property, Including
land, facilities, and related personal
property from a Fbderal entity to
another Federal entity for subsequent
deeding to eligible applicants.
(xxi) Actions by the Department of the
Treasury to effect fiscal policy end to
exercise the borrowing authority of the
United States.
(3) The following actions where the
emissions are not reesonably
foreseeable:
(i) Initial Outer Continental Shelf
lease sales which are made on a broad
scale and are followed by exploration
and development plans ens proJect
level.
(ii) Electric power marketing activthes
that Involve the acquisition, sale and
trans’nlssion of electric energy.
(4j Actions which Implement.
decision to conduct or carry out a
conforming program guch as prescribed
burning actions which are consistent
(2) For purposes of paragraph (b) of
this section, the following rates apply In
maintenance areas:
Ozone (NO.), $02 Of NO AS main ’
tenance areas -
Ozone (VOC’s):
Maintenance arem frisids an
ozone transpcfl region
Maintenance areas outelds an
ozone transport region
Carbon monoxide: AS makdsnance
PM -10: All maintenance areas
Pb: AS maintenance areas
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63250 Federal Register / Vol. 58,
No. 228 / Tuesday, November 30, 1993 / Rules and Regulations
with a conforming land management
plan
(dl Notwithstanding the other
requirements of this subpart, a
conformity determination is not
required for the following Federal
actions (or portion thereof):
(1)The portion of an action that
includes major new or modified
stationary sources that require a permit
under the new source review (NSR)
program (section 173 of the Act) or the
prevention of significant deterioration
(PSD) program (title I. part C of the Act).
(2) Actions in response to.
emergencies or natural disasters such as
hurricanes, earthquakes. etc.. which are
commenced on the order of hours or
days after the emergency or disaster
and, if applicable, which meet the
requirements of paragraph (a) of this
section.
(3) Research. investigations, studies.
demonstrations, or training (other than
those exempted under paragraph (c)(2)
of this section). where no environmental
detriment is incurred and/or, the
particular action furthers air quality
research, as determined by the State
agency primarily responsible for the
applicable SIP.
(4) Alteration and additions of
existing structures as specifically
required by new or existing applicable
environmental legislation or
environmental regulations (e.g.. hush
houses for aircraft engines and
scrubbers for air emissions).
(5) Direct emissions from remedial
and removal actions carried out under
the Comprehensive Environmental
Response, Compensation and Liability
Act ( ERCLA) and associated
regulations to the extent such emissions
either comply with the substantive
requirements of the PSD/NSR
permitting program or are exempted
from other environmental regulation
under the provisions of CERCLA and
applicable regulations issued under
CERCLA.
(e) Federal actions which are part of
a continuing response to an emergency
or disaster under paragraph (d)(2) of this
section and which are to be taken more
than 6 months after the commencement
of the response to the emergency or
disaster under paragraph (d)(2) of this
section are exempt from the
requirements of this subpart only if:
(t) The Federal agency taking the
actions rn fras a written determination
that. fm a specified period not to exceed
an addifin’, l 6 months, It is Impractical
to prepaie the conformity analyses
which would otherwise be required and
the actions cannot be delayed due to
overriding concerns for public health
and welfare, national security interests
and foreign policy commitments: or
(2) For actions which are to be taken
after those actions covered by paragraph
(e)(l) of this section, the Federal agency
makes a new determination as provided
In paragraph (e)U) of this section.
(I) Notwithstanding other
requirements of this subpart, actions
specified by individual Federal agencies
that have met the criteria set forth In
either paragraph (g)(1) or (g)(2) of this
section and the procedures set forth in
paragraph (hI of this section are
presumed to conform, except as
provided in paragraph (j) of this section.
(g) The Federal agency must meet the
criteria for establishing activities that
are presumed to conform by fulfilling
the requirements set forth in either
paragraph (g)(1) or (g)(2) of this section:
(1) The Federal agency must clearly
demonstrate using methods consistent
with this subpart that the total of direct
and indirect emissions from the type of
activities which would be presumed to
conform would not:
(i) Cause or contribute to any new
violation of any standard In any area:
(ii) Interfere with provisions in the
applicable SIP for maintenance of any
standard;
(iii) Increase the frequency or severity
of any existing violation of any standard
in any area; or
(lv) Delay timely attainment of any
standard or any required interim
emission reductions or other milestones
in any area including, where applicable.
emission levels specified in the
applicable SIP for purposes of:
(A) A demonstration of reasonable
further progress;
(B) A demonstration of attainment; or
(C) A maintenance plan; or
(2) The Federal agency must provide
documentation that the total of direct
and Indirect emissions from such future
actions would be below the emission
rates for a conformity determination that
are established in paragraph (b) of this
section. based, for example. on similar
actions taken over recent years.
(h) In addition to meeting the criteria
for establishing exemptions set forth in
paragraphs (gJ(1) or (g)(2) of this section,
the following procedures must also be
complied with to presume that activities
will conform:
(lIThe Federal agency must ident1 ’
through publication in the Federal
Register its list of proposed activities
that are presumed to conform and the
basis for the presumptions:
(2) The Federal agency must notify
the appropriate EPA Regional Office(s),
State and local air quality agencies and,
where applicable, the agency designated
under section 174 of the Act and the
MPO and provide at least 30 days for
the public to comment on the tist of
proposed activities presumed to
conform;
(3) The Federal agency must
document its response to all the
comments received and make the
comments, response, and final list of
activities available to.the public upon
request; and
(4) The Federal agency must publish
the final list of such activities in the
Federal Register.
(i) Notwithstanding the other
requirements of this subpart, when the
total of direct and indirect emissions of
any pollutant from a Federal action does
not equal or exceed the rates speu fled
in paragraph (bi of this section, but
represents 10 percent or more of a
nonattainmont or maintenance area’s
total emissions of that pollutant, the
action is defined as a regionally
significant action and the requirements
of § 51.850 and § 51.855 through
5 1.860 shall apply for the Federal
action.
(j) Where an action otherwise
presumed to conform under paragraph
(U of this section Is a regionally
significant action or does not in fact
meet one of the criteria in paragraph
(gill) of this section, thataction shall
not be presumed to conform and the
requirements of § 51.850 and if 51.85
through 51.860 shall apply for the
Federal action.
(k) The provisions of this subpart
shall apply in all nonattainment and
maintenance areas.
§ 51.854 Cenferutity analysis.
Any Federal department. agency. or
instrumentality of the Federal
government taking an action subject to
this subpart must make its own
conformity determination consistent
with the requirements of this subpart. In
making its conformity determination, a
Federal agency must consider comments
from any interested parties. Where
multiple Federal agencies have
jurisdiction for various aspects of a
project, a Federal agency may choose to
adopt the analysis of another Federal
agency or develop Its own analysis in
order to make Its conforipity
determination.
• 51.855 Repoitlng requirements.
(a) A Federal agency making a
conformity determination under
§ 51.858 must provide to the appropriate
EPA Regional Office(s), State and local
air quality agencies and, where
applicable, affected Federal land
managers. the agency designated und
section 174 of the Act and the MPO a
30 day notice which describes the
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Federal Register I Vol. 56. No. 228 / Tuesday. November 30. 1993 / Rules and Regulations 63251
proposed action and the Federal
agency’s draft confonruty determination
on the action.
(b) A Federal agency must notify the
appropriate EPA Regional Office(s),
State and local air quality agendas and,
where applicable. afl cted Federal land
managers, the agency designated under
section 174 of the Clean Aix Act and the
MPO within 30 daysafter makings final
conformity determination under
551.858.
I 51.858 PublIc participation.
(a) Upon request by any person
regarding a specific Federal action, a
Federal agency must make available for
review Its draft conformity
determination under 551.858 with
supporting materials which describe the
analytical methods end conclusions
relied upon En making the applicability
analysis and draft conformity
determination.
(b) A Federal agency must make
public Its draft conformity
determination under 551.858 by placing
a notice by prominent advertisement In
a daily newspaper of general circulation
In the area affected by the action and by
providing 30 days for written public
comment prior to taking any fennel
action on th. draft determination. This
comment period may be concwrent
with any other public Involvement,
such as occws In the A process .
(c) A Federal agency must document
Its response to all the comments
received on Its draft conformity
determination under 551.858 end make
the comments end responses available.
upon request by any person regprdlng a
specific Federal action, wIthin 30 days
of the final conformity determination.
(d) A Federal agency must make
public Its final conformity
determination under 5 51.858 for a
Federal action by placing a notice by
prominent advertisement Ins daily
newspaper of general thculatfon In the
area affected by the action within 30
days of the final conformity
determination.
I stasi Frequency stconformlt
dstermlnatloas.
(a) The ccnformfty status ofsl.dersl
action automatically lapses S years from
the date a final conformity
determination Is reported under
§ 51.855. unless the Federal . rtlnn ha
been completed r a cnntinuoIas
program has bee:: commenced to
implement that Federal action within s
reasonable time.
(bI Ongoing Federal activities ate
given site showing continuous progress
are not new actions and do not require
periodic redetexmh iitWns so long as
such activities are within the scope of
the final conformity determination
reported under 551.855.
(c) Il after the conformity
determination Is made, the Federal
action Is changed so that there Is an
increase in the total of direct and
indirect emissions above the levels in
551.853(b). anew conformity
determination Is required.
*51.858 Cdt.I$.I for J.Ia . . ..bilng
conformity of general Federal actions .
(a) An action required under 531.853
to have a conformity determination for
a specific pollutant, will be determined
to conform to the applicable SIP if. for
each pollutant that exceeds the rates In
§51.853 (b ), or otherwise requires a
conformity determination due to the
total of direct and Indirect emissions
from the action, the action meets the
requirements of paragraph (c) of this
section, and meets any of the following
requirements:
(1) For any criteria pollutant, the total
of direct and Indirect emissions from
the action axe specifically Identified and
accounted fot in th. applicable SIP’s
attainment or maintenance
demonstration:
(2) For ozone or nitrogen dlwdde , the
total of direct and Indirect emissions
frnmthe action are flillyoffsetw lth ln
the same nonatt fnment or maintenance
area through a revision to the applicable
SW era timlkvly enforceable measure
that effects emission reductions so that
there Is no net increase In emissions of
thatpo llutant;
(3) For any criteria pollutant, except
ozone and nitrogen dlo dde, the total of
direct and indirect emissions from the
action meet the requirements?
(I) Specified In paragraph (b) of this
sectlon,besedonareaw ldesfrquality
modeling analysis and local air quality
modeling analysis; or
lii) Meet the requirements of
paragraph (eX5) of this section and, for
local air quality modeling analysis, the
requirement of paragraph (bi of this
section;
(4) For Coot PM—tO-—
(I) Wher, the Stats agency primarily
responsible for th. applicable SIP
determines that an axeawid. air quality
modeling analysis Is net needed the
total of direct and indirect emissions
from th. action meet lb. requirements
specified In paragraph N) of this
section, based on local elrquallty
modeling analysis or
(II) Where the State agency primarily
responsIble foi the applicable SIP
determines that an areewids air quality
modeling analysis is appropriate and
thatalocal.irqualftymodelingan*lyds
Is not needed, the total of direct and
indirect emissions from the action meet
the requirements specified in paragraph
(b) of this section. based on areawide
modeling, or meet the requirements of
paragraph (a)(5) of this section: or
(5) For ozone or nitrogen dioxide. and
for purposes of paragraphs Ial(3) iiJ and
(a)(4HiI) of this section, each portion of
the action or the action as a whole meets
any of the following requirements:
(I) Where EPA has approved a
revision to an area’s attainment or
maintenance demonstration after 1990
end the State makes a determination as
provided In paragraph (aK5Xi)(A) of this
section or where the State makes a
commitment as provided in paragraph
(a)(5)(i)(Bl of this section:
(A) The total of direct and indirect
emissions from the action (or portion
thereof) is determined and documented
by the State agency primarily
responsible for the applicable SIP to
result Ins level of emissions which,
together with all other emissions In the
nonatta 4 nment (or maintenance) area,
would not exceed th. emissions budgets
specified In the aiplicable SW;
(B) The total otdizectasxi Indirect
emissions from the action (or portion
thereof) Is determined by the State
agency. responsible for, the applicable
SIP to result In a level of emissions
which, together with all other emissions
In lb. nonatIaInment (or maintenance)
ares, would exceed an emissions budget
specified In the applicable SIP and the
State Governor or the Governor’s -
designee for SIP actions makes a written
commitment to EPA which Includes the
following:
(1) A specific schedule for adoption
and submittal of a revision to the SIP
which would achieve the needed
emission reductions prior to the time
e” ons from the Federal action
would occuz
(2) Itt Hflcaticn of specific measures
for Incorporation Into the SIP which
would result In. level of emissions
which, together with eli other emissions
In the nooatialnment or maintenance
area, would not exceed any emissions
budget specified In the applicable SW:
(3) A demonstration that all existing
applicable SIP requirements are being
Implemented In the area for the
polbthtnM affected by the Federal
action, and that local authority to
Implement additional requirements has
been fully pursued;
(4) A determination that the
responsible Federal agencies have
required all reasonable mitigation
measures associated with their action;
and
(SI Written documentation Including
all air quality analyses supporting the
conformity determination;
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63252 Federal Register / Vol. 58, No. 228 / Tuesday, November 30, 1993 / Rules and Regulations
(C) Where a Federal agency made a
conformity determination based on a
State commitment under paragraph
(a)(5)(i)(B) of this section, such a State
commitment is automatically deemed a
call for a SIP revision by EPA under
section 110(k)(5) of the Act, effective on
the date of the Federal conformity
determination and requiring response
within 18 months or any shorter time
within which the State commits to
revise the applicable SIP;
(ii) The action (or portion thereof). as
determined by the MPO, is specifically
included in a current transportation
plan and transportation Improvement
program which have been found to -
conform to the applicable SIP under 40
CFR part 51, subpart T, or 40 CFR part
93. subpait A;
(iii) The action (or portion thereof)
fully offsets its emissions within the
same nonattainment or maintenance
area through a revision to the applicable
- SIP or an equally enforceable measure
that effects emission reductions equal to
or greater than the total of direct and
indirect emissions from the action so
that there is no net increase in
emissions of that pollutant;
(iv) Where EPAhas not approved a
revision to the relevant SIP att nment
or maintenance demonstration since
1990, the total of direct and indirect
emissions from the action for the future
years (described In § 51.859(d)) do not
increase emissions with respect to the
baseline emissions:
(A) The baseline emissions reflect the
historical activity levels that occurred in
the geographic area affected by the
proposed Federal action during:
(1) Calendar year 1990;
(2) The calendar year that is the basis
for the classification (or, where the
classification is based on multiple years,
the most representative year), If.
classification Is promulgated in 40 CFR
part 81; or
(3) The year of the baseline inventory
in the PM—b applicable SIP:
(B) The baseline emissions are the
total of direct and Indirect emissions
calculated for the future years
(described in § 51.859(d)) using the
historic activity levels (described In
paragraph (a)(5)(iv)(A) of this section)
and appropriate emission factors for the
future years; or
(v) Where the action involves regional
water and/or wastewater projects, such
projects are sized to meet only the needs
of population projections that are in the
applicable SIP.
(bJ The areawide and/or local air
quality modeling analyses must
(1) Meattha requirements inS5l.859;
and
(2) Show that the action doe. not:
(i) Cause or contribute to any new
violation of any standard In any area; or
(ii) Increase the frequency or severity
of any existing violation of any standard
in any area.
(C) Notwithstanding any other
requirements of this section, an action
subject to this subpart may not be
determined to conform to the applicable
SIP unless the total of direct and
indirect emissions from the action is in
compliance or consistent with all
relevant requirements and milestones
contained in the applicable Sn,, such as
elements identified as part of the
reasonable further progress schedules,
assumptions specified in the attainment
or maintenance demonstration,
prohibitions. numerical emission limits,
and work practice requirements.
(d) Any analyses required under this
section must be completed, and any
mitigation requirements necessary for a
finding of conformity must be identified
before the determination of conformity
Is made.
551.859 Procedures conformity
determinatIons of general Federal actions.
(a) The analyses required under this
subpart must be based on the latest
plpnnIng assumption..
(1) AU planning assumptions must be
derived from the estimates of
population, employment, travel, and
congestion most recently approved by
the MPO, or other agency authorized to
make such estimates, where available.
(2) Any revisions to these estimates
used as part of the conformity
determination, including projected
shifts In geographic location or level of
population, employment, travel, and
congestion, must be approved by the
MPO or other agency authorized to
make such estimates for the urban area.
(b) The analyses required under this
subpait must be based on the latest and
most accurate emission estimation
techniques available as described below,
unless such techniques are
inappropriate. U such techniques are
inappropriate and written approval of
the EPA Regional Administrator Is
obtained for any modification hr
substitution, they may be modified or
another technique substituted on a case-
by-case basis or, where appropriate, on
a generic basis for a specific Federal
agency program.
(1) For motor vehicle emissions, the
most current version of the motor
vehicle emissions model specified by
EPA and available for use in the
preparation or revision of SIPs in that
State must be used for the conformity
analysis as specified In paragraphs (b)(1)
(1) and (II) of this section:
(i) The EPA must publish in the
Federal Register a notice of availability
of any new motor vehicle emissions
model; and
(ii) A grace period of three months
shall apply during which the motor
vehicle emissions model previously
specified by EPA as the most current
version may be used. Conformity
analyses for which the analysis was
begun during the grace period or no
more than 3 years before the Federal
Register notice of availability of the
latest emission model may continue to
use the previous version of the model
specified by EPA.
(2) For non-motor vehicle sources.
including stationary and area source
emissions, the latest emission factors
specified by EPA In the “Compilation of
Air Pollutant Emission Factors (A?—
42)”i must be used for the conformity
analysis unless more accurate emission
data are available, such as actual stack
test data from stationary sources which
are part of the conformity analysis.
(c) The air quality modeling analyses
required under this subpart must be
based on the applicable air quality
models, data bases, and other
requirements specified In the most
recent version of the “Guideline on Air
Quality Models (Revised)” (1988),
Including supplements (EPA
publication no. 450/2—78—027R) 2
unless:
(1) The guideline techniques are
Inappropriate, in w hIch case the model
may be modified or another model
substituted on a case-by-case basis or,
where appropriate, on a generic basis for
a specific Federal agency program; and
(2) WrItten approval of the EPA
Regional Administrator is obtained for
any modification or substitution.
(d) The analyses required under this
subpart; except S 51.858(a)(1), must be
based on the total of direct and Indirect
emissions from the action and must
reflect emission scenarios that are
expected to occur under each of the
following cases:
(1) The Act mandated attpinment year
or ., if applicable, the farthest year for
which emissions are projected in the
maintenance plan;
(2) The year during which the total of
direct and Indirect emissions from the
action is expected to be the greatest on
an annual basis; and
(3) any year for which the applicable
SIP specifies an emissions budget.
tCoploi ay in obtained from the TeChnICal
Suppoil Division of OAQJS, ‘A. MD-14. Rese4
Triangle park, NC 27711.
‘See footnote lit S 51.859(bX2).
/
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Federal Register / Vol. 58.
No. 228 / Tuesday November 30, 1993 I Rules and Regulations 63253
451.860 MitIgation of air quality Impacts.
(a) Any measures that are intended to
mitigate air quality Impacts must be
identified and the process for
implementation and enforcement of
such measures must be described,
including an implementation schedule
containing explicit timelines for
implementation.
(b) Prior to determining that a Federal
action is in conformity, the Federal
agency making the conformity
determination must obtain written
commitments from the appropriate
persons or agencies to implement any
mitigation measures which are
identified as conditions for making
conformity determinations.
(c) Persons or agencies voluntarily
committing to mitigation measures to
facilitate positive conformity
determinations must comply with the
obligations of such commitments.
(di In instances where the Federal
agency is licensing, permitting or
otherwise approving the action of
another governmental or private entity,
approval by the Federal agency must be
conditioned on the other entity meeting
the mitigation measures set forth In the
conformity determination.
(e) When necessary because of
changed circumstances, mitigation
measures may be modified so long as
the new mitigation measures continue
to support the conformity
determination. Any proposed change In
the mitigation measures is subject to the
reporting requirements of S 5 1.856 and
the public participation requirements of
§ 51.857.
(I) The implementation plan revision
required in § 51.851 shall provide that
written commitments to mitigation
measures must be obtained prior to a
positive conformity determination and
that such commitments must be
fulfilled.
(g) After a State revises its SIP to
adopt its general conformity rules and
EPA approves that SIP revision, any
agreements, including mitigation
measures, necessary fore conformity
determination will be both State and
federally enforceable. Enforceability
through the applicable SIP will apply to
all persons who agree to mitigate direct
and indirect emissions associated with
a Federal action for a conformity
determination.
PART .-OETERMINING
CONFORMITY OF FEDERAL ACTIONS
TO STATE OR FEDERAL
WL ENTAT1ON PLANS
1. The authority citation for part 93
continues to read as follows:
Autherity 42 U.S.C. 7 4O1—7 6 71p.
2. Part 93 is amended by adding a
new subpart B to read as follows:
Subpart B—Ostarmlning Conformity of
General Federal ActIons to Stats or Federal
lmplsmuntatlon Plans
Sic.
93.150 Prohibition.
93.151 State implementation plan (SIP)
revision.
93.152 Definitions.
93.153 ApplIcability.
93.154 ConfOrmity analysis.
93.155 ReportIng requirements.
93.156 Public participation.
93.157 Frequency of conformity
determinat lone.
93.158 Criteria for determining conformity
of general Federal actions.
93 159 Procedures for conformity
determinations of general Federal
actions.
93.160 Mitigation of air quality impacts.
Subpart B.-Determinlng Conformity of
General Federal Actions to State or
Federal Implementation Plans
493.150 ProhibitIon.
(a) No department, agency or
instrumentality of the Federal
Government shall engage in, support in
any way or provide financial assistance
for, license or permit, or approve any
activity which does not conform to an
applicable implementation plan.
(b) A Federal agency must make a
determination that a Federal action
conforms to the applicable
Implementation plan In accordance
with the requirement&of this subpart
before the action Is taken.
(C) Paragraph (b) of this section does
not Include Federal actions where:
(1) A National Environmental Policy
Act (NEPA) analysis was completed as
evidenced by a final environmental
assessment (EA), environmental impact
statement (EIS), or finding of no
significant impact (FONSI) that was
prepared prior to January 31, 1994; or
(2) (I) Prior to December 30, 1993, an
environmental analysis was commenced
or a contract was awarded to develop
the specific environmental analysis;
(ii ) Sufficient environmental analysis
is completed by March 15, 1994 so that
the Federal agency may determine that
the Federal action is in conformity with
the specific requirements and the
purposes of the applicable SIP pursuant
to the agency’s affirmative obligation
wider section 176(c) of the Clean Air
Act (Act); and
(iii) A written determination of
conformity under section 176(c) of the
Act has been made by the Federal
agency responsible for the Federal
action by March 15, 1994.
(d) Notwithstanding any provision of
this subpart, a determination that an
action is in conformance with the
applicable implementation plan does
not exempt the action from any other
requirements of the applicable
implementation plan, the National
Environmental Policy Act (NEPA). or
the Clean Air Act (Act).
493.151 Stats Implementation plan (SIP)
revision.
The Federal conformity rules under
this subpart, in addition to any existing
applicable State requirements, establish
the conformity criteria and procedures
necessary to meet the Act requirements
until such time as the required -
conformity SIP revision is approved by
EPA. A State’s conformity provisions
must contain criteria and procedures
that are no less stringent than the
requirement! described in this subpart
A State may establish more stringent
conformity criteria and procedures only
if they apply equally to nonfederal as
well as Federal entities. Following EPA
approval of the State conformity
provisions (or a portion thereofl in a
revision to the applicable SIP, the
approved (or approved portion of the)
State criteria and procedures would
govern conformity determinations and
the Federal conformity regulations
contained in this part would apply only
for the portion, if any, of the State’s
conformity provisions that is not
approved by EPA. In addition, any
previously applicable SIP requirement
relating to conformity remain
enforceable until the State revises its
SIP to specifically remove them from
the SIP and that revision is approved by
EPA.
• 93.152 Dsflnitlons.
Terms used but not defined in this
part shall have the meaning given them
by the Act and EPA’s regulations (40
CFR chapter I), in that order of priority.
Affected Federol land manager means
the Federal agency or the Federal
official charged with direct
responsibility for management of an
area designated as Class I under the Act
(42 U.S.C. 7472) that Is located within
100 km of the proposed Federal action.
Applicable implementation plan or
applicable SIP means the portion (or
portions) of the SIP or most recent
revision thereof, which has been
approved under section 110 of the Act,
or promulgated under section 110(c) of
the Act (Federal Implementation plan).
or promulgated or approved pursuant to
regulaLic ns promulgated under section
301(d) of the Act and which implements
the relevant requIrements of the Act.
Area wide air quality modeling
analysis means an assessment on a scale
that Includes the entire nonattainment
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63254 Federal Register / Vol. 58. No. 228 / Tuesday. November 30. 1993 / Rules and Regulations
or maintenance ares which uses an sir
quality dispersion model to determine
the effects of emissions on air quality.
Cause or contribute to a new violation
means a Federal action that:
(1) Causes a new violation of a
national ambient air quality standard
(NAAQS) at a location in a
nonattainment or maintenance ares
which would otherwise not be in
violation of the standard during the
future period in question if the Federal
action were not taken; or
(21 Contributes, in conjunction with
other reasonably foreseeable actiops. to
a new violation of a NAAQS at a
location in a nonattainnient or
maintenance area in a manner that
would increase the frequency or severity
of the new violation.
Caused by, as used in the terms
“direct emissions” and “indirect
emissions,” means emissions that
would not otherwise occur in the
absence of the Federal action.
Criteria pollutant or standard means.
any pollutant for which there is
established a NAAQS at 40 R par 150
Direct emissions means those
emissions of a criteria pollutant or its
precursors that are caused or Initiated
by the Federal action and occur at the
same time and place as the action.
Enietiency means a situation where
extremely quick action on the part of the
Federal agencies involved Is needed and
where the timing of such Federal
activities makes it Impractical to meet
the requirements of this subpart, such as
natural disasters Like hurricanes or
earthquakes, civil disturbances such as
terrorist acts and military mobilizations.
Emissions budgets are those portions
of the applicable SIP’. projected
emission Inventories that describ, the
levels of emissions (mobile, stationary.
area, etc.) that provide for meeting
reasonable further progress mllsstcnee
attainment. and/or maintenance for any
criteria pollutant or Its precursors.
Emissions offsets, for purposes of
§ 93.158, are emissions reductions
which are quantifiable, ve”istent with
the appLicable SIP at(Alnment end
reasonable further progress
demonstrations, surplus to reductions
required by. and credited to, other
applicable SIP provisions, enforceable at
both the State and Federal levels, and
permanent within the timeframs
specified by the proaram..
that a Fed c m l agency hat
a “-““g program responsibility for
that are specifically
ceassedbyanagencycazrytngoistlts
“ I’. -rlI and does not Include
ernissl that oocw’ due to subsequent
activities, unless such activities are
required by the Federal agency . Wba
an agency. In performing its normal
program responsibilities. t4es actions
itself or imposes conditions that result
in air pollutant emissions by a non-
Federal entity taking subsequent
actions, such emissions are covered by
the meaning of a continuing program
responsibility.
EPA means the Environmental
Protection Agency.
Federal action means any activity
engaged In by a department, agency. or
instrumentality of the Federal
government, or any activity that a
department. agency or instrumentality
of the Federal government supports In
any way, provides financial assistance
for, licenses, permits, or approves, other
than activities related to transportation
plans. programs. and projects
developed, funded, or approved under
title 23 U.S.C. or the Federal Transit Act
(49 U.S.C 1801 at seq.). Where the
Federal action isa permit, license, or
other approval for seine aspect of. non-
Federal undertaking, the relevant
activity is the part. portion, or phase of
the non-Federal undertaking that
requires the Federal permit, license, or
approval.
Federi,J agency means, for purposes of
this subpart.. Federal department.
agency, or Instrumentality of the Federal
government.
Increase the frequency or severity of
any existing violation of any standard in
any area means to cause a
nonattainment area to exceed a standard
more often orto cause a violation at a
greater concentration than previouaI ’
existed andfor would otharwi as exist
during the future period to question. If
the project were not implemented.
Indirect emissions means those
emissions ala criteria pollutant or Its
precursors that:
(1) Are caused by the Federal action,
but may occur later In Urn, and/or may
be fUrther removed In distance from the
action Itself but are still reasonably
foreseeable: and
(2) The Federal agency can
practicably control and will maintain
control over due to a continuing
program responsibility of the Federal
Local air quality modeling analysis
“ sns an assessment of localized
Impacts on a scale smaller than the
entire nonais nment or ma1nte nc
area, including, for example. congested
roadway intersect Ions and highways or
tzanaitte rn t lnals,whlchuaeun air
quality dlspessloa model to determine
the effects of emiuona on air quality.
Maintenance area means an ares with
a maintenance plan approved under
section 175A. of the Act.
Maintenance plan means a revision to
the applicable SIP, meeting the
requirements of section 175A of the Al
Metropolitan Planning Organization
(MPO) is that organization designated as
being responsible, together with the
State, for conducting the continuing.
cooperative, and comprehensive
planning process under 23 U.S.C. 134
and 49 U.&C. 1607.
Milestone has the meaning given in
sections 182(gJ(1) and 189(cJ(i) of the
Act.
National ambient air quality
standards (NAAQSI are those standards
established pursuant to section 109 of
the Act and include standards for
carbon monoxide (CO), lead (Pb),
nitrogen dioxide (NO 2 ]. ozone.
particulate matter (PM—1OJ, and sulfur
dioxide (S0 2 J.
NEPA Is the National Environmental
Policy Act of 1969, as amended (42
U.S.C. 4321 at seq.).
Nonattainment area means en area
designated as nonattainment under
section 107 of the Act and described in
40 G’R part 81.
Precursors of a criteria pollutant are:
(1) For ozone, nitrogen oxides (NOx).
unless an area Is exempted from NOx
requirements tinder sectloa.182(U of the
Act, and volatile organic compounds
(VOC); and
(2) For PM—tO, those pollutants
described In the PM-to nonattainment
area applicable SIP as significant
contributors to the PM-tO levels.
Reasonably foresew.ibIe emissions are
projected future indirect emissions that
are Identified at the time the conformity
determination Is made; the location of
such emissions Is known and the
emissions are quantifiable, as described
and documented by the Federal agency
based on Its own Information and after
reviewing any lolbimatlon presented to
the Federal agency.
Regional water and/or wastewater
projects Include construction, operation.
and maintenance atwater or wastewater
conveyances, water or wastewater
treatment facilities, and water storage
reservoiri which affects large portion of
a nonaltafnment or maintenance area.
Regionally sigaificant action means a
Federal action far which th. direct and
Indirect emissions of any pollutant
represent 10 percent or more of a
nonattalnment or maintenance area’s
emission Inventory for that pollutant.
Total of direct and indi rect emissions
_____ the sum of direct. and Indirect
emissions increases and decreases
causedbyth.Fede salecftt nLe.,the
“net” emissions considering all direct
and Indirect emissions, The portion ol
emissions which em .wmpt or
presumed ta conform uni4 93.153 (c),
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Federal Register / Vol. 58,
No. 228 / Tuesday, November 30, 1993 / Rules and Regulations 63255
Cd). (e), or (I) are not included in the
“total of direct and Indirect emissions.”
The “total of direct and Indirect
emissions” includes emissions of
criteria pollutants and emissions of
precursors of criteria pollutants.
093.153 ApplIcability.
(a) Conformity determination, for
Federal actions related to transportation
plans. programs, and projects
developed, funded, or approved under
title 23 U.s.c. or the Federal Transit Act
(49 U.S.C. 1601 et seq.) must meet the
procedures and criteria of 40 CFR past
51, subpart T, In lieu of the procedures
set forth In this subpart.
(b) For Federal actions not covered by
paragraph (a) of this section, a
conformity determination Is required for
each pollutant where the total of direct
and indirect eñ issions in a
nonattainment or maintenance area
caused by a Federal action would equal
or exceed any of the rates In paragraphs
(b)(i) or (2) of th.is section.
(1) For purposes of paragraph (b) of
this section, the following rates apply In
nonattainment areas (NAA’s):
Ozone (VOC’s or NOxJ:
Sedous NM’s ..
Severe NM’s - ..._
Extreme NM’s
Other ozone NM’s outside an
ozone transpoil region
Marginal and moderate NM’s b’
side an ozone Panspoit region:.
VOC .. ...... -,.-
NO .. .....
Caibon monoxide:
All NAA’e .....
SO 2 or NO 2 :
NI NM’s .. --..
PM—1O:
Moderate NM’s ..
Satlous NAA’s ..
Cc) The requirements of this subpart
shall not apply to the following Federal
actions:
(1) Actions where the total of direct
and Indirect emissions are below the
emissions levels sp ifled In paragraph
(b) of this section.
(2) ActIons which would result in no
emissions increase or en increase in
emissions that is clearly de minimis:
(i) Judicial and legislative
proceedings.
(Ii) Continuing and recurring
activities such as permit renewals where
activities conducted will be similar in
scope and o eraUon to activities
currently being conducted.
(iii) Rulemaking and policy
development and Issuance.
(iv) Routine maintenance and repair
activities, Induding repair and
maintenance of administrative sites,
roads, trails, and facilities.
(v) Civil and criminal enforcement
activities, such as investigations, audits,
inspections, examinations,
prosecutions, and the training of law
enforcement personnel.
(vi) Administrative actions such as
nnnnanai ainn n,.,.i..a•Ianal
Tona/ aanges, debt managment or collection,
‘ cash management. internal agency
audits, program budget proposals, and
so matters relating to the administration
25 and collection of taxes, duties and fees.
10 (vii) The routine, recurring
transportation of materiel and
100 personnel.
(viii) Routine movement of mobile
assets,suchasshlpsandalrcraft,in
home port reassignments and stations
(when no new support facilities or
100 personnel are required) to perform as
operational groups and/or for repair or
100 overhaul.
( lx) Maintenance dredging and debris
disposal where no new depths are
required, applicable permits are
seured,anddlsposalwiilbeatan
approved dispose! site.
(x) Actions, such as the following,
with respect to existing structures,
properties, facilities and lands where
___ future activities conducted will be
TO III similar in scope and operation to
year activities currently being conducted at
the existing structures, properties,
facilities, and lands: for example,
100 relocation of personnel, disposition of
federally-owned existing structures,
properties. lacilities, and lands, rent
subsidies, operation and maintenance
too cost subsidies, the exercise of
eceivorshIp or conservatorshlp
100 authority, assistance in purchasing
structures, and the production of coIns
100 and currency.
(xi) The granting of leases, licenses
such as for exports and trade, permits,
and easements where activities
conducted will be similar in scope and
operation to activities currently being
conducted.
(xii) Planning, studies, and provision
of technical assistance.
(xiii) Routine operation of facilities,
mobile assets and equipment.
(xiv) Transfers of ownership,
interests, and titles in land, facilities,
and real and personal properties,
regardless of the form or method of the
transfer.
(xv) The designation of empowerment
zones, enterprise communities, or
viticultural areas. -
(xvi) Actions by any of the Federal
banking agencies or the Federal Reserve
Banks, including actions regarding
charters, applications, notices, licenses.
the supervision or examination of
depository institutions or depository
institution holding companies, access to
the discount window, or the provision
of financial services to banking
organizations or to any department,
agency or instrumentality of the United
States.
(xvii) Actions by the Board of
Governors of the Federal Reserve
System or any Federa’ Reserve Bank
necessary to effect monetary or
exchange rate policy.
(xviii) Actions that Implement a
foreign affairs function of the United
States.
(xix) Actions (or portions thereof)
associated with transfers of land,
facilities, title, and real properties
through an enforceable contract or lease
agreement where the delivery of the
deed is required to occur promptly after
a specific, reasonable condition is met,
such as promptly after the land is
certified as meeting the requirements of
CERCLA. and where the Federal agency
does not retain continuing authority to
control emissions associated with the
lands, facilities, title, or real properties.
( oc) Transfers of real property,
including land, facilities, and related
personal property from a Federal entity
to another Federal entity and
assignments of real property, including
land, facilities, and related personal
property from a Federal entity to
another Federal entity for subsequent
deeding to eligible applicants.
(‘cd) Actions by the Department of the
Treasury to effect fiscal policy and to
exercise the borrowing authority of the
United States.
(3) Actions where the emissions are
not reasonably foreseeable, such as the
following:
(i) Initial Outer Continental Shelf
lease sales which are made on a broad
scale and are followed by exploration
Pb:
NI NM’.
(2) For purposes of paragraph (b) of
this section, the following rates apply In
maintenance areas:
Ozone (NQxJ, SO2 or NO
All Maintenance Areas
Ozone (VOC’s):
Maintenance areas inside en
ozone transport region -
ItsInter ics areas outside an
ozone transport regibn -
Carbon mono2,de:
M M. 1enance Areas ...
PM-10
NI Maintenance Areas
Pb:
NI Maintenance Areas -
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63256 Federal Register I Vol. 58.
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and development plans on a project
level.
(ii) Electric power marketing activities
that involve the acquisition. sale and
transmission of ele ic energy.
(4) Actions which implement a
decision to conduct or carry out a
conforming program such as prescribed
burning actions which are consistent
with s conforming land management
plan.
(dl Notwithstanding the other
requirements of this subpart. a
conformity determination Is not
required for the following Federal
actions (or portion thereof):
(1) The portion of an action that
includes major new or modified
stationary sources that require a permit
under the new seurce review (NSR)
program (section 173 of theAct) or the
prevention of significant deterioration
program (title!. part C of the Act).
(2) Actions in response to
emergencies or natural disasters such as
hurricanes, earthquakes. etc.. which are
commenced on the order of hours or
days after the emergency or disaster
and, If applicable, which meet the
requirements of paragraph (e) of this
section.
(3) Research. Investigations, studies,
demonstrations, or training (other than
those exempted under paragraph (c)(2)
of this section), where no environmental
detriment Is Incurred end/or, the
particular action furthers air quality
research as determined by the State
agency primarily responsible for the
applicable SIP;
(4 Alteration and additions of
existing structures as specifically
required by new or existing applicable
environmental legislation or
environmental regulations (e.g., hush
houses for alraaft engines and
scrubbers for air emissions).
(5) Direct emissions from remedial
and removal actions carried out under
the Comprehensive Environmental
Response. Compensation and Liability
Act and associated regulation, to the
extent such emissions either comply
with the substantive requirements of the
PSDINSR permitting program or are
exempted from other environmental
regulation under the provisions of
CERCLA and applicable regulations
issued under CERCLA.
(eJ Federal actions which are part of
a continuing response to an emergency
or disaster under paragraph (d)(2) of this
section and which are to be taken more
than 6 months after the commencement
of the response to the emergency or
disaster under paragraph (d)(2) of this
section are exempt from the
requirements of this subpart only lf
(1) The Federal agency taking the
actions makes a written determination
that, for a specified period not to e xceed
an additional 6 months, it Is impractical
to prepare the conformity analyses
which would otheru e be required and
the actions cannot be delayed due to
overriding concerns for public health
and welfare, national security interests
and foreign policy commi nents; or
(2) For actions which are to be taken
after those actions covered by paragraph
(e)(1) of this section, the Federal agency
makes a new determination as provided
in paragraph (el(S) of this section.
(I) Notwithstanding other
requirements of this subpart. actions
specified by individual Federal agencies
that have met the criteria set forth in
either paragraph (81(1) 0? (&(2) of this
section and the procedures sot forth In
paragraph (hi of this section are
presumed to conform, except as
provided In paragraph Ii ) of this section.
(g) The Federal agency must meet the
criteria for establishing activities that
are presumed to conform by fulfilling
the requirements set forth In either
paragraph (g)(1) or (g)(2) of this section:
(i}Th. Federal agency must clearly
demonstrate using methoda consistent
with this subpart that the total of direct
andindliectem lssfons from thetypeof
activities which would be presumed to
conform would not:
(I) Cause or contribute to any new
violation of any standard In any area;
(II) Interfere with provisions In the
applicable S W for maintenance of any
standard;
(ill) Increas, the frequency or I v r1ty
of any misting violation of any standard
In any area; or
(fr I Delay timely Iniu ,it of any
standard or any required interim
emI.,fon reductions or other milestones
in any area Including, where applicable,
emission levels specified in the
applicable SiP for purposes of
(A) A demonstration of reasonable
further progress ;
(B) A demonstration of attainment, or
(C) A maintenance plan; or
(2) The Federal agency must provide
documentation that the total of direct
and Indirect emissions from such future
actions would be below the emission
rates for a conformity determination that
are established In paragraph (b) of this
section, based, for example, on similar
actions taken over recent yeari.
(hI In addition to meeting the criteria
for establishing exemptions set forth In
paragraphs (g)(1) or (g)(2) of this section,
the following procedures must also be
complied with to presume that activities
will conform:
(1)The Federal agency must identify
through pubIh tIt n In the Federal
Regist r its list of proposed activities
that ore presumed to conform and the
basis for the presumptions;
(2) The Federal agency must notify
the appropriate EPA Regional OfficeCs).
State and local air quality agencies and.
where applicable, the agency designated
under section 174 of the Act and the
MPO and provide at least 30 days for
the public to comment on the list of
proposed activities presumed to
conform;
(3) The Federal agency must
document Its response to all the
comments received and make the
comments. response. and final list of
activities available to the public upon
request; and
(4) The Federal agency must publish
the final list of such activities in the
Federal Register.
(I) Notwithstanding the other
requirements of this subpart. when the
total of direct and Indirect emissions of
any pollutant from a Federal action does
not equal or exceed the rates specified
in paragraph (b) of this section. but
represents 10 percent or moss of $
nonatthI ment or maintenance area’s
total emissions of that pollutant, the
action Is defined as a regionally
significant action and the requirements
of 593.150 and §593.155 through
93.160 shall apply for the Federal
action.
(j) Where an action otherwise
presumed to conform under paragraph
(I) of this section Is a regionally
significant action or does not In fact
meet one of the criteria In paragraph
(g)(1) of this section, that action shall
not be presumed to conform and the
requirements of 593.150 and 5593.155
through 93.160 shall apply for the
Federal action.
(k) The provisions of this subpart
shall apply In all nonattainment and
maintenance areas.
5 3.154 Cealcimly analysis.
Any Federal department, agency, or
Instrumentality of the Federal
government taking an action subject to
this subpart must make Its own
conformity determination consistent
with the requirements of this subpart. In
making Its conformity determination, a
Federal agency must consider comments
from any interested parties. Where
multiple Federal agencies have
jurisdiction for various aspects of a
project, a Federal agency may choose to
adopt the analysis of another Federal
agency or develop Its own analysis In
order to make It. conformity
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Federal Register I Vol. 58, No. 228 / Tuesday. November 30. 1993 / Rules and Regulations 63257
*93.155 Rsivrthiq r.quiremsn .
(a) A Federal agency making a
conform fly determination under
§93.158 must provide tothe appropriate
EPA Regional Office(s). State and local
air quality agencies and, where
applicable, affected Federal land
managers, the agency designated under
section 174 of the Act and the MPOa
30 day notice which describes the
proposed action and the Federal
agency’s draft conformity determination
on the action.
(b) A Federal agency must notify the
appropriate EPA Regional Office(s).
State and local air quality agencies and,
where applicable, affected Federal land
managers. the agency designated under
section 174 of the Clean Air Act and the
MPO within 30 days after making a final
conformity determination under
§ 93.158.
* 93.156 Public priclp.tion.
(a) Upon request by any person
regarding a specific Federal action, a
Federal agency must make available for
review Its draft conformity
determination under § 93.158 with
supporting materials which describe the
analytical methods and conclusions
relied upon in making the applicability
analysis and draft conformity
determination.
(b) A Federal agency must make
public its draft conformity
determination under § 93.158 by placing
a notice by prominent advertisement In
a daily newspaper of general circulation
in the area affected by the action and by
provIding 30 days for written public
comment prior to taking any formal
action on the draft determination. This
comment period may be concurrent
with any other public Involvement,
such as Qccurs in the NEPA process.
(c) A Federal agency must document
its response to all the comments
received on its draft conformity
determination under § 93.158 and make
the comments and responses available,
upon request by any person regarding a
specific Federal action, within 30 days
of the final conformity determination.
(d) A Federal agency must make
public its final conformity
determination under §93.158 fore
Federal action by placing a notice by
prominent advertisement in a daily
newspaper of general circulation In the
area affected by the actiOn within 30
lays of the final conformity
determination.
193157 Frequency Of canformity
ds 5ermfnstlons.
(a) The conformity status of a Federal
action automatically laps.. 5 years from
the date a final conformity
determination is reported under
§ 93.155. unless the Federal action has
been completed or a continuous
program has been commenced to
implement that Federal action within a
reasonable time.
(b) Ongoing Federal activities at a
given site showing continuous progress
are not new actions and do not require
periodic redeterminations so long as
such activities are within the scope of
the final conformity determination
reported under § 93.155.
(C) If, after the conformity
determination is made, the Federal
action is changed so that there is an
Increase in the total of direct and
indirect emissions, above the levels in
§ 93.153(b). a new conformity
determination is required.
*93.158 Crftert Vet d. .twnlnlng
conformity Of general Federal sctioea .
(a) An action required under §93.153
to have a conformity determination for
a specific pollutant, will be datermined
to conform to the applicable SIP if. for
each pollutant that exceeds the rates in
§ 93.153(b), or otherwise requires a
conformity deterrainstion due to the
total o direct end Indirect emissions
from the action, the action meets the
requirements of paragraph (c) of this
section. and meets any of the following
requirements:
(1) For any criteria pollutant, the total
of direct and indirect emissions from
the action are speci.ficaUy Identified and
accounted for in the applicable SIP’s
attAinment or maintenance
demonstration;
(2) For ozone or nitrogen dioxide, the
lotal of direct and indirect emissions
from the action are fully offset within
the same nonattalnment or maintenance
area through a revision to the applicable
SW ore similarly enforceable measure
that effects emission reductions so that
there is no net Increase In emissions of
that pollutant:
(3) For any criteria pollutant, except
ozone end nitrogen dioxide, the total of
direct and indirect emissions from the
action meet the requirements:
(I) Specified In paragraph (b) of this
section, based on ereawide air quality
modeling analysis and local air quality
modeling analysis; or
(ii) Meet the requirements of
paragraph (a)(5) of this section and, for
local air quality modeling analysis, the
requirement of paragraph (b) of this
section:
(4) For CO or PM—lU. .—
(i) Where the State agency primarily
responsible for the applicable SIP
determines that an azeawide air quality
modeling analysis Is not needed, the
total of direct and Indirect emissions
from the action meet the requirements
specified in paragraph (bi of this
section, based on local air quality
modeling analysis; or
(ii) Where the Slate agency pnmanly
responsible for the applicable SIP
determines that an areawide air qualily
modeling analysis is appropriate and
that a local air qualIty modeling analysis
is not needed, the total of direct arid
Indirect emissions from the action meet
the requirements specified In paragraph
(biof this section, based on ares wide
modeling, or meet the requirements of
paragraph (a)(5) of this section: or
(5) For ozone or nitrogen dioxide, and
for purposes of paragraphs (a)(3)(n) and
(a)(4)(ii) of this section, each portion of
the action or the action as a whole meets
any of the following requirements
(i) Where EPA has approved a
revision to an area’s attainment or
maintenance demonstration after 1990
and the State makes a determination as
provided in paragraph (a)(5 )(i)(A) of this
section or where the State makes a
commitment as provided in paragraph
(a)(5Xi)(8) of this section:
(A) The total of direct and indirect
emissions from the action (or portion
thereof) is determined and documented
by the State agency primarily
responsible for the applicable SIP to
result in a level of emissions which,
together with all other emissions in the
nonattainment (or maintenance) area,
would not exceed the emissions budgets,
specified In the a pplicable SIP;
(B) The total of direct and indirect
em(ssions from the action (or portion
thereof) is deisrmined by the State
agency responsible for the applicable
SIP to result in a level of emissions
which, together with all other emissions
in the nonattainment (or maintenance)
area, would exceed an emissions budget
specified In the applicable SIP and the
State Governor or the Governor’s
designee for SIP actions makes a written
commitment to EPA which includes the
following:
(1) A specific schedule for adoption
and submittal of a revision to the SIP
which would achieve the needed
emission reductions prior to the time
emissions from the Federal action
would occur
(2) IdentifIcation of specific measures
for incorporation Into the SIP which
would result In a level of emissions
which, together with all other emissions
in the ncmattalnment or maintenance
area, would not e icceed any emissions
budget specified in the app’ :cable SiP:
(3’) A demonstration that all existing
applicable SIP requirements are being
implemented in the area for the
pollutants affected by the Federal
action, end that local authority to
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63258 Federal Register / Vol. 58.
No. 228 / Tuesday, November 30. 1993 / Rules and Regulations
implement additional requirements has
been fully pursued;
(4) A determination that the
responsible Federal agencies have
required all reasonable mitigation
measures associated with their action;
and
(5) Written documentation including
all air quality analyses supporting the
conformity determination;
(C) Where a Federal agency made a
conformity determination based on a
State commitment under paragraph
(a)(5)(iflB) of this section. such a State
commitment is automatically deemed a
call For a SIP revision by EPA under
section 110(k)(5) of the Act, effective on
the date of the Federal conformity
determination and requiring response
within 18 months or any shorter time
within which the State commits to
revise the applicable SIP;
(ii) The action (or portion thereof), as
determined by the MPO, is specifically
included in a current transportation
plan and transportation Improvement
program which have been found to
conform to the applicable SIP under 40
CFR part 51. subpart 1. or 40 CFR part
93. subpart A;
(iii) The action (or portion thereof)
fully offsets its emissions within the
same nonattainment or maintenance
area through a revision to the applicable
SiP or an equally enforceable measure
that effects emission reductions equal to
or greater than the total of direct and
indirect emissions from the aCtiOn so
that there is no net increase in
emissions of that pollutant;
(iv) Where EPA has not approved a
revision to the relevant SIP attainment
or maintenance demonstration since
1990. the total of direct and indirect
emissions from the action for the future
years (described In §93.159(d) do not
increase emissions with respect to the
baseline emissions:
(A) The baseline emissions reflect the
historical activity levels that occurred In
the geographic area affected by the
proposed Federal action during:
(1) Calendar year 1990;
(2) The calendar year that is the basis
for the classification (or. where the
classification Is based on multiple years.
the most representative year). if a
classification is promulgated in 40 CFR
part 81; or
13) the year of the baseline inventory
in the PM—SO applicable SIP;
(B) The baseline emissions are the
total of direct sad indirect emissions
calculated for the future years
(described in § 93.159(d)) using the
historic activity levels (described in
paragraph (a)(5)(Iv)(A) of this section)
and appropriate emission factors for the
future years; or
(v) Where the action involves regional
water and/or wastewater projects. such
projects are sized to meet only the needs
of population projections that are in the
applicable SIP.
(I ,) The areawide and/or local air
quality modeling analyses must:
(1) Meet the requirements in §93.159;
and
(2) Show that the action does not:
Ci) Cause or contribute to any new
violation of any standard In any area; or
(ii) Increase the frequency or severity
of any existing violation of any standard
in any area.
Cc) Notwithstanding any other
requirements of this section. an action
Iubject to this subpart may not be
determined to conform to the applicable
SIP unless the total of direct and
indirect emissions from the action is in
compliance or consistent with all
relevant requirements and milestones
contained In the applicable SIP, such as
elements identified as part of the
reasonable further progress schedules,
assuniptions specified in the attainment
or maintenance demonstration.
prohibitions. numerical emission limits.
and work practice requirements.
(d) Any analyses required under this
section must be completed. and any
mitigation requirements necessary for a
finding of conformity must be Identified
before the determination of conformity
Is made.
* 93.159 Procedures for conformity
determInatIons f general Federal actions.
(a) The analyses required under this
subpart must be based on the latest
planning assumptions.
(1) All planning assumptions must be
derived from the estimates of
population, employment, travel, and
congestion most recently approved by
the MPO. or other agency authorized to
make such estimates, where available.
(2) Any revisions to these estimates
used as past of the conformity
determination, including projected
shifts In geographic location or level of
population. employment, travel, and
congestion. must be approved by the
t O’O or other agency authorized to
make such estimates for the urban area.
U,) The analyses required under this
subpart must be based on the latest and
most accurate emission estimation
techniques available as described below,
unless such techniques are
Inappropriate. If such techniques are
inappropriate and written approval of
the EPA Regional Administrator is
obtained for any modification or
substitution, they may be modified or
another technique substituted on a case-
by-case basis or. where appropriate, on
a generic basis for a specific Federal
agency program.
(1) For motor vehicle emissions, the
most current version of the motor
vehicle emissions model specified by
EPA and available for use In the
preparation or revision of SIPs in that
State must be used for the conformity
analysis as specified in paragraphs
(b)(1)(i) and (ii) of this section:
(1) The EPA must publish in the
Federal Register a notice of availability
of any new motor vehicle emissions
model; and
(ii) A grace period of 3 months shall
apply during which the motor vehicle
emissions model previously specified
by EPA as the most current version may
be used. Conformity analyses for which
the analysis was begun during the grace
period or no more than 3 years before
the Federal Register notice of
availability of the latest emission model
may continue to use the previous
version of the model specified byEPA.
(2) For non-motor vehicle sources,
Including stationary and area source
emissions, the latest emission factors
specified by EPA In the “Compilation of
Air Pollutant Emission Factors CAP—
42)” i must be used for the conformity
analysis unless more accurate emission
data are available, such as actual stack
test data from stationary sources whic
are part of the conformity analysis.
Cc) The air quality modeling analyses
required under this subpart must be
based on the applicable air quality
models, data bases, and other
requirements specified In the most
recent version ef the “Guideline on Air
Quality Models (Revised)” (1986),
including supplements (EPA’
publication no. 450/2—78—027R) 3,
unless:
(1) The guideline techniques are
Inappropriate, in which case the model
may be modified or another model
substituted on a case-by-case basis or,
where appropriate, on a generic basis for
a specific Federal agency program; and
[ 2) Written approval of the EPA
Regional Administrator is obtained for
any modification or substitution.
(d) The analyses required under this
subpart. except §93.158(a)(1). must be
based on the total of direct and indirect
emissions from the action and must
reflect emission scenarios that are
expected to occur under each of the
following cases;
(1) The Act mandated attainment year
or, if applicable. the farthest year for
which emissions are projected in the
maintenance plan;
‘Copisu way be obtained bow the Technical
Support Division of OAQPS. A. MD—H, Researco
Triangle Park, NC 37111.
aSeefoolnote lit 593.l59(bX2).
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Federal Register / Vol. 58. No. 228 / Tuesday. November 30, 1993 I Rules and Regulations 63259
(2) The year during which the total of
th.act and indirect emissions from the
action is expected to be the greatest on
an annual basis; and
(3) Any year for which the applicable
SIP specifies an emissions budget.
93.16O Mitigation of air quality Impacts.
(a) Any measures that are intended to
mitigate air quality Impacts must be
identified and the process for
implementation and enforcement of
such measures must be desaibed,
including an Implementation schedule
containing explicit tlmellnes for
Implementation.
(b) Prior to determining that a Federal
action Is in conformity, the Federal
agency making the conformity
determination must obtain written
commitments from the appropriate
persons or agencies to Implement any
mitigation measures which are
Identified as conditions for making
conformity determinations.
Cc) Persons or agencies voluntarily
committing to mitigation measures to
facilitate positive conformity
determinations must comply with the
obligations of such commitments.
(d) In Instances where the Federal
agency Is licensing, permitting or
otherwise approving the action of
another governmental or private entity.’
approval by the Federal agency must be
conditioned on the other entity meeting
the mitigation measures set forth in the
conformity determination.
(e) When necessary because of
changed circumstances, mitigation
measures may be modified so long as
the new mitigation measures continue
to support the conformity
determination. Any proposed change in
the mitigation measures is sublect to the
reporting requirements of § 93.156 end
the public participation requirements of
§ 93.157.
(I) The Implementation plan revision
required in § 93.151 shall provide that
written commitments to mitigation
measures must be obtained prior to a
positive conformity determination and
that such commitments must be
fulfilled.
(g) After a State revises its SIP to
adopt its general conformity rules and
EPA approves that SIP revision, any
agreements, including mitigation
measures, necessary for a conformity
determination will be both State and
federally enforceable. Enforceability
through the applicable SIP will apply to
all persons who agree to mitigate direct
and indirect emissions associated with
a Federal action for a conformity
determination.
IFR Doc. 93—28818 Filed 11—29—93; 8:45 am)
ta.u o coos IMO.eD.P
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‘)5—O1— 5 J2:33? OM EPA iYEL—ANN ? 8OE TO 91/7’J32 5535O PUU2/ O3 C Z
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
ANN ARBOR, MICHIGAN 48105
, ., /
4 , t
OFFICE OF
DEC2019 93
MEMORANDUM
SUBJECT: Transportation Contormity Final Rule
Implementation
FROM: Philip A. Lorang, Director 1 ?i)(t r j-
Emission Planning and Strat es Di’ isià
TO: Regional Division Directors.
As you may know, the final transportation conformity
rule was published in the November 24, 1993 Federal
Register . This rule imposes challenging requirements for
the transportation community to develop transportation
plans, programs, and projects which are consistent with the
SIP’S emission reductions. In addition, because the rule
links the conformity process to SIP status, the conformity
rulu lua, speci il. imp i ..at.ione Cur U i. EPA Regions in
coordinating conformity activities with SIP handling and
review.
The rule’s provisions have both short—term and longer-
term impacta on Regional activities, as des ribad below:
The rule imposes automatic consequences for failure
to submit, incompleteness findinge, and disapprovals of 15%
SIPs and attainment demonstrations. For example, an area
may not approve any new transportation plans or
transportation improvement programs (TIPS) after March 1994
if:
-- its Co attainment demonstration has not been
submitted or has been found incomplete;
—-its PM-iD attainment demonstration which is
already due is not submitted or has bean found
incomplete; or
—-its 15% SIP has not been submitted.
Many in the transportation community will V .eW these
consequences as vary disruptive to their mission. As a
result, the transportation community will be very interested
in the status of these SIP submittals.
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J5_:J j—5 d2: 33PM FROM ?A MVEL-ANN ARBOR ?O Yi/703235535U P!3U3/ 1j 03
• In areas which have already submitted attairune t
demonstrations or 15% SIPs, the SIP’s “motor vehicle
emissions budget” must be used for conformity demonstrations
made after February 1994. As described in the final rule’s
preamble and regulatory text, the “mof or vehLc)e emissions
budget” is the SIP’s projection of motor vehicle emi3sions
for 2.996 (for 15% SIPs) or the attainment year. SIPS which
have been submitted will need to be examined to identity the
motor vehicle emissions budget. We expect that in some
areas, additional time will be needed to reconcile the
modeling methods of the SIP and the ITO’s transportation
plan, so that it can be determined whether the
transportation plan is consistent with the SIP’s budget.
• The rule requires the SIP’s motor vehicle emissions
budget to be u od for the purpo es of transportation
conformity once the SIP is submitted--before EPA approval.
Therefore, there is special need to find incomplete or
disapprove SIPs with unacceptable budgets.
Before approving SIRS, it will be necessary to consider
whether the SIP properly identifies its motor vehicle
emissions budget for the purposes of conformity.
• The conformity rule’s automatic consequences for
incompleteness findings and disapprovals (described above)
do not apply if the only reason for the incompleteness
finding or disapproval is that the State has not completed
legislation or rulemaking to put all of the measures in its
otherwise adequate strategy into enforceable legal forms.
EPA must explicitly state that this is the case when making
it incompleteness findir g or disapproval in order to
prevent conformity consequences from taking effect.
Therefore, EPA Regions must ensure that the appropriate,
explicit statements are made when SIPs are incomplete or
disapproved because of committed rather than enforceable
measures.
DOT and ONS are holding two-day conformity workshops in
each region for DOT and EPA Regional staff and state and
local air quality and transportation agencies. In addition,
we will be working closely with the transportation staff in
each region to offer assistance in implementing the
conformity rule and determining where written guidance may
be appropriate. Please feel free to call me at 313-668-
4374, or have your staff call. Kathryn Sargeant (313-668-
4441) if you have any questions.
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tO
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_____ ANN ARBOR MIC-IIGAN 48105
OFFICE OF
FEB 15 1994 AIR AND
MORANDUM
SUBJECT: Transportation Conformity Q & A’s
FROM: Philip A. Lorang, Director
Emission Planning and Strateg i i
TO: Chief, Air, Pesticides and Toxics Management,
Region 1
Chief, Air Programs Branch,
Regions 2,3,4,6,8,9,10
Chief, Air Branch, Region 7
Chief, Air, Enforcement Branch, Region 5
Chief, Air, Toxics and Radiation Branch, Region 5
Chief, Regulations Development Branch, Region 5
Since you will be participating in the transportation
conformity process through interagency consultation, I
wanted to provide you with our interpretation of the
transportation conformity rule for certain issues. We have
coordinated with the Federal Highway Administration and
Federal Transit Administration, and these agencies will be
taking a similar position on these issues.
Clean Air Act section 182(f) NOx exemption .
Q: Can an area be excused from the conformity
requirements related to NOx if it has submitted a petition
for a determination that the NOx requirements of Clean Air
Act section 182(f) do not apply?
A: An area may not be excused from conformity
requirements related to NOx until the EPA Administrator or
her designee approves the petition. According to Clean Air
Act section 182 (f) (3), the Administrator shall grant or deny
such petition within six months after its filing with the
Administrator. EPA’s Office of Air Quality Planning and
Standards issued guidance on Clean Air Act section 182(f) in
December 1993.
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TCMs in a submitted SIP .
Q: Must conformity determinations demonstrate timely
implementation of TCMs which are included in a submitted
SIP, but are not included in the existing SIP approved by
EPA?
A: Conformity determinations must demonstrate timely
implementation of only those TCMs which a e included in a
SIP which has been approved by EPA. However, the
transportation community should consider whether it will be
necessary to begin implementation of TCMs in a submitted SIP
before the SIP is approved, in order to meet the
implementation deadline in the SIP once the SIP is approved.
For example, TCMs which are relied on for 15% reductions in
volatile organic compound (VOC) emissions (for moderate and
above ozone areas) or for attainment demonstrations will
have to be programmed and implemented in the very near term.
Considering the approaching attainment deadlines for many
areas, it would not be prudent to defer such measures until
the SIP is approved by EPA.
Street sweeping for PM-1O control as a TCM .
Q: Is street sweeping for PM-l0 control a TCM for
which timely implementation must be demonstrated, if it is
included in an approved SIP?
A: Yes. The purchase and operation of Street sweeping
equipment is eligible for CZ’IAQ funding, and EPA and DOT
believe that timely implementation of the street sweeping
measures included in an approved SIP must be demonstrated
for the purposes of conformity. SIPS may vary in whether
they commit to specific purchases of street sweeping
equipment or commit to certain operation (e.g., frequency of
operation) of Street sweeping equipment, or both.
Credit for TCMs in the build/no-build .
Q: Section 51.452(a)(5) (58 FR 62230) implies that
because you must make the same assumptions about control
programs in both the “Baseline” and “Action” scenarios, you
cannot take any credit for adopted regulatory TCMs in the
build/no-build test. Is this true?
A: Those regulatory TCMs which have been fully adopted
by the enforcing jurisdiction since the last conformity
determination may be included in the “Action” scenario (and
thus credit taken). (See §51.436(d) (2), (3), and (4) on FR
62225.) The “same assumptions” language applies to
2
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assumptions such as fuel reformulation, I/M program
requirements, etc. These types of technological controls
are included in both the “Baseline” and “Action” scenarios.
Hot spots .
- Q: Can a project be considered to satisfy the hot-spot
criteria ( 5l.424 (58 FR 62223) and §51.434 (58 FR 62225))
if the hot-spot analysis predicts a future violation with
and without the project, but predicts that if the project is
built, it will reduce the frequency and severity of the
predicted future violation which would occur without the
project.
A: Yes, such a project satisfies the hot-spot
criteria. Such a project would not be considered to be
contributing to a new violation.
Since the project is helpful, it would not promote
clean air by preventing it from being undertaken. In a
nonattainxnent area with an approved SIP, the SIP should
already address the future hot spot. If not, the
appropriate action is for the state to volunteer or for EPA
to call for a SIP revision.
County-by-county SIP budgets .
Q: If each county in an area has its own !T0 and the
SIP disaggregates its emission reduction targets by county,
can the SIP be interpreted to establish a separate motor
vehicle emissions budget for each county?
A: Yes. Although county-by-county disaggregation does
not necessarily establish a separate emissions budget for
each county, one can interpret the SIP to establish separate
emissions budgets by county if there seems to be such an
intent in the SIP. In this case, an intent for separate
emissions budgets by county can be inferred if an area has
separate t Os for each county and if SIP and transportation
plan development activities in the area have historically
been conducted on a county-by-county basis.
Emissions budgets in PM-1O SIPS which demonstrate
impracticability .
Q: The preamble (58 FR 62196) says: “Some moderate
PM—lO nonattainment areas may have submitted SIPs which
demonstrate that the area cannot attain the PM-lO standard
by the applicable attainment date. Such SIPs which do not
demonstrate attainment do not have budgets and are not
3
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considered control strategy SIPS for the purposes of
transportation conformity.” What if the SIP demonstrates
that attainment by the Clean Air Act deadline is
impracticable, but goes on to demonstrate attainment for a
later year? Should that attainment demonstration be
considered to establish a motor vehicle emissions budget for
conformity purposes?
A: Moderate PM-1O areas which demonstrate the
impracticability of attainment by the Clean Air Act deadline
are reclassified to serious,, after which they have four
years to submit an attainment demonstration. If the
demonstration of impracticability includes an “attainment
demonstration” which is just an illustration and the area
intends use the four-year period to submit a true attainment
demonstration, then the illustrative attainment
demonstration does not establish a motor vehicle emissions
budget for the purposes of conformity. However, if the
demonstration of impracticability includes an attainment
demonstration which contains all the necessary control
measures or represents a commitment to the specific measures
necessary for attainment, and if the State seemed to want it
to be approved as THE required attainment demonstration,
then it establishes a motor vehicle emissions budget for the
purposes of conformity.
Maintenance clans .
Q: Is a maintenance plan used for the purposes of
conformity when it is submitted, or not until it is approved
by EPA?
A: According to §51.448(i) (58 FR 62229), if a
maintenance plan is submitted instead of a 15% SIP or an
attainment demonstration, the maintenance plan is treated as
a “control strategy SIP” and its budget should be used for
conformity tlpon submission (as described in §51.448). In
other cases, when a 15% SIP or attainment demonstration
already exists or is not required, the maintenance plan’s
budget need not be used for conformity purposes before it is
approved by EPA.
Rationale : If the maintenance plan is submitted by an’
area which is not re4uired to submit a 15% SIP or attainment
demonstration (e.g., a marginal area), the area must in any
case satisfy the build/no-build test until EPA.approves the
maintenance plan. Thus, a budget which relaxes the
build/no—build test will not ease the area’s conformity test
until the maintenance plan is approved. If the maintenance
plan establishes a budget which is tighter than the
build/no—build test, EPA believes it is unnecessarily
4
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stringent to require the budget to be used before EPA has
approved it.
If the area has an approved 15% SIP or attainment
demonstration, an emissions budget is already in place and
EPA sees no urgency in using the maintenance plan’s budget
for conformity purposes before EPA approval. EPA is
requiring budgets in 15% SIPs and attainment demonstrations
to be used for conformity before EPA approval simply because
these budgets are the best way to determine appropriate
“contributions to emission reductions” (as required by Clean
Air Act section 176(c) (3) (A) (iii)) in the absence of a
control strategy SIP.
Pro-lects not from a conforming transportation Plan and TIP .
Q: If an area has an existing transportation plan and
TIP which were found to conform under Phase I or II interim
period criteria, and the control strategy SIP has been
submitted for more than 90 days (see §51.448 (a) (1) (ii), 58
FR 62228), must a conformity determination for a project
which is not from the conforming transportation plan and TIP
demonstrate consistency with the SIP’s emissions budget?
A: Yes. For practical purposes, this means that a
regional emissions analysis is needed for the existing
transportation plan and TIP with the project included, and
the result must be compared to the budget. If this test
cannot be passed, the project may not proceed, but the
transportation plan and TIP are not affected.
The existing plan and TIP which were found to conform
under Phase I or II interim period criteria may continue to
be used (and projects from them may continue to be approved)
until November 1994, after which they will lapse unless they
have been demonstrated to conform using the motor vehicle
emissions budget in the control strategy SIP revision
(transitional period criteria and procedures).
90-day grace period following control strateav SIP
submission .
Q: According to §51.448(a) (1) (i) (58 FR 62228), the
conformity of new transportation plans and TIPs may be
demonstrated according to Phase II interim period criteria
and procedures for 90 days following submission of the
control strategy implementation plan revision, provided the
conformity of such transportation plans and TIPs is
redetermined according to transitional period criteria and
procedures by one year from the date the Clean Air Act
5
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requires submission of the control strategy implementation
provision. If the SIP is submitted more than 120 days after
the Clean Air Act deadline (see §51.448(b), 58 FR 62228), is
there still a 90-day grace period following SIP submission,
during which conformity may be determined according to Phase
II interim period criteria?
A: Yes. This is the literal meaning of the rule.
However, because the transportation plan- and TIP must be
found to conform according to transitional period criteria
within one year from the Clean Air Act SIP submission
deadline, an area may choose to determine conformity using
transitional period criteria even during this 90-day grace
period. If the transportation plan and TIP are found to
conform using Phase II interim period rather than
transitional period criteria, the state air agency must be
consulted regarding any projects involving new regionally
significant SOy capacity (see §51.448(e), 58 FR 62229).
SIP disapprovals .
Q: If an area is in nonattainment for several
pollutants, and the control strategy SIP revision addressing
one of the pollutants is disapproved, do the transportation
plan and TIP lapse even if the SIP revisions addressing the
other pollutants are ok?
A: Yes. Disapproval of any control strategy SIP
revision for an area would result in the transportation plan
and TIP lapsing after 120 days.
Exemption of ECO development and planning activities .
Q: In the event of a nonconforming transportation
plan/TIP, may ECO planning and development activities funded
by cMAQ proceed?
A: Yes, ECO planning and development activities are
considered “planning activities,” which are exempt under
Table 2 (see 58 FR 62233). Such activities may proceed in
the absence of a conforming transportation plan and TIP.
cc: Sara Schneeberg
Gerri ?omerantz
6
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
MAR 2 1924
ThE ADMINISTRATOR
Honorable Ann W. Richards
Governor of Texas
Austin, Texas 78711
Dear Governor Richards:
In response to your inquiry over the ozone designation of
Victoria County, Texas, the enclosed materials detail our
response to your concerns in four specific areas:. 1)
transportation conformity; 2) maintenance plans; 3) data on which
the original designation was based; and 4) redesignation.
On the issue of transportation conformity, EPA believes that
it has found a solution that should allow Victoria County to
proceed with its transportation plans without delay. In
addition, while we underi tand that Victoria County is close to
having enough ozone data to be redesignated to attainment, I have
also directed my staff to review the maint nance plan
requirements for areas suchas Victoria Count 1 by April 29, 1994.
Details on how EPA intends to proceed on these issues are
outlined in Enclosure 1.
I appreciate your concern over these issues and trust that
we can continue to work towards redesignating Victoria County to
attainment for ozone. Should you require any additional
information, please feel free to call me.
Enclosures
cc: John Hall, Chairman
Texas Natural Resource Conservation Cominissic n
£X RecycledRocyclabli
.d W SCyICaflOII rns o .. ,
esnans at least 50% r.Cvc.d
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EMCLOSVRE 1
1. The Imnact of the New TransDortation Conformity Requirements
in Victoria County
These requirements call for a demonstration by Victoria
County and the Texas Department of Transportation (DOT) that
any new highway projects do not adversely affect air
quality. It is our understanding that the Texas DOT and the
Federal Highway Administration have agreed to assist
Victoria County in completing the work that needs to be done
to update their transportation plan, and this project
appears to be on schedule.
Certain areas, such as Victoria County, have questioned the
need for the nitrogen oxides (NOx) build/no-build test of
the transportation conformity regulations in areas where
complete air quality data is expected to show attainment of
the ozone National Ambient Air Quality Standards. EPA is
currently developing a national interpretation of the
conformity requirements which would allow areas with air
quality data which show attainment of the standards to
petition EPA for a conditional exemption from the NOx
portion of this build/no-build demonstration. The exemption
will be conditioned on those areas continuing to show
attainment. This exemption would assist such areas in
gaining approval of their transportation plan updates in
time for highway funding to proceed.
We propose to publish a notice discussing this national
interpretation before the end of April 1994. Our Region 6
office would follow this national announcement by publishing
a notice proposing that Victoria County has air quality data
which shows attainment of the standard and the conditional
NOx exemption allowed by the national interpretation would
be applicable to the Victoria transportation plan. The
Region would finalize the conditional exemption after the 36
consecutive months of data has been collected, assuming that
no adverse coents affect the proposal. This timeframe
should allow Victoria County’s transportation plan to be
approved and highway funding to continue.
2. Maintenance Plans
We have been exploring potential options for incomplete data
areas like Victoria to satisfy the maintenance plan
requirements. These options and a decision on the require-
ments for a maintenance plan have been difficult since no
provision for exempting a redesignated area from the
maintenance plan requirements is specifically included in
the Clean Air Act Amendments of 1990. However, EPA is
reviewing the possibility for those areas classified as
incomplete data, such as Victoria County, of either
minimizing the maintenance plan requirements or exempting
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2
such areas from the maintenance plan requirements. The EPA
staff has been directed to complete their legal and
technical analysis on this issue no later than pri1 29,
1994.
3. Validity of Original Designation
Concerns have been raised over the validity of the data
collected and the basis behind the original nonattainment
designation decision. Your inquiry specifically seeks a
final decision on the data correction issue. In response to
the air quality issue, our Region 6 office has reviewed the
original data collected in 1977. Our eva].uation.concludes
that the air quality data collected during this time is
valid, and we believe revoking the nonattainment designation
is not appropriate. We have explored the possibility that
an error might have been made in the original designation.
However, after rechecking the ozone data, we conclude that
our original decision designating the area nonattainment is
technically correct. Unfortunately, no monitoring data was
collected between 1977 and 1989 which could be used as a
basis for revisiting this decision. We are pleased that
data collected in 1989, and again since april of 1991, have
shown no exceedance of the 0.12 ppm 8t ne rd. Enclosure 2
summarizes the Region’s evaluation of the Victoria ozone
data issue.
4. Redesicmation of Victoria County
We are pleased that Victoria is on the verge of having the
necessary ozone data to allow for redesignation to
attainment and I want to assure you that the EPA is
committed to working with Victoria County officials and the
State of Texas to complete the steps that are required to
officially redesignate Victoria County to attainment. In
the meantime, I am glad to be able to work with you,
officials of Victoria County and the State of Texas in
implei enting the Clean Air Act requirements.
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ENCLOSURE 2
Victoria Ozone Data Validity Evaluation
In response to the question of the validity of the ozone
data on which Victoria County was designated as nonattainment,
the Region 6 office has reviewed the original data collected in
1977. The evaluation confirms that the air quality data
collected during this time was valid, and we are of the opinion
that the resulting nonattainment designation was technically
correct. By way of background, the data was collected under an
EPA contract study conducted during a six week period in 1977.
During this period 14 exceedances were monitored using the old
ozone standard of .08 parts per million (ppm). However, two
events have occurred since this original designation. First, the
ozone standard has been raised from .0.08 ppm to 0.12 ppm, and
second, the ozone monitoring calibration technique has been
revised. In 1978, a new calibration method was introduced which
affected the accuracy of the monitored exceedances. After
adjusting the data downward 18% to account for the bias of the
old calibration method, several exceedances still remained .
These exceedances were then e m 4 ned under the new National
Ambient Air Quality Standard (NAAQS) for ozone of 0.12 ppm and
one exceedance remained. It should be noted that these readings
were taken from September through November, not during the peak
ozone season 2 . The ozone standard states that the expected
number of exceedances per year must be less thpn or equal to 1.
If the expected exceedance calculation set farth in EPA’s
regulations is applied to the Victoria County data, 9.1
exceedances of the ozone st nd rd would be expected. EPA’S
regulations at 40 CFR Part 50, Appendix H, discusses the
calculations required to make this determination.
We believe that revoking the existing designation is not
appropriate. Based on approved calibration methods and the
established National Ambient Air Quality Standard (NAAQS) in
1977, the correct decision was made. Both monitors operating
‘EPA replaced the NBKI (non-buffered Potassium Iodide)
calibration method with the UV photometric method in the Federal
Register Notice, June 22, 1978. EPA stated in the Federal
Register notice, “Because of the substantial variability and
unpredictable bias in the NBKI procedure the exact magnitude f
any bias which may exist cannot accurately be determined”. “No
factor is available to “correct” or “adjust” previously obtained
data”. “Comparative studies cited in the October 6, 1976 notice
suggest that the differences between the NBXI procedures and T N
procedures generally do not exceed 10%”.
21977 data were collected from 9/24/77 to 11/7/77 - the
highest ozone months in Region 6 tend to be May through August.
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during this six week period were audited and demonstrated
performance levels well within established tolerances. Moreover,
even if the data is reevaluated against current air quality
criteria, designation as a nonattainment area would still have
been warranted.
It has also been brought to EPA’s attention that the 1983 issue
paper developed by the Texas Air Control Board concerning
Victoria County’s nonattaininent designation suggested ozone
transport from other urbanized areas as the cause of ozone
exceedances in Victoria County. While the impact of transport
has been a basis for the type of control strategies required in
Victoria in the past, transport is not a basis for revising the
designation.
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TO:
Chief,
Region
Chief,
Chief,
Chief,
Chief,
Chief,
i(O S7 4 ,
_____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
/ NATIONAL VEHICLE AND FUEL EMISSIONS LABORATORY
2565 PLYMOUTH ROAD
ANN ARBOR, MICHIGAN 48105
MAY 021994
OFFICE OF
AIR AND RAOIATJO,,I
MEMORANDUM
SUBJECT: Transportation Conformity Q & A’s
FROM: Philip A. Lorang, Director
Emission Planning and Stral
Air, Pesticides and Toxiàs
1
Air Programs Branch, Regions 2,3,4,6,8,9,10
Air Programs Branch, Region 7
Air, Enforcement Branch, Region 5
Air, Toxics and Radiation Branch, Region 5
Regulations Development Branch, Region 5
Following is a set of questions and answers which, like
my February 15, 1994 memorandum, clarifies our
interpretation of the transportation conformity rule for
certain issues. We have coordinated with the Federal
Highway Administration and Federal Transit Administration,
and these agencies will be taking a similar position on
these issues.
Regional emissions analysis when both 15% SIPs and
attainment demonstrations have been submitted .
Q: What if the (which establishes a 1996 VOC -
budget) has been submitted but not vet am,roved , and the -
attainment demonstration has also been submitted but not yet
aTM)roved , and it has been less than 90 days since the date
the attainment demonstration was submitted? (According to
§51.448(a) (1) (i) (58 FR 62228), the conformity of new
transportation plans and TIPS may be demonstrated according
to Phase II interim period criteria and procedures for 90
days following submission of the control strategy
- implementation plan revision.)
A: For the 1996 analysis year and subsequent analysis
years, the transportation plan/TIP conformity determination
must demonstrate consistency with the 15% SIP’S VOC budget
and pass the build/no-build test for both VOC and NOx. The
VOC and NOx budgets established by the attainment
demonstration for the attainment year (and possibly other
Printed ‘ RecjcJed Papev
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-2—
years) are not required to be used for the purposes of
conformity because of the 90-day grace period (although an
area is permitted to use them and may in fact find it
advisable to do so). However, it is important to note that
consistency with the 1996 VOC budget established by the
submitted 15% SIP must be demonstrated for all analysis
years.
Regardless of the 90-day grace period, the
transportation plan and TIP must be found to conform to the
attainment demonstration’s VOC and NOx budgets (according to
transitional period criteria) by November 15, 1995 (see
§51.448(a) (1), 58 FR 62228).
Q: What if the 15% SIP (which establishes a 1996 VOC
budget) has been submitted but not vet approved , and the
attainment demonstration has also been submitted but not vet
approved , and it has been more than 90 days since the date
the attainment demonstration was submitted?
A: For the 1996 analysis year, the transportation
plan/TIP conformity determination must demonstrate
consistency with the .5% SIP’s VOC budget and pass the
build/no-build test for both VOC and NOx. For subsequent
analysis years, the transportation plan/TIP conformity
determination must demonstrate consistency with the 15%
SIP’S VOC budget and the attainment demonstration’s VOC and
NOx budgets, and pass the build/no-build test for VOC and
NOx.
Q: What if the jj (which establishes a 1996 VOC
budget) has been approved , and the attainment demonstration
has been submitted but not vet approved , and it has been
less than 90 days since the date the attainment
demonstration was submitted?
A: For the 1996 analysis year, the transportation
plan/TIP conformity determination must demonstrate
consistency with the 15% SIP’s VOC budget and pass the
build/no-build test for NOx only. Because the 1996 VOC
budget has been approved as part of the 15% SIP revision,
the build/no-build test for VOC is- not necessary for the
1996 analysis year. For subsequent analysis years, the
conformity determination must demonstrate consistency with
the 15% SIP’s VOC budget and pass the build/no-build test
for both VOC and NOx. The VOC and NOx budgets established
by the attainment demonstration for the attainment year (and
possibiy other years) are not required to be used for the
purposes of conformity because of the 90-day grace period
(although an area is permitted to use them and may in fact
find it advisable to do so).
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—3—
Regardless of the 90-day grace period, the
transportation plan and TIP must be found to conform to the
attainment demonstration’s VOC and NOx budgets (according to
transitional period criteria) by November 15, 1995 (see
§51.448(a) (1), 58 FR 62228).
Q: What if the 15% SIP (which establis1 es a 1996 VOC
budget) has been a roved , and the attainment, demonstration
has been submitted but not vet approved , and it has been
more than 90 days since the date the attainment
demonstration was submitted?
A: For the 1996 analysis year, the transportation
plan/TIP conformity determination must demonstrate
consistency with the 15% SIP’s VOC budget and pass the
build/no-build test for NOx only. For subsequent analysis
years, the transportation plan/TIP conformity determination
must demonstrate consistency with 15% SIP’s VOC budget and
the attainment demonstration’s VOC and NOx budgets, and pass
the build/no-build test for VOC and NOx.
NOx budgets .
Q: Does submitting and getting EPA approval for a NOx
budget relieve a state of the build/no-build test for NOx?
A: An area would be relieved of the build/no-build
test for all future analysis years only if the NOx budget is
part of an attainment or maintenance demonstration. If EPA
approves a NOx budget which applies only for a reasonable
further progress (RFP) milestone year, the area is relieved
of the build/no-build test for that milestone year. For
future analysis years, the area would have to demonstrate
consistency with the approved NOx budget and also pass the
- build/no-build test for NOx.
Emission reduction credits for committed measures in an
incomplete control strateav SIP .
Q: Section 51.452(a) (4) allows areas to take emission
reduction credit for committed measures in the submitted SIP
when demonstrating consistency with the budget during the
transitional period. However, this paragraph refers to an
incompleteness finding as an EPA “final” action which would
end the transitional period. This seems to contradict the
provision in §51.448(c) (1) (iii), which allows conformity to
be determined using transitional period procedures in some
cases of incompleteness. - -
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—4—
A: According to the definition of “transitional
period” in §51.392, the precise beginning and end of the
transitional period is defined in §51.448. Section 51.448
allows conformity determinations to be made according to
transitional period criteria and procedures in certain
circumstances following an incompleteness finding by EPA
(see, for example, §S51.448(c) (1) Ci) and 51.448(c) (1) (iii)).
When areas with incompleteness findings are still able to
make conformity determinations, they may indeed take
advantage of §51.452(a) (4) and take credit for the committed
measures in the submitted SIP when making the comparison to
the submitted SIP’S budget.
Special provisions for nonattainment areas which are not
required to demonstrate reasonable further progress and
attainment .
Q: Section 51.464(b) says that certain areas will
continue to use build/no-build tests “throughout the control
strategy period.” These areas normally will not enter a
control strategy period.
A: Section 51.464(b) should not have implied that
these areas will be in the control strategy period. EPA
intended to say that these areas will continue to use
build/no-build tests until a maintenance plan is approved
(or, as described in §51.464(c), a budget is established and
approved through the SIP process). The questioner is
correct that these areas will be in Phase II of the interim
period until the maintenance plan is approved or a budget is
otherwise established.
ECO as a TCM .
Q: Is the Employee Commute Options. program (ECO, also
known as Employer Trip Reduction or ETR) a Tti4 which is
eligible for funding under title 23 u.S.C. and therefore a
TCM for which timely implementation must be demonstrated?
A: Many implementation activities for ECO are eligible
for CMAQ funding. For example, developmental aspects of ECO
programs, including planning and promotion, are explicitly
eligible for CMAQ funding. To the extent that the SIP is
specific about necessary levels of ECO implementation
activities, the conformity demonstration must show that the
activities are being provided for on the schedule•
established by the SIP. Failure to provide for those ECO
implementation activities which are specifically included in
the SIP would result in nonconformity.
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-5-
ECO in the build/no-build .
Q: Is it permissible to get credit for the Employee
Commute Options program (ECO, also known as Employer Trip
Reduction or ETR) in the build/no-build test by including it
in the “Action” scenario and not the “Baseline” scenario?
A: Yes, activities to implement the ECO program may be
included in the “Action” scenario and not the “Baseline”
scenario. (Of course, such activities would be in the
“Baseline” scenario for succeeding conformity
determinations.) Unless there is local evidence to the
contrary, the ECO program can be assumed to have the same
effectiveness for subject employee commuting as estimated in
the SIP.
The definition of “Action” scenario indicates that
regulatory TCMs may be included in the “Action” scenario if
they have been adopted. EPA did intend regulatory TCMs to
“get credit” in the build/no-build test where appropriate.
Section 51.452 (58 FR 62230) does require that control
programs which are external to the transportation system
itself, such as I/N and reformulated gasoline, be included
in both the “Baseline” and “Action” scenarios.
Content of transportation vians .
Q: According to §51.404(a) (58 FR 62220),
transportation plans adopted after January 1, 1995 in
serious, severe, or extreme ozone nonattainment areas and in
serious Co areas must have “specific” plans which can be
analyzed using a network model. If an area which is
required to meet the content requirements of §51.404 fails
to do so, would that area’s transportation plan fail to
conform?
A: Yes, failure to satisfy the requirements of
§51.404(a), where applicable, is grounds for nonconformity.
DOT will refuse to make a conformity determination on a new
plan which is not specific, and eventually the old plan will
lapse.
Motor vehicle emissions budgets: multiple episodes .
Q: Many attainment demonstrations model multiple
episodes with varying meteorology. Which episode
establishes the motor vehicle emissions budget?
A; Even if there are multiple episodes modeled in the
SIP, there will be only one motor vehicle emissions budget
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—6—
for the purposes of transportation conformity. The motor
vehicle emissions budget should be the lowest one, i.e., the
one which is most constraining.
cc: Sara Schneeberg, OGC
Gerri Pomerantz, OAQPS
Kathy Laf fey, FRWA
Abbe Marner, FTA
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UNITED STATES ENVrRONMENTAL PROTECTION AGENCY
REGION IX
75 Hawthorne Street
San Francisco, CA 94105
May 2, 1994
Mr. Habib A. Kharrat
Project Engineer
Financial Planning & Property Management Section
County Sanitation Districts of Los Angeles County
P.O. Box 4998
Whittier, CA 90607-4998
Dear Mr. Kharrat:
I am writing in response to your letter to Ms. Connie Day of the South Coast Air
Quality Management District regarding general conformity determin2tions for wastewater
trealment facilities. I will address each of the issues you discuss in your letter.
1. Use of Latest Planning Assumptions
U.S. EPA concurs with your interpretation that the latest Planning
assumptions should be used in lieu of the growth projections contained in
the applicable SIP for the South Coast AQMD (1979).
2. Exclusion of National Pollutant Discharge Elimination System (NPDES)
Permit Issuance From a Conformity Review
EPA did receive comment on the proposed description of a “Federal
action” requesting that all NPDES actions be required to undergo
conformity analyses (58 FR 63237, November 30, 1993). EPA’s response to
this comment was that,
“Where a State is taking an independent action without Federal
support, even under an EPA approved program such as a State
NPDES program, there is no Federal action subject to these rules.
On the other hand, where a Federal agency delegates its
responsibility to take certain actions to a State or local agency, as in
the case of... Federal NPDES programs, the action remains a Federal
action and the State must make a conformity determination on the
Federal agency’s behalf.”
Therefore, only NPDES permits issued by the State under a Federally
approved program are not required to undergo conformity determinations.
3/4. Presumed Conformity Under the State Revolving Fund (SR] )
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Program/Direct Federal Funding
in the final rule, EPA did identify certain activities which were presumed
to conform. These aciivities are listed in §93. 153(d). The list does not
include wastewater treatment plants funded by the SR.F under the Clean
Water Act. While these types of projects were listed in EPA’s March 15,
1993 proposed rulemaking, they were not included in the final rule.
The funding source of a water project (whether SRF or direct Federal
grants) is irrelevant for determining conformity. In either case, section
93. 158(a)(5)(v) of the rule provides that actions involving regional water
and/or wastewater projects can be found to conform if they are sized to
meet only the needs of the population projections that are in the applicable
SIP. This section of the rule provides a specific criterion for determining
conformity of regional water and/or wastewater projects. The rule does
not, however, require that this criterion be used to make conformity
determinations for these facilities. Rather, it is one of the options
available under the rule to show conformity. The conformity rule further
provides, in § 93.159, that the conformity analyses supporting a conformity
determination must be based on the latest planning assumptions, which
must be derived from the most recently approved estimates of population,
employment, and travel approved by the Metropolitan Planning
Organization ( M M O”). In addition, § 93.152 defmes “applicable SIP” as
that plan, or most recent revision thereof, which has been approved by
EPA under § 110 of the CAA. Applicable SIP does not include a plan or
revision thereof which has been only submitted to but not yet approved by
EPA.
When read together, these provisions mean that § 93. 158(a)(5)(v) of the
rule can be used to show conformity only if the latest EPA approved SIP
uses the latest estimates of population approved by the MPO. Conformity
cannot be determined using this criterion in a nonattainment area whose
applicable SIP uses outdated estimates of population. Thus, because the
latest approved SiP for the South Coast is the 1979 plan, wastewater
facilities there could not be shown to conform using this criterion because
the Southern California Association of Governments, the local MPO, has,
since the 1979 plan, issued more recent estimates of population.
Conformity for wastewater facilities in the South Coast would have to be
determined using one of the other criteria available in § 93.158. These
criteria are/include: 1) 93. 158(a)(5)(iv) which is applicable to activities
where EPA has not approved a SIP revision since 1990; and 2) §
93. 158(a)(5)(i)(B) which permits the Governor of a state to commit to
revise the SIP to accommodate the unaccounted for emissions from the
project (even if the SIP was approved prior to 1990). Simply designing a
project around the latest planning assumptions developed by an MPO is
not sufficient for the purposes of determining conformity, unless those
assumptions are contained in an EPA approved SIP.
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5. Exemption of Full Secondary Treatment Upgrade from a Conformity
Review
It appears that an upgrade to secondary treatment required by
environmental law would fall within the scope of the §93.153(d)(4)
exemption. However, if the upgrade was also accompanied by an
expansion of capacity, it is our opinion that such an upgrade would not fall
within this exemption and would require a conformity determination
pursuant to the criteria summarized above.
To summarize, a conformity analysis is required for new treatment plants or
existing plant expansions. If the plant’s design is based on growth projections contained
in an applicable SIP (i.e. the latest SIP approved by EPA) conformity can be determined
using the criteria contained in §93. 158(a)(5)(v). If there are more recent planning
assumptions that are not contained in the applicable SIP, these assumptions must be
used in determining conformity and §93. 158(a)(5))(v) could not be relied upon. One of
the other criteria in §93.158 must be used to determine conformity. If! can be of any
further assistance please call me at (415) 744-1212.
Sincerely,
Robert Pallarino
Air Planning Branch
Air and Toxics Division
cc:
Christine Bailey, State Water Resources Control Board
Glen Blossom, Southern California Association of Governments
Connie Day, South Coast Air Quality Management District
Terry Parker, CA Air Resources Board
Tim Rimpo, Jones & Stokes Associates, Inc.
bcc: Bob Moyer, ORC, Region 9
Gerri Pomerantz, OAQPS
Sara Schneeberg, OGC .—’
Jerry Wamsley, Region 9
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— Qs,.. d ’ )
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
NATIONAL VEHICLE AND FUEL EMISSIONS LABORATORY
2565 PLYMOUTH ROAD
ANN ARBOR MICHIGAN 48105
MAV n I qng4 OFFICE OF
UJ .1 1 AIR AND RADIATION
Cindy Burbank
Director
Environmental Analysis Division
Federal Highway Administration
400 Seventh Street, S.W.
Washington, DC 20590
Dear Ms. Burbank:
I am writing to inform you about the Environmental
Protection Agency’s (EPA) interpretation of the transportation
conformity rile regarding projects funded under Title 23 through
the National Recreational Trails Funding Program, which is used
to fund recreational trails for bicycle, pedestrian, and
motorized vehicle use. EPA promulgated criteria and procedures
for determining conformity of transportation plans, programs, and
projects on November 24, 1993 (58 FR 62188). EPA intended the
transportation conformity rule to apply only to projects that
involve highway and transit vehicles, not to the type of projects
such as those funded under the National Recreational Trails
Funding program. For example, in the proposed rule on
transportation conformity, EPA states that the proposal would
establish the process by which FHWA, FTA, and MPO’g “would
determine conformity of highway and transit projects” (58 FR
3768, January 11, 1993). Additional evidence of this intent is’
found in the final rule, where EPA defines a “transportation
project” subject to a conformity determination as “a highway
project or a transit project” (58 FR 62218). Furthermore, the
motor vehicle emissions budget, as defined in the final rule, is
“that portion of the total allowable emissions ... allocated by
the applicable implementation plan to highway and transit
vehicles” (58 FR 62217). Thus, conformity of a transportation
project to an emissions budget is required only for projects
which involve highway and transit vehicles.
It is thus EPA’S opinion that transportation projects which
do not involve highway and transit vehicles, such as those
funded under the National Recreational Trails Funding Program,
are subject to the general conformity rule. This rule, published
November 30, 1993 (58 FR 63214), applies for federal, actions
other than those covered by the transportation conformity rule.
Pnnte cr RecpCe Papet
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Thank you and your staff for all of your efforts in
implementing the conformity rule. I look forward to continuing
to work together to achieve our clean air and transportation
goals.
Sincerely yo rs,
Philip . Lorang, Director\
Emission Planning and Strategies D rision
cc: S am Zimmerman
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L —U2—94 09:4IJAM FROM EPA MVEL—ANN AR OR TO 8/Th32355350 P002/006
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
(% ) ANN ARBOR. MICI4IGAN
OFFICE OF
JUL 12 1g94 AIRA,C ,IAc ATION
2MORANDTfl1
5U J CT: Findings Letters--Transportation Conformity
Aspects
FROM: Philip A. Lorang, Director
Emission Planning and Strate
TO: Director, Air Management Division, Region 1’
Director, Air and Waste Management Division
Director, Air, Radiation, and Toxica Division,
Region 3
Director, Air, Pesticides, and Toxics Management
Division, Region 4
Director, Air and Radiation Division, Region 5
Director, Air, Pesticides, and Toxics Division
Region 6
Director, Air and Toxica Division, Regions 7, 8,
9, and 10
Attached please find a detailed set of possible
scenarios regarding EPA findings letters, and a
clarification of conformity implications of each scenario.
This memorandum finalizes (with changes) a draft dated
February 24, 1994. -
Again, I apologize for the shifting interpretations of
the conformit rule on these matters. As always, my staff
and I are avai,lable to di cus conformity issues with you as
they arise.
Attachment
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L1-Ii -94 : UA 1 I OM E?A MVEL—ANN A OR TO 8/7032355350 P003/006
Attachment A
Consequences of failure to submit a 15% SIP’
(-once a finding has been made and assuming no further
developments)
1. No new plans, TIPs, or amendments may be found to
conform beginning March 24, 1994 (120-day clock starting
from rule)
2. Projacts from the existing plan and TIP may continue to
get NEPA approvals and individual, conformity
determinations until the plan and TIP lapse on November
25, 1994. (Those p ujects which get NEPA approval and
an individual conformity determination before the plan
and TIP lapse may proceed and continue to be funded even
after the lapse.)
To avoid or alter these consaquences, the SIP failure must be
remedied and acknowledged by a letter from the EPA Regional
Administrator. The remedy for failure to submit is
eubmi ion of ‘a complete SIP or a SIP that can have a
protectiv&’ finding which indicates that it is complete for
the purposes of conformity. The consequences c n be delayed
while EPA determines whether the submission is complete. See
below for further explanation.
When a 15% SIP Is sUbmitted after the finding of failure to
submit
Submission begins a 90-day grace period to find conformity
under Phase II (build/no-build test) •2 Mowever, the
transportation plan and TIP must be found to conform using
both the build/no-build test and th. budget (transitional
procedures) by November 15, 1994, or the plan/TIP will lapse——
even if November 15, 1994 falls prior to the end of the 90-day
period.’
SVE1 AR OA1:
EPA has not yet acted on the new submittal
The state may presume its submission to be complete until EPA
finds it incomplete. As a result, the failure to submit is
ce nedied (although possibly only temporarily), and the two
1 See §S1.448(bX2), 58 FR 62228
2 Sec t51.448(a)(1)(i), 58 FR 62228
See I51.448(aXL), 58 FR 62228
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1J—U2-9 09:4t3AM ERUM EPA M/ LANN A 80R 10817032355350 P004/006
consequences listed above are lifted. New plans and TIPs may
be found to conform, and the transportation plan and TIP will
not lapse on November 25, 1994 because of the original
failure to submit (unless EPA finds the SIP incomplete—-see
below).
SCE AR1 O A2:
15% SIP (submitted after finding of failure to submit) Is
found incomplete ( no urotective finding through
§51.448(c)(1)(1ii)) 4
1. If EPA finds the 15% SIP incomplete before March 24,
1994, no new plans, TIPs, or amendments may be found to
conform after March 24, ] 94. CThi5 may mean the 90—day
grace period is cut short.) The transportation plan and
TIP will lapse on November 25, 1994.
2. If EPA finds the 15% SIP incomplete after March 24,
1994, no new plans, TIPS, or amendments may be found to
conform, affective on the date of EPA’s incompleteness
determination. This may mean the 90—day grace period is
cut short.
3. If EPA finds the 15% SIP incomplete before November 25,
1994, the transportation plan and TIP lapse November 25,
1994.
4. If EPA finds the 15% SIP incomplete after November 25.
1994, the existing plan and TIP lapse as of the date of
EPA’S incompleteness finding..
SCENARIO A3 :
15% SIP (submitted after finding of failure to submit) Is
found Incomplete , but with a protective finding made under
51.448(c)(1)(iii) -
1. New transportation plans. TIes, and amendments may be
found to conform. -
2. Transportation plan and TIP lapse within 12 months of
EPA’s finding, unless another SIP revision is submitted
to EPA and found to be complete. -
The new 120-day clock allowed by 51.448(c)(I)(i) is not permitted here,
because the consequences of failure 10 submit, as Imposed by 51.448(b)(2).
apply iuilcss thu failuzc h ia bccci rcmcdicd. The remedy for failure to submit
is submission of a complete SIP or a SIP that can have a “protective” finding
which indicates that it ii complete for the purposes of conformity.
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11—02—94 09:4UAM FROM EPA MVELANN ARBOR TO 8/7032355350 P005/006
Note that it is not possible to extend this 12-month period by
granting another protective incompleteness finding. The 12-month
period of the first protective finding applies until a complete
SIP is received.
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L1—02—94 09:4OAM FROM EPA MVEi-ANN ARBOR TO 811032355350 P006/006
Attachment B
Consequences of incompleteness findings on 15% SIPs
(no previous failure to submit)
SCENARIO El:
15% SIP found incomplete ( no protect1v finding through
§S1.448(c)(1)(lii))
(no previous failure to submit)
1. No new transportation plans and TIPs may be found to
conform beginning 120 days after EPA’s incomp1etenes
finding.
2. Transportation plan and TIP will lapse November 15
1994. -
SC NA RIO B2:
15% SIP found incomplete , with protective finding through
*51.448(c)(1)(Iii)
(no previous failure to submit)
1. New transportation plans, TIPs, and amendments stay be
found to conform.
2. Transportation plan and TIP will lapse twelve months
from the date of proLective incompleteness finding,
unless another SIP revision ià submitted to EPA and
found to be complete.
Note that it is not possible to extend this 12 month period by
granting ançther protective incompleteness finding. The origiAal
12-month period applies until a complete SIP is received.
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GENERAL CONFORMITY GUIDANCE:
QUESTIONS AND ANSWERS
Office of Air Quality Planning and Standards
(MD-15)
U.S. Environmental Protection Agency
Research Triangle Park, NC 27711
July 13, 1994
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INTRODUCTION
The final general conformity rules were promulgated November 30, 1993, 58 FR 63214. This
question and answer guidance document contains issues raised at the general conformity
workshop held in Virginia on March 7-8, 1994, and deals with questions frequently asked of
EPA regarding conformity.
The guidance represents EPA’s interpretation of the general conformity rule. Federal agencies
should be advised that it is the responsibility of each agency to make its own conformity
determinations for it$ actions and to be able to justify its own application of the conformity
requirements.
As new issues arise, this document will be revised as appropriate. EPA will keep the general
conformity questions and answers (Q’s and A’s) in the Policy and Guidance section of Title I
on the CAAA bulletin board of the UN and will update it as necessary.
U
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TABLE OF CONTENTS
Overview of Air Quality Management
Background of General Conformity 3
Applicability 6
Criteria for Conformity Determination 19
Procedures 26
Mitigation 29
Transportation Conformity 30
State Agency Concerns 32
Conformity Determination and NEPA 36
Lii
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OVERVIEW OF AIR QUALITY MANAGEMENT
State Implementation Plan (SIP)
1. What is EPA’s average approval time for a SIP once it has been submitted to a regional
office?
A: The Act allows EPA two months from the time a SIP is submitted to determine if the
plan is complete. After determining that a SIP is complete, EPA then has one year to
approve that SIP. EPA risks litigation if it fails to meet this time frame.
2. Is a State allowed to enforce provisions of its SIP before a final SIP approval has been
granted by EPA?
A: Yes, if the State has already adopted the nile that it has submitted to EPA as part of its
SIP and made it effective. Both State and Federal requirements would apply in such an
interim period. Hc wever, section 93.151 of the Federal general conformity rule prohibits
State conformity rules from being more stringent than EPA’s conformity rules, unless the
more stringent State rule applies equally to Federal and non-Federal entities. Therefore,
if EPA ultimately determines that any State rules are more stringent than EPA ’s rule, the
State could not proceed.in any subsequent State enforcement actions, since those portions
would be invalid.
3. What happens, after a SIP is submitted for approval, if EPA determines that emissions
were not estimated accurately? Is there any provision for corrective actions?
A: If EPA is aware of the discrepancies between the actual emissions inventory nd the
emissions in the SIP, it may ask the State to modify the SIP before approving it. EPA
may also disapprove the SIP. If after approving the SIP it was determined that the
inventory contained a significant error, EPA would probably ask the State to revise the
SIP to correct the emissions inventory.
4. Additional guidance on State SIP revisions submittal is needed.
A: Federal agencies should consult with the appropriate State and local agencies regarding
matters related to the SIPs; EPA Regional Office air program staff can also provide
answers to specific questions. The SIP process is mandated under Title I. pecIfiLdlly
section 110, and part D. However, the development and adoption processes differ from
State to State.
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Area Class fication
5. In view of the meteorological dynamics, and the possibility that air quality monitors may
be located too close to emissions sources, why are so few air quality exceedances allowed
before an area “violates” the NAAQS and is classified as nonattainment?
A: The reason that so few exceedances can cause a violation of the standard is due to the
way the standard itself was written into regulation. 44) CFR part 50 defines what
constitutes a violation of the standard. The number of exceedances that constitute a
violation was set when EPA set the air quality standards. The number was based on
health effects observed at approximately the same concentrations occurring over the
frequencies that are covered in the standard itself. The Act requires that the standards be
reviewed periodically; EPA is currently reviewing standards for ozone and PM- 10. The
location of air quality monitors is carefully regulated as described in 40 CFR part 58.
2
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BACKGROUND OF GENERAL CONFORMITY
Statutory Obligation
1. Why did EPA promulgate this rule?
A: This rule was a statutory obligation under section 176(c)(4) of the 1990 Amendments as
set forth by Congress. Extensive meetings before the proposed and final rules were
conducted by EPA with interest groups including, the building industry, environmental
groups, STAPPA/ALAPCO, and diverse Federal agencies, to solicit and incorporate their
input.
2. Why is section 176 necessary if Federal activities are created just like private activities
under section 118?
A: Section 176 authorizes EPA and the States to regulate Federal activities to a greater extent
than they regulate private activities. All activities, private. State and Federal. must
comply with specific SIP requirements and obtain pre-construction permits, if applicable.
However, pursuant to section 176, only Federal agencies are required, as an additional
matter, to determine, prior to taking that action, that such action, when taken, will
conform to the SEP.
A ttainmentJUnclass fiahIe Areas
3. Will EPA promulgate a rule for attainment/unclassifiable areas? When’
A: It was announced in the final rulemaking that the current conformity rule only applies to
nonattainmenc areas. A separate rulemaking process would establish a conformity rule
for attainment/unclassifiable areas. No schedule has been established yet for writing this
rule.
4. How will the fact that attainment/unclassifiable areas are not required to submit a SIP
affect the rule for these areas?
A: EPA’s current rule only applies to nonattainment and maintenance areas. Any subsequent
conformity rule would establish relevant conformity criteria and procedures for
attainment/unclassifiable areas.
3
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Stale Obligations
5. Do States need to adopt regulations or include other requirements in the SIP that relate
to general conformity?
A: States need to adopt rules or regulations or have SIP requirements that bind the Federal
agencies making the conformity determination to compliance with the methods indicated
in the SIP. In most cases, States may adopt regulations; however, States that have
authority to issue executive orders or similar powers that are binding without the need for
a rulemaking may elect to do so.
6. How would EPA suggest that States track projects using emissions budgets when the
emissions budgets cover growth for all projects (Federal and State) and general
conformity only applies to Federal projects? (Moreover, it is conceivable that projects
occurring later in time may find that budgeted emissions have been spent by earlier
projects and the later projects would be exceeding the emissions budget.)
A: States are required to track their emissions over time for certain types of areas, for
example, in ozone nonattainment areas classified as serious and above. Reasonable
Further Progress (RFP) must be tracked and periodic emission inventories must be
reported. The tracking exçrcise determines if the areas are making the required reductions
in emissions. However, it is the responsibility of each State to determine the best way
to collect information on emission changes on a periodic basis. If the State wants to
establish criteria for the use of the emissions budget (e.g.. to prevent a first-come, first-
serve scenario), it is free to do so.
Applicability
7. Why does the general conformity rule relieve actions resulting in relatively high de
minimis emission levels while the transportation conformity requires a conformity analysis
for every highway and transit project regardless of their sizes?
A: Under the general conformity rule, conformity determinations are made on a project-by-
project basis. However, in an effort to limit time and resources invested by agencies in
making determinations for thousands of Federal actions annually. EPA included the de
ninirnis levels in the rule to serve as cutoff points to focus on those Federal actions likely
to have the most significant impacts on air quality. In transportation conformity. the
whole transportation plan and transportation program are subject to a conformity
determination. If emissions reductions are required, those reductions should be made at
the program level. As far as the transportation project itself is concerned, the
transportation conformity rule requires only that the project come from a conforming plan.
which could include both projects with significant emissions increases and projects with
4
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emissions decreases, and then that an air quality modeling analysis be conducted locally
at the project level to decide whether the transportation project conforms.
Criteria
8. What constitutes an approved SIP for general conformity demonstration purposes!
A: The SIP that has been most recently approved by EPA should be used in the general
conformity determination process. If a SIP revision has been adopted by a State and
submitted to EPA but has not been approved by EPA at the time of the conformity
analysis, it cannot be used for general conformity determinations. However, a State may
commit to revise the SIP to accommodate the action. En such a case, the State is actually
committing to changing the SIP; whether or not the SIP to be revised has been approved
or not does not become an issue.
9. Which party is responsible for identifying a project in the SIP?
A: States are not usually required to ask Federal agencies to identify specific projects for
inclusion in the SIP. On the other hand, State agencies follow a public process in
developing and adopting attainment demonstrations. The EPA encourages the Federal
agencies to contact the State and local air quatity agencies and notify those agencies of
any projects that need a onformity determination so that they can be specifically included
in an attainment demonstration. This process is a very straightforward method of
determining conformity.
Future Information
10. How is it possible to receive copies of new guidance as it is developed, including
questions and answers documents?
A: Contact your appropriate EPA Regional Office as necessary.
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APPLICABILITY
General
1. How do you decide when a general conformity determination is required?
A: Before any approval is given for an action to go forward, an agency must apply the
applicability requirements to a proposed Federal action to determine if a conformity
determination is required. The applicability analysis can be completed concurrendy with
the NEPA analysis. It probably would occur during the environmental assessment. The
specific timing would be determined by the Federal agency.
2. What is the difference between indirect and direct emissions and what are the implications
of classifying the emissions?
A: Direct emissions are those emissions caused by or initiated by the Federal action and
occur at the same time and place as the action. Such emissions include, for example.
operational emissions of a Federal facility or the emissions from dredging equipment used
in a section 404 permit action. Indirect emissions are those caused by the Federal action.
but may occur later in time and/or may be farther removed in distance from the action
itself. Direct and indirect emissions must be reasonably foreseeable and the Federal
agency must be able to practicably conuol them as part of its continuing program
responsibility. It must also be possible to locate and quantify direct and indirect
emissions at the time a conformity determination is made. The Federal agency is not
obligated to account for possibLe emissions that might result from the Federal action, but
cannot be specifically identified, quantified or located.
3. Can you address the issue of “potential to emit” versus “actual emissions? -
A: Only those emissions from the project that are reasonably foreseeable should be identified
at the time the conformity determination is made (i.e., the location of emissions must be
known and they must be quantifiable). The analyses should consider the greatest
expected level of direct and indirect emissions. Potential indirect emissions that re
possible, but not known and quantifiable, need not be considered.
4. Are the U.S. territories of Puerto Rico and Guam subject to the general conformity rule!
A: There are PM-IC) nonattainment areas in Puerto Rico and SO, nonattainment areas in
Guam. Those territories are treated as States for the purpose of air quality control. Thus.
the general conformity rule does apply in the nonattainment or maintenance areas in these
territories.
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5. How do Indian tribe programs conform? How much should States and EPA budget for
this?
A: The Act includes a section that requires EPA to promulgate regulations and procedures
for treating tribes as States for the purposes of air quality. However, those regulations
have not yet been developed. The general conformity rule applies in all nonattainment
areas. The Bureau of Indian Affairs (BLA) will be responsible for determining the
conformity of its actions in nonattainment areas on tribal lands. Tribes will be involved
through the public participation process.
6. Several States feel that airctaft emissions should not be considered in conformity
determinations because these emissions are part of the planned growth of the area. Do
these emissions need a conformity determination?
A: It is the State’s decision as to whether emissions from aircraft operations are accounted
for in the SIP emissions budget because they are part of the planned growth of an area.
A conformity determination is necessary for any aircraft emissions that are above de
minh,nLc levels, regionally significant, or not otherwise exempt. Inclusion in the SIP
emissions budget is one of the criteria that can be used for demonstrating confomuty after
it is determined that a conformity determination is needed.
7. For a border station, should vehicle traffic that is backed up across the border into Mexico
or Canada be considered ‘in the conformity determination?
A: Since the emissions are generated outside the United States and thus not in a
nonattainment or maintenance area, the rule does not apply to this source of emissions.
8. Assume that condominiums were developed on private land adjacent to d ski resort
project that is on Federal land. Is such development subject to the conformity rules?
A: Generally no, since the Federal agency leasing the land for the ski resort has no control
over the private land. However, if the agency could condition adjacent development on
approval of the ski area lease and did so, then it would have to be considered for
conformity.
9. Which conformity rule would apply to a commuter rail project to be built over leased
tracks?
A: This depends on (I) whether funding or approval under the Federal Transit Act is required
(which would require a conformity determination under the transportation conformity rule)
or whether another Federal agency action is involved (which would be covered under the
general conformity rule); (2) who is leasing the tracks (if a private owner is leasing the
tracks to a private rail company, conformity may not apply); and (3) whether other
Federal approvals (e.g., a section 404 permit) are needed. As a practical matter, if any
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significant number of commuters will use the train, the metropolitan planning agency
(MPO) would include it in its transportation modeling and its effects would be included
in the transportation conformity determination. En some cases, each rule would apply to
different portions of the project.
10. Does grandfathering apply for a project in an attainment area that has been redesignated
nonattainment when anenvironmental analysis had been completed prior to the effective
date of the rule?
A: if a final t EPA analysis has been completed by January 31, 1994, the action is
grandfathered and the rule would not apply. The rule does not specifically address the
case where an attainment area is redesignated as nonattainmenc at some future point in
time after the date of rule promulgation.
11. Will Disney’s Project America be subject to the general and/or transportation conformity
rules if the project uses Federal land and financial incentives from Federal agencies?
A: Any highway or transit projects associated with Disney’s Project America are subject to
the transportation conformity rule if they require funding or approval by the Federal
Highway Administration or the Federal Transit Administration under title 23 U.S.C. or
the Federal Transit Act. The highway improvements associated with the Disney Project
at the present time would be subject to the transportation conformity rule. If any project
occurs at least in part on Federal land, it is subject to the general conformity rule. In
addition, if Federal funding is used, or if any Federal approval is needed [ i.e., a section
404 permit under the Clean Water Act (CWA)], the general conformity rule may apply.
An applicability analysis would be necessary to determine whether a conformity
determination is needed.
Actions Exempt from Conformity
12. Section 93. 153(d)(4) of the rule states that “alterations and additions of existing structures
as specifically required by new or existing applicable environmental Legislation or
environmental regulations” are exempt from the conformity requirements. Would
upgrading of a wastewater facility by the addition of secondary wastewater treatment
facilities in response to the Clean Water Act requirements be subject to the requirements
of the rule?
A: As long as the upgrade did not entail any increase in capacity of the water treatment
facility, the action would not be subject to conformity. However, if the upgrade of the
facility involved an expansion of the capacity, then the expansion would become subject
to the rule.
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13. Does a State NSR or PSD program that may be more stringent than the Federal program
have to be Federally-approved in order to qualify it as an exemption under the conformity
rule?
A: In order for a State NSR permit program to be Federally enforceable, it has to be
Federally approved. Even if a State NSR or PSD program is more stringent than the
Federal NSR or PSD program but is not Federally-approved, then the fact that an activity
receives a State permit is not enough to qualify as an exemption under the general
conformity rule. EPA has to review the State program to ensure that it complies with
Federal requirements.
14. Does rulemaking require a conformity determination?
A: No, rulemaking is exempt from the conformity determination process. Secnon
93.153(c)(iii) states that “rulemaking and policy development and issuance’ are not
subject to conformity.
15. Does a base closure require a conformity determination?
A: If the base closure involves only sale of property, and the military is no longer
maintaining authority over the base, a conformity determination is not required.
Exemption XIX under section 93.1 53(c)(2) of the rule states that “actions (or portions
thereof) associated with &ansfers of land, facilities, title and real properties through an
enforceable contract or lease agreement where the delivery of the deed is required to
occur promptly after a specific, reasonable condition is met, such as promptly after the
land is certified as meeting the requirements of CERCLA. and where the Federal agency
does not retain continuing authority to control emissions associated with the lands.
facilities, title or real properties” are exempt from the conformity process. However. ii
the military leases the base and sets conditions regarding the future use of the base. then
a conformity determination is required.
16. Are emissions from CERCLA’s non-National Priority List (non-NPL) sites exempt from
the general conformity determination?
A: Yes, to the extent that direct emissions from the cleanup activities on non-NPL sites .ire
permitted under NSR or emissions are exempt from other regulations under CERCLA by
the statute itself. Emissions not so addressed, though, are subject to conformity
Although EPA can spend Superfund money only on NPL sites, other agencies. sucn ..is
the Department of Defense, can take action on non-NPL sites.
17. How does the rule apply to wildfire-response time?
A: Responses to wilduires are considered emergency actions and as such are exempted from
the conformity requirements.
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18. The United States, the State of Utah, and Salt Lake City want the 2002 Winter Olympics
to be held in Sak Lake City. If the United States Forest Service (USFS) does not provide
downhill ski slopes, the Olympics must be hosted elsewhere. Can the USFS get an
exemption of the rule?
A: If the USFS was to approve the expansion of an already existing ski resort for the
purpose of hosting the Olympics, this action would be subject to a conformity
determination.
Area Classificcilon
19. How does the general conformity rule apply to nonclassifiable/unclassifiable areas?
A: For ozone and CO purposes, nonclassiflable areas are areas which are designated
nonattainment and are classified as “incomplete data” ozone areas or “not classified’ CO
areas. Because they are nonattainment areas, they are subject to the conformity rule.
Other “unclassifiable” areas are areas which are actually designated “Unclassifiable or
Attainment,” and as such, are not subject to the current general (or transportation)
conformity rule.
20. Does the rule apply to activity that occurs in attainment areas that could impact
nonattainment areas?
A: If an activity in an attainment area causes indirect emission increases within a
nonattainment area, they may have to be analyzed. The current nonattainment rule does
not indicate how this situation should be dealt with. Until EPA issues guidance on this.
or addresses this instance in an attainment area rule on conformity. Federal agencies
should make their own decisions as to how the rule applies to attainment areas with
respect to this scenario.
21. Does the rule apply to Class I areas?
A: If a Class I area is in a nonattainment or maintenance area, then the conformity
requirements would apply. In addition, Class I areas located within a radius of 100 km
from the area where the Federal action is taking place are subject to the public
participation process, and the Federal land manager should be notified of the proposed
action, the draft conformity determination, and the final conformity determination.
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Regional Significance
22. When determining regional significance, ten percent of what emissions should be
considered?
A: The total nonattainment or maintenance area’s emissions inventory should be considered
for the specific pollutant or precursor. Any milestone emissions inventory in the
applicable SIP should also be considered (through RFP, attainment and/or maintenance
demonsuauons).
23. Does the ten percent threshold of regionally significant actions used in determining
applicability include emissions from mobile sources?
A: Yes, all emissions from stationary, area, and mobile sources should be included.
24. What should be done to comply specifically when in a nonattainment area but below de
mininzLc levels?
A: If an action is in a nonattainment area and the total emissions are below de minimis
levels, a determination of whether the project is regionally significant is still needed. If
it is not regionally significant, then the conformity requirements do not apply to this
project based on its projected emissions. No official reporting of de minimis actions is
required. An agency m y choose to keep records, for its own purposes, of de minimis
actions and the reasons for the de minimis classification.
Calculation of De Minimis Levels and De Minunis Determination
25. How can a State track de minimLs increases in the emissions budget monitoring system
if the State does not have access to the Federal agency’s analysis determining that the
action is below de rninimis levels?
A: The rule does riot require the development of a system for tracking Federal actions.
States can obtain the information they need on de minimis increases through NEPA or the
Freedom of Information Act (FOIA); in addition, the ongoing updates of an areas
emissions inventory and transportation model conducted by the MPO will reflect increases
in traffic due to increases in Federal activities.
26. How do we determine de minimis without doing compLicated emissions studies?
A: Historical analysis of similar actions could be used in cases where the proposed projects
are similar in size and scope to previous projects. More complex projects may require
more detailed activity analyses to determine whether emissions exceed de minimis levels.
NEPA analyses may provide the necessary emissions studies. -
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27. Are the de minimis levels calculated as the difference between emissions from the
proposed action and the baseline emission levels?
A: The de minimis levels are established in section 93.153(b) and vary according to the type
of pollutant and severity of the n_onattainment area. These are levels established in the
rule and are consistent for all conformity determinations (unless the State chooses to set
lower de minimis levels and apply the conformity requirements to nonfederal as well as
Federal entities). The calculation of total project emissions is made and compared to
these de minimis cutoffs. If the emissions for a pollutant are above de minimis. the
project requires a conformity determination. jJ, emissions from the project must be
analyzed and found to conform, not only those above the de minimis levels.
28. Are de minimis determinations non-rebuttable?
A: Not all de minimis determinations are non-rebuttable. There are two types of exemptions
under the de minimis process. First, actions with total direct and indirect emissions
actually below the de minimis level [ section 93.153(c)(l)]; de minimis determinations for
these actions are rebuttable. Second, actions that EPA declared as being below de
minimis levels in the final rule (section 93.153(c)(2)]; de minimis determinations for these
actions are non-rebuttable.
29. Can a Federal agency make changes to its proposed action so that its emissions would fall
below de mini mix levels as a way to get around the conformity determination process and
the use of mitigation measures as part of that process?
A: As long as the changes to the proposed action are made up front before the action occurs.
the Federal agency can take measures to reduce its emissions from the proposed action
to in fact be below de minimis levels and, thus, the rule would not apply. The changes
must be State or Federally enforceable to guarantee that emissions would be below de
minimis in the future as well as in the present. This is not “mitigation” under the rule
because the rule does not apply to projects that are below the minimis levels. However.
if the Federal agency cannot bring the emissions from its action to below de mininzis
levels, then it has to go through the conformity determination process. As part of this
process, mitigation measures may be identified. These measures, however, should be
used to reduce the emissions from the action down to zero and not just to below de
mini,nis as is the case when the Federal agency decides up front, before the action occurs.
to reduce its emissions to below de minimis levels. If at any time the emissions from the
project in fact exceed de minitnis levels, the project would be required to have ..t
conformity determination.
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30. Should the emission inventory of the nonattainment area be compared to the project itself
to determine applicability?
A: Emissions from the project should first be compared to the relevant de minimis levels.
If the project is not de minimis, no comparison to the SIP emission inventory is necessary
for applicability purposes (a conformity determination must then be made for the action
because it is not de miflimis). If the project is found to be de minimis, the emissions from
the project should be compared to the SIP emission inventory to determine whether the
project is regionally significant.
31. In a base realignment case where personnel from one base are moved to another base in
the same air quality management disirict, could net emissions be used to determine if the
action is below de mini,nis levels?
A: Yes, as long as both bases are in the same nonattainment area and the Federal action
affects both bases; double counting of emission decreases must be avoided.
32. For ozone, are VOC and NO emissions added to determine if the action exceeds de
minimis levels’!
A: No, each of the ozone precursors should be examined independently of the other.
33. In calculating de minimL? levels for applicability purposes, does the area’s nonattainment
status for one criteria pollutant make the de minimis threshold for other criteria pollutants
relevant?
A: No. The Federal agency must only consider the nonattainment pollutants from the action.
Indirect Emissions
34. How is “control” defined in ‘indirect emissions under the control of the Federal agency’”’
A: ‘Control” means the ability to regulate in some way the emissions from the Federal
action. The ability to regulate may be demonstrated directly such as through the use of
emissions control equipment on a smokestack, or indirectly such as through the
implementation of regulations or conditions on the nature of the activity that may be
established in permits or approvals or by the design ot the action. An example of control
includes the ability of a Federal agency to control the level of vehicle emissions by
controlling the size of the parking facility and setting requirements for employee trip
reductions.
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35. Would emissions to and from a ski recreational area be considered under Federal control?
A: It is EPA’s interpretation that emissions to and from a ski recreational area are considered
under Federal control where the agency has the ability to practically control these
emissions through approval of the project design. For example, the ski resort will have
parking designed to accommodate a specific number of vehicles and/or a requirement for
shuttle buses. The number of lifts provided by the resort will also limit the number of
people that will commute to the resort. However, it is up to each Federal agency to
review its own unique legal authority and determine what emission-generating activities
it has the ability to control.
36. If 2,000 new office jobs are established at a location with existing office space, must the
emissions from the 2,000 commuters be considered in a general conformity determination
if the emissions are above de minimis levels?
A: Emissions from commuters are indirect emissions which must be considered in a general
conformity determination. However, one way to demonstrate general conformity is to
consider the action as part of a conforming transportation plan and TIP (according to the
transportation conformity rule). The transportation plan and TIP’s conformity
determination ‘is often based on transportation modeling which makes assumptions about
employment levels, based partly on an area’s available office space. If it can be shown
that the transportation plan and TIP’s conformity determination was based on modeling
which assumed a level of employment that accounted for the 2,000 new jobs (e.g., the
model assumed maximum utilization of existing office space and corresponding
employment), the emissions resulting from the commuters could be considered to satisfy
the general conformity test.
37. Are vehicle emissions generated from Federal employees commuting to their work place
assumed to be reasonably foreseeable?
A: Yes.
38. In the case of base realignment where personnel from one base are moved to another, is
the Federal agency accountable for emissions from personnel commuting to the new base?
A: The preamble to the rule indicates chat employee trips to and from a Federal project are
to be included in the emissions calculations. The Federal agency can impose measures
that may affect the emissions from such nips. Consequently the agency ha. the dbllicy
to control these indirect emissions and they should be considered for conformity purposes.
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39. A Federal property is developed by a private developer. The property was transferred to
the private developer by deed and only a small portion of the property remained under
Federal control. Is the Federal agency responsible for the emissions from the private
development, specifically non-Federal employee vehicles and consniicuon emissions?
A: The Federal agency is only responsible for the emissions that occur on the portion of the
land that remained under Federal control. The Federal agency therefore may not be
responsible for the emissions resulting from the private development since the land was
transferred to the developer by deed.
40. Do emissions produced by a contractor providing goods and services to a Federal agency
qualify as indirect emissions?
A: Emissions from a contractor qualify as indirect emissions if the contractor is located at
the Federal facility on Federal land. However, if the agency is buying goods and services
that are produced at the contractor’s facility, the situation becomes one of Federal
procurement. During the rulemaking process, the agencies could not reach a consensus
on this issue. The preamble to the rule indicated that there will be future rulemaking that
will cover procurement. Until then, the Federal agencies are to interpret the rule as they
choose.
Bubbling Activities
41. Are bubbling activities allowed under the conformity rule?
A: If both actions are in the same nonattainment area, the emissions decreases from one
action could be used to offset the VOC or NO emissions increases from the other action.
If two different agencies have responsibility for those separate actions, both agencies
must commit to offsetting the emissions increases and these commitments must be
federally enforceable.
42. Are bubbling activities and emissions offsets from two different activities allowed under
the conformity rule if the two activities are not occurring within the same time frame?
A: Offsets have to occur at the same time as the emission increases for which the offsets are
necessary (e.g.. emission increases from base realignments cannot be offset with errus ion
reductions that would occur from future base 1osures unless the actions were timed in
such a way so that there is no increase in emissions at any time). For more information.
refer to EPA’s Economic Incentive Program Rules.
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Segmentation
43. Could a project be broken down into segments so that each segment would be below de
minimis levels when the project as a whole exceeds the de minimis levels?
A: No, all reasonably foreseeable emissions must be included for the project as a whole in
determining applicability. However, if there are emissions from a project that are truly
not foreseeable, then a Federal agency may be able to claim that their action is below de
minimis levels and therefore exempt. If a person or agency believes that the Federal
agency is not being forthright in their calculation of total emissions, then that information
could be requested under the Freedom of Information Act. Once any emissions become
foreseeable, a conformity determination would be necessary.
44. If a military base is leasing portions of its land to both city and private developers for
various purposes, including landfills, wastewater treatment, and mining operations, must
all emissions from the activities be considered for conformity purposes?
A: All the emissions from activities that are part of the lease should be considered. For
example, in the case of the wastewater treatment plant, all emissions from the plant are
considered direct emissions. Emissions from sanitation trucks entering the facility are
considered indirect emissions. Where all the activities occur as part of one project. all
reasonably foreseeable emissions must be considered in one conformity determination.
45. Regarding Federal land management plans that include more than one planned burn.
would the conformity rule’s de minimis levels apply to each burn or to all burns together
as addressed in the land management plan?
A: To the extent that emissions from all or some of the burns were reasonably foreseeable
at the time the plan was developed, the cumulative effect should be considered. However.
if emissions from certain prescribed burns were not reasonably foreseeable at the time the
plan was developed, then each of those burns would have to be compared separately to
the de minimi.s levels once the emissions become foreseeable to determine whether a
conformity determination is required at the time the individual Federal actions are taken.
Enforcement
46. Since de niinimis actions require no documentation, how does EPA monitor the Federal
agencies to ensure that abuses do not occur?
A: A conformity determination is a requirement that is imposed on the Federal agencies by
the Clean Air Act. They must make their own determination according to the criteria
outlined in the rule promulgated by EPA. Although documentation of de irnmmis
determinations is not required, EPA will undoubtedly be reviewing some actions of
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particular environmental interest. Moreover, as with any other Federal requirement,
agencies are subject to litigation from and examination by interest groups. Finally, even
though the conformity rule does not require documentation of de minimis decisions, the
disclosure requirements of NEPA may.
Following the adoption by States and the approval by EPA of SIP revisions, both States
and EPA will have enforcement authority. For more information on State policy options
on this issue, refer to question 8 in the State Agency Concerns section.
Applicability to Prescribed Burning
47. Would prescribed burning programs at historical acreage and fuel levels (no increase) be
considered de minimis?
A: Paragraph “c” of the applicability section covers ‘continuing and recurring activities such
as permit renewals where activities conducted will be similar in scope and operation to
activities currently being conducted.” If the prescribed burning program is an ongoing
program of a set number of acres per year in the same general geographic area, an action
to continue the program at or below the existing level would be considered per se de
rninimis under section 9l.853(c)(2)(ii) of the rule and would be exempt from the
conformity rules. Shoul4 a conformity determination be required, paragraph (5)(C)(iv)
of section 93.158 of the rule allows conformity determinations to be based on the finding
that the activity is occurring at baseline levels. However, if there are prescribed burning
goals in a land management plan without a specific program of ongoing burns, or if the
burns occur in a different geographic area, it may be questionable whether the action is
continuing or recurring, or whether the Federal agency will be re-initiating an action
previously terminated for some reason. In addition, if the annual acreage goal exceeded
the historic average goals, the action is not automatically de minimis and emissions from
the burns should be compared to the rule’s de minirius levels to determine if a conformity
determination is required.
48. If a prescribed burn is approved and permitted by a State agency, must a separate
conformity determination also be made by the Federal agency 1
A: If the prescribed burn results in emissions above de minimis levels, a conformity
determination would be required by the Federal agency even if the State agency made a
separate determination. One of the criteria that Federal agencies can use as a basis for
a conformity determination is inclusion of the activity in the SIP if the SEP is approved
or promulgated by EPA. If a State agency’s approval is pursuant to the requirements in
the SIP, and emissions are accounted for in the attainment demonstration. the Federal
agency can make its own conformity determination on that basis.
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49. Is a conformity analysis required where emissions from an activity occur in a different
season than the season during which the NAAQS of the relevant pollutant is violated?
(For example, prescribed burning in the summer results in PM- 10 emissions, but the
PM- 10 24-hour air quality standard is violated in the winter.)
A: A conformity determination is required for any non-exempt action in a nonattainment
area. However, if the attainment demonstration indicates that the air quality analysis çor
all seasons shows that 24-hour air quality violations are expected to occur in the winter
only and the analysis notes that prescribed burning in the summer has been considered
as part of the SIPs attainment demonstrations, then a positive conformity determination
can be made provided that the analysis in the State’s demonstration accounts for and
includes the magnitude of prescribed burning proposed by the Federal land manager.
Specifically, the preamble to the general conformity rule states that “if a burn occurs
during a time of year when a nonattainment area does not experience violations of the
NAAQS and the applicable SIP’s attainment demonstration specifically reflects that
finding, then such a burn may be determined to conform pursuant to section
93.158(a)(1).” However, if the SIP does not account for the burning and the proposed
burning emissions are above the rule’s de niinimis levels, then the Federal land manager
must determine conformity through one of the rule’s other conformity criteria.
50. How does the rule apply to prescribed burns in land management plans?
A: If prescribed burns are included in a conforming land management plan, then individual
conformity determinations are not required for the individual burns. However, in order
for positive conformity determinations to be made at the land management plan level, the
location of the burns in the nonactainment area must be known and their emissions must
be quantifiable.
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CRITERIA FOR CONFORMITY DETERMINATION
General
1. Are there/will there be any additional guidance or emphasis on determination of
conformity in maintenance areas?
A: The criteria for determining conformity in maintenance areas established under the rule
are identical to those for nonattainment areas.
2. How do you determine which conformity criteria in section 93.158(a) to use!
A: It is up to each Federal agency to decide on the appropnate criteria, given the type of
emissions (i.e., pollutant) and availability of options for the particular area. Clearly, the
simplest way of demonstrating conformity is for the project emissions to be included in
the StP demonstration or the emissions budget. However, these may not be options in
the nonattanment area where the Federal action is occurring. In such situations, it is
incumbent on the Federal agency to determine other means of demonstrating conformity.
It is advised that the Federal agency consult with the State and local air officials early in
the conformity decision-making process to determine the appropriate criteria to use and
to assure that the most up-to-date models, emission factors, and population estimates are
being used.
3. Must a Federal agency determine conformity by only one of the criteria listed in section
93.158?
A: No, a combination of criteria may be used to get a project to conform.
4. How is conformity determined on tribal lands?
A: An action requiring a conformity determination should conform to the applicable Tribal
Implementation Plan (TIP). If a TIP does not exist, the action would have to conform
to the applicable S [ P.
Baseline Emissions
5. To determine a net increase in emissions, a baseline level of emissions is required. How
do you determine the appropriate baseline level? What time frame should be used to
determine baseline year?
A: For purposes of section 93. 158(a)(5)(iv), where EPA has not approved a revision to the
relevant SIP attainment or maintenance demonstration since 1990. the baseline emissions
reflect the historical activity levels that occurred in the geographic area affected by the
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proposed Federal action during one of the following: (1) calendar year 1990, (2) the
calendar year that is the basis for the designation (or where the designation is based on
multiple years, the most representative year,), if a designation is promulgated in 40 CFR
part 81; or (3) the year of the baseline inventory in the PM-l0 applicable SIP.
6. Are Federal agencies required to use the calendar year 1990 whenever possible!
A: The rule allows the agencies to choose between 1990 and the calendar year(s) that was
(were) the basis for designation, or the year of the applicable PM-b baseline inventory.
7. Should a determination proceed if an approved SIP is not available and very little baseline
information is available?
A: Where EPA has not approved a revision to the relevant SIP attainment or maintenance
demonstration since 1990, the total of direct and indirect emissions from the action for
the future years may be compared with the baseline emissions as described in section
91. 158(a)(iv)(A) and (B). Lf the base year activity data are not credible, then another
option should be used to show conformity.
8. In section 93.1 58(a)(5)(iv), how is “most representative year” defined in “where the
classification is based on multiple years, the most representative year...?” Can the average
of multiple years be used as the most representative year or should one of the multiple
years be used as the most representative year?
A: The rule does not specify how the Federal agencies must define “representative.” The
Federal agencies may provide their own interpretation of “most representative year’ in a
way that does not conflict with the provisions of section 93.1 58(a)(5)(iv) or with the
preamble to the March 15, 1993 proposal.
Emission Offsets
9. In military base realignment, our experience has been that there is no particular way ot
offsetting CO emissions, How could military bases be realigned without a practical
solution to the CO problem in CO nonattainment areas? What background concentrations
should be used?
A: CO offsets from large stationary sources should also be considered. In some t’ es.
offsets would not be needed; (e.g.. where CO is determined to be a problem at the local
area level only.) If no offsets/mitigation measures are available and dispersion modeling
shows that the realignment will cause or increase the severity of CO violations, a positive
conformity determination cannot be made. However, the Depaitmeni of Defense (DOD)
may get a commitment from the State to revise the SIP. Available CO mitigation
measures may include measures to reduce commuting (i.e., ride-sharing, flexible work
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hours, vanpooling, free transit passes, parking surcharges, telecommuting, etc.), the use
of alternative fuels, vehicle scrappage programs, and more stringent I/M programs.
For background CO concentrations, EPA’s modeling guidelines recommend the
application of the Urban Airshed Model. Local and State air quality agencies and EPA
regional offices can also provide information on appropriate background concentrations.
10. Since Federal actions must not cause or contribute to any violation of the NAAQS, can
a Federal project that contributes to short-term NAAQS violations but offsets these
exceedances in the long-term go forward?
A: Ef the project is contributing to a new violation of the NIAAQS or it is increasing the
frequency or severity of existing violations, it does not conform, regardless of when these
violations take place.
11. Are offsets always accompanied by a SEP revision?
A: EPA does not require that offsets be accompanied by a SIP revision. The preamble to
the general conformity rule states that all offsets must be quantifiable; consistent with the
applicable SIP attainment and RFP demonstrations; surplus to reductions required by. and
credited to, other applicable SIP provisions; enforceable at both the State and Federal
levels; and permanent within the time frame specified by the program.
12. If an action results in emissions that are above de mini,nis levels and the offset criteria
of the rule were to be used to determine conformity, should all the emissions from the
action be offset or just those emissions that are above the de minimis levels?
A: The offset provision in the rule applies to all the total net increase in emissions from the
action for a particular criteria pollutant. Emissions should be offset so that there is no
net increase in emissions from that action. It is not enough to offset emissions to the de
minimis levels. For more information on offsets and bubbling, refer to questions 41 and
42 of the Applicabithy section.
Emission Budgets
13. For general conformity, could the emissions budget be treated as official even before a
SIP has been approved by EPA?
A: No, the rule refers to the applicable SIP. Thus, in order to rely on the emissions budget.
EPA must approve an area’s RFP plan or attainment or maintenance demonstration after
1990.
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14. How can a conformity determination be made in 1994 knowing that a Federal
Implementation Plan (FIP) is coming up in 1995?
A: Conformity determinations which are based on a SIP budget must use the approved
budget which is in place at the time, even if a new budget is forthcoming. -After a FIP
is imposed, the conformity determination can be made comparing the action to the FTP
budget to make a positive conformity determination. If there is no approved attainment
demonstration developed by the State or no final FIP attainment demonstration, then the
action would have to be shown to conform using a criteria that does not rely on an
emissions budget.
15. How are emissions budgets created 7
A: It is up to the State to estabLish an emissions budget for each criteria pollutant in a
nonattainment or maintenance area. The budgets should include emissions from
stationary, mobile, and area sources and there should be a means of tracking project
emissions and allocating the budget by the State. EPA is currendy working on
developing additional guidance in this area.
16. How can emissions budgets apply to the Coast Guard?
A: Once a State has an emissions budget for the criteria pollutants in a nonattainment or
maintenance area, the Coast Guard, or any other affected Federal agency, could apply to
the State to use part ot the budget to accommodate the emissions from the agency’s
project.
17. If a Federal project’s emissions were not specifically accounted for or identified in the
SIP, can the State commitment approach under section 93.158(a)(v)(i)(B) be used? If the
answer is yes, then why can a Federal agency not use a SIP budget that specifically
accounts for or identifies the project even if the SIP budget had not yet been approved
by EPA?
A: A Federal agency can use a SIP budget that specifically accotints for or identifies the
project even if the SIP budget had not yet been approved by EPA only if the State meets
the requirements of the commitment listed in section 93.158(a)(5)(i) to ensure that the
emission reductions occur before the Federal action proceeds.
Construction Activities
18. If construction activities together with other emissions from a project exceeded de minirnis
levels and a conformity determination is required. could construction emissions be offset
on a temporary basis?
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A: Yes, because such offsets would satisfy the requirement that no net increase in emissions
will occur during the time period in which emissions would occur.
19. Should short-term emissions associated with the construction of a Federal project be
included in the emissions calculations for the purpose of a conformity determination?
A: Yes, temporary emissions are not exempt from general conformity. However, these
emissions only have to be accounted for (e.g., through offsets, or mitigation) during-the
construction phase and not over the dine frame of the project.
Emissions Calculation Procedures
20. How does the Federal agency calculate emissions? Should the methodologies used in the
State’s SIP be used?
A: Section 93.159 of the rule lists the adopted guideline documents that should be used in
calculating emissions. Methodologies used in estimating emissions for conformity
determinations should be consistent with the methodologies used in the development of
the SIP to the extent possible. Where there is a conflict, the documents listed in section
93.159 should generally be used since they are expected to be the most accurate.
Emissions Spec!fied in SIP
21. Could you apply section 93.1 58(a)( 1) in combination with any of the provisions of section
93. 158(a)(5) to determine conformity?
A: Yes, since the rule reads “For any critera pollutant...” This language clearly means, for
example, that if a SIP has accounted for all of the ozone emissions from a project, then
the project is in conformity for ozone. Other criteria may be used to show conformity
for other emissions.
22. If a State’s smoke management plan is specifically identified in a SIP by name, would
emissions generated from this management plan be included in the SIP?
A: If the SIP references a smoke management plan by name the SIP states that emissions
from this management plan are accounted for in the attainment or maintenance
demonstration the smoke management plan is an enforceable measure, then the SIP
could be used to determine conformity. However, if the plan is mentioned in the SIP
without accounting for emissions from the burns, then the SIP could not be used to
determine conformity.
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23. For a positive conformity finding, project emissions can be accounted for in the applicable
SIP. Does this mean that if a State accommodates a Federal action in its attainment
demonstration plan, that Federal action cannot proceed until EPA approves the SIP?
A: If the Federal agency chooses to use the SIP option for demonstrating conformity, then
it must wait until the SIP is approved. However, the rule includes other criteria that can
be used separately or in combination in order to make a positive conformity
determination, including a written commitment to change the SIP in the future pursuant
to section 93. 158(a)(5)(i)(B) of the rule; the commitment option does not need prior EPA
approval. If a State commits to revise its SIP to accommodate the emissions from a
Federal action, the additional emission reductions the State commits to must occur before
the Federal action proceeds.
State Commitment
24. If a State commits to revise the SIP to accommodate a certain project but fails to do so,
could sanctions be imposed on that State?
A: Yes, such a scenario is treated as a “SIP call” under section 1 IO(K)(5) of the Act, where
the State acknowledges that the SIP is inadequate (93.158(a)(5)(i)(c))(58 FR 63258). A
SIP call is an enforceable process; however, the statute allows EPA to set the deadline
for a State to submit a revised SIP in response to a SIP call, provided it is within I
months. For conformity determinations, EPA has set a SIP submittal deadline of no later
than 18 months, or sooner if a State commits to revise the SIP in a shorter period of time.
If the State fails to revise the SIP by the scheduled date, the mandatory sanctions process
begins by EPA making a section 179(a) finding that the State failed to submit a SIP in
response to the SEP call. Under section 179, if the State does not submit a complete plan
to EPA within 18 months of the finding, then one of the two sanctions available applies.
as selected by EPk If the deficiency is still not corrected six months later, then the
second sanction applies. Two sanctions are available: a 2-to-I emission offset sanction
and a highway finding sanction. EPA will provide an opportunity for public comment
before applying mandatory sanctions in response to a State’s failure to respond to a SIP
call.
Mitigation
25. If mitigation measures were to be applied, should they result in emissions reductions to
the de minimis levels or should the action be mitigated so that there is no net increase in
emissions?
A: Once it has been determined that a conformity determination is needed because emissions
from the Federal action e eceed de minimis levels, mitigation measures, in combination
with emissions offsets, if selected as the conformity criteria option, should result in no
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net increase in emissions rather than just reducing the emissions to the de minimis levels.
Alternatively, where a Federal action includes in its project definition sufficient emission
reduction measures so that the Federal actfon is below de minfrnis levels, then the action
does not need a conformity determination provided such reduction measures are in place
at the time emissions result from the project so that the action is in fact de minimis at all
tunes.
Enforcement
26. What happens if emissions are above de minimis levels and an agency still proceeds or
must proceed with an action?
A: The rule states that an agency is prohibited from proceeding with an action if it is above
de ,ninimis levels and does not conform to the applicable implementation plan. If the
agency proceeds with an action and the action does not conform, the agency would be
subject to citizen’s Suit and the penalties imposed by the court. In addition, following
State adoption of the conformity rules into their SIPs, such agency actions could be
subject to State enforcement actions which may include, for example, a $25,000 per day
fine.
Air Quality Modeling
27. When is modeling appropriate for a conformity determination?
A: If the emissions budget and the SIP attainment demonstration options do not au.ount for
the project emissions, then the Federal agency might consider using air quality modeling
to demonstrate conformity for CO. PM-lO, SO 2 , and lead. The appropriate model will
depend on the type of pollutant and specific situation. The local and State air agencies
should be consulted when selecting applicable air quality models.
Water Projects
28. How do sewage plants conform?
A: If the action involves a regional wastewater project and the project is sized to meet only
the needs of population projections that are in the applicable SIP, then the project
conforms. However, if the current population projections used for the project are greater
than those in the approved SIP, then one of the other criteria must be used to demonstrate
conformity.
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PROCEDURES
Public Participation
1. Must the applicability analysis be made public?
A: - If the proposed action was found to result in emissions below tie nunimis levels or if a
conformity detennination is not required, then it is not obligatory to make the
applicability analysis public under this rule. However, if a draft conformity determination
is made and the applicability analysis is requested, it must be made available. En any
case, the public is free to request and the Federal agency is obligated to provide the
applicability analysis under the Freedom of Information Act. NEPA’s disclosure
requirements may also require publication of the information supporting the applicability
analysis, even if the conformity rule does not.
2. Does the rule exempt classified projects from the public participation and reporting
requirements?
A: The rule does not provide for such exemptions. However, according to the rule, Federal
agencies can develop their own list of exempt actions pursuant to procedures in the rule
(sections 93.153(f) and (g)]. Although exempt actions are not subject to public
participation requirements, exempt actions created by Federal agencies are only presumed
to conform and could be rebutted by any interested party.
3. If a national forest has 15-20 prescribed fires planned, would they have to go through
public involvement procedures for each?
A: If they could predict to the level of the nonattainment area the location of the burns, they
could group those reasonably foreseeable emissions together, and conduct one publi
participation process. However, if the emissions from the burns were not reasonably
foreseeable, a separate public participation process would have to be conducted at the
project level.
4. When must the public participation process and requirements be addressed?
A: The public participation requirements must be fulfilled once it is determined that the
emissions from an action are above tie minimis levels or are regionally significant md
conformity determination is required. The draft conformity determination must be made
public and the procedures in section 93.156 must be followed.
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Recurring Actions
5. How often should recurring actions that require a conformity determination be reviewed?
A: Revision of a conformity determination is not required if the recurring action fits within
any of the exempt categories listed in the rule, such as recurring activities with no
increase in activity levels, as described in section 93. 1537(c)(2)(ii).
Inter-Agency Issues
6. Is there a conflict-resolution process in the conformity rule?
A: No, but Federal projects cannot be implemented unless all the agencies with jurisdiction
over the project find the project to conform.
7. What stimulus and procedures are available for developing an inter-agency review
committee?
A: The stimulus for inter-agency review is the fact that without the agreement of all parties
with jurisdiction over the project, the project cannot go forward. Procedures for inter-
agency review are not provided for in the conformity rules. However, agencies may
choose to adopt a NEPA-like review process where one agency is designated as the lead
agency and the others are cooperating agencies. Nonetheless, all agencies must make
their own conformity determinations.
8. What is the difference between “adopting an agency’s analysis” and “an agency making
its own determination?”
A: If a Federal action is subject to the conformity rule, the Federal agency must decide
whether a conformity determination should be made. For example, if two different
Federal agencies have jurisdiction over the same Federal project, one agency cannot rely
on the fact that the other agency made a positive conformity determination and forego
making its own conformity determination. If one agency makes a positive determination.
the other agency should either go through its own conformity analysis and make its own
conformity determination or choose to adopt by reference or other means, the analysis.
assumptions. and conclusions made by the first agency, as long as this analysis includes
the enare scope of the project. If each of the agencies has jurisdiction over part.s of the
emissions from that action, then each agency must complete its own analysis and make
separate conformity determinations for the portion of the action over which it has
responsibility.
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9. In a lease action of an Air Force base (AFB), what agency is responsible for making a
conformity determination?
A: If the Air Force leases the base and maintains a continuing authority over the base
through the lease, then the Air Force must make a conformity determination for the
actions that will occur on the base as a result of the lease. In addition, if another Federal
agency supports the activity (or a portion of it), it too must make a conformity
determination for that portion of the activity for which it is responsible. For example, if
the base is leased to a local municipality for aviation activity requiring an FAA permit,
both the FAA and the Air Force would be required to make conformity determinations.
It is possible that only a portion of the base may be leased for a specific activity, such
as a municipal solid waste neatment plant. In this instance, the Air Force would be
responsible for making a conformity determination for the direct and indirect emissions
associated with the plant.
Exemptions from the conformity requirements for the lease of a military base apply as
stated in section 93.1 53(c)(2)(xix) of the rule for lease agreements “where the delivery
of the deed is required to occur promptly after a specific, reasonable condition is met.
such as promptly after the land is certified as meeting the requirements of CERCLA, and
where the Federal agency does not retain continuing authority to control emissions
associated with the lands, facilities, title, or real properties.”
Reporting Requirements
10. What are the requirements of notification of de mini mis decisions.
A: There are no reporting requirements for actions determined to be de minimis.
11. How can States have access to analyses of de minimis projects and other non-applicable
projects (in order to see if segmenting is occurring, in order to track the emissions)!
A: States can request whatever documentation exists through the Freedom of Information
Act. In addition, the State may choose, as a matter of policy, to require Federal agencies
to report the emissions from all projects as part of the State procedures necessary to
receive an allocation of an emissions budget or in order for the State to commit to
revising the SIP to accommodate a project.
12. Does the draft conformity determination have to be described in the newspaper notice or
just an announcement of the draft determination made?
A: The nature of the action and the draft determination must be described.
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MITIGATION
Implementation of Mitigation Measures
1. Before a final conformity determination, should the mitigation measures be in place or
should they be merely identified? Is there a reasonable time frame?
A: Mitigation measures need not be in place, but it is also not sufficient to merely identify
them. Section 93.160 requires the process for implementation and enforcement to be
described, including an explicit implementation schedule; written commitments for
mitigation; and conditions on the approval of the action requiring implementation of the
mitigation measure. Mitigation measures should be in place before emissions from the
project start.
2. What happens if a Federal agency fails to complete or implement the mitigation measures
identified as part of its general conformity determination?
A: Mitigation measures identified as part of the approved SIP conformity determination
process become SIP requirements and traditional SIP enforcement tools will apply
regardless of what party committed to mitigate.
3. If mitigation measures identified as part of a conformity detennination were altered or
changed after the determination was completed, would a new determination be required?
A: If the new mitigation measures are replacing previous ones that cannot be implemented.
and they continue to support the conformity determination by resulting in an equal or
better emissions reduction and air quality improvement, then a new conformity
determination is not necessary. However, any changes in mitigation measures are subject
to the reporting and public participation requirements of the rule (section 93. 160(e)).
Indirect Emissions
4. How could indirect emissions be controlled?
A: It would depend on the nature of the indirect emissions. If, for instance, the indirect
emissions were from vehicle emissions coming to the site, it would be possible to control
indirect emissions by such things as design of the size and location of parking facilities,
shuttle buses, or parking fees. If permits or approvals were required for activities that
would result in indirect emissions, they could be conditioned on meeting certain
emissions-limiting criteria. It is up to the Federal agency to examine each situation for
the most reasonable means of limiting emissions that would be under the at ency’s
control. -
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TRANSPORTATION CONFORMITY
Relationship of Transportation and General Conformitj
How do the transportation and general conformity rules work together?
A. If the action (or portion of it) is subject to the transportation conformity rule, then the
action (or portion) is presumed to conform. If the action (or portion of it) is not subject
to the transportation conformity rule but is specifically included in a current conforming
transportation plan and transportation improvement wogram (TIP), then documentation
of this is sufficient to determine that the action (or portion) conforms under the general
conformity rule. However, any project emissions not accounted for under the
transportation conformity regulations would have to be analyzed according to the
requirements set forth by the general conformity rule. As an example, if an airport
expansion had been planned and emissions from vehicles commuting to and from the
airport were already estimated and incorporated into the transportation plan and TIP and
found to conform, these emissions would not have to be re-analyzed under the general
conformity requirements. However, once vehicles enter the airport area, new emissions
from vehicles picking up and discharging passengers, from shuttle buses, and parking lots
and aircraft emissions would have to be considered under general conformity as new
emissions of the airport expansion project.
2. What is EPA’s position on a State choosing to include airports, for example. under
transportation conformity rather than general conformity?
A: Emissions resulting from commuting to and from the airport may be considered through
the transportation conformity process. However, any eniissions associated with the airport
itself will have to be considered as part of the general conformity determination. Non-
highway or transit emissions cannot be covered by EPA’s transportation conformity rule.
3. Should commuters to and from a new office location be considered in transportation
conformity? Would redistributing trips be considered in an existing transportation plan?
A: The MPO should be able to answer this question after it examines the conformity analysis
done for the transportation plan and TIP. When transportation activity is modeled for the
purpose of transportation conformity, the modeling process estimates trips that are
generated due to office buildings, retail space, etc. If the modeling process considers the
new office building, then no modeling is needed for the purpose of general conformity.
Nevertheless, the general conformity determination nmst document that the emissions
have been accounted for in the existing transportation plan and TIP. If the modeling does
not consider the new office building, then new transponauoc. modeling should be
completed and the estimated emissions should be accounted fir i i the general conformity
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determination. There must be evidence that the employment assumptions in the MPO’s
transportation model included the new office location.
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STATE AGENCY CONCERNS
State Conformity Rules
I. Can a State adopt the general conformity rule into its SIP by reference?
A: Yes, if under State law, the adoption procedure is legally enforceable and this procedure
is in compliance with other State rulemaking procedures.
2. Does the rule allow a State to develop conformity rules that are more stringent than the
Federal rule?
A: The State conformity rules can be more stringent than the Federal rule only if they are
applied equally to Federal and non-Federal actions. If a State elects to make one (or
more) aspect(s) of the rule more stringent, the entire rule with all its requirements must
apply to non-Federal as well as Federal entities.
3. Can a State apply more stringent conformity requirements to a particular type of action
without having to apply the entire conformity rule to all non-Federal entities for all
actions?
A: A State may elect to apply more stringent conformity requirements to a particular type
of activity with the following caveats: the activity must be one that is performed by some
non-Federal entities and the rule must then apply to all the non-Federal entities that
perform the activity. For example, if prescribed burning is conducted by Federal. State.
Local, and private entities, then more stringent conformity requirements may be applied
to prescribed burning actions, as long as j Federal and non-Federal parties (i.e., State.
local, and private) are required to make conformity determinations for such actions.
4. Can a State adopt the Federal conformity rule without revision?
A: Yes, there are no requirements in the rule for the States to develop conformity rules with
additional provisions beyond what is presented in the Federal rule. Therefore, if a State
chooses, it can adopt EPA’s rule wholesale.
5. Can a Stat&reduce the de minimis levels required for conformity determinations!
A: The rule has a provision for State stringency which would allow more stringent measures.
e.g., lower de minimis levels, than is proposed in the Federal rule, but only if these
measures as well as all other rule requirements were applied to both Federal and non-
Federal entities.
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Enforcement
6. At what point or points are the Federal Agency’s actions subject to court challenge?
A: Generally, a court challenge can start after a final conformity determination is made.
7. What legal recourse does a State have if a Federal agency does not implement the
mitigation measures identified in its conformity determination?
A: The legal recourse depends on what a State establishes in its general conformity rule.
The general conformity rule requires a SIP revision that a State can enforce, but each
State can choose its own enforcement mechanisms. Aside from what a State establishes
in its SIP revision, the rule does not provide the States with any special authorities for
enforcement.
8. EPA has made the statement that it is not an enforcer of the conformity rule. To what
extent does a State have to develop enforcement provisions?
A: The SIPs that States should submit for EPA’s approval must be enforceable by those
States. EPA has the authority under section 113 of the Act to enforce any rule that was
promulgated by EPA under the Act. Once a SIP is approved by EPA, it becomes
enforceable under section 304 by citizen suits. (While EPA is unlikely to bring
enforcement action against other Federal agencies, there may be instances where EPA
may enter into a Federal Facility Agreement with an agency in an attempt to alter that
agency’s operating practices.) For more information, refer to .question 46 of the
Applicability section.
9. What recourse does a State have if it does not agree with a certain conformity
determination?
A The State can enforce the SIP conformity requirements.
10. Does EPA expect the States to enforce the rule?
A: Upon adoption of SIP conformity rules, States need to have the authority and resources
to enforce their regulations. This is one of the requirements for the approval of a SIP.
The State decides whether and how to actually enforce regulations.
11. Do the States have the authot ty to implement their regulations over Federal facilities?
A: Yes, section 176(c) requires EPA to promulgate a rule establishing criteria and procedures
for Federal agencies to use in demonstrating conformity of their actions. States are then
required to incorporate conformity rules in their SIPs. Any State rules must he
enforceable by the State in order to be approved by EPA into the SIP. Federal agencies
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must comply with all SIP requirements, including State regulations, under section 118 of.
the Act.
Rule Implementation and Conformity Review
12. Who will review the different conformity SIPs and who will be in a position to provide
continuing guidance on conformity issues?
A: Conformity SIPs will be reviewed and approved or disapproved by EPA. Questions
relating to general conformity should be addressed to the EPA regional offices.
13. When completing a conformity determination, who should the Federal agencies consult
first?
A: Federal agencies should first work with the State/local air agencies to obtain the
applicable emission factors and attainment emission inventories (for regional significance
determinations) necessary to determine applicability, and the MPO’s to obtain any u affic
or demographic data needed for the analysis. Agencies are not required to notify EPA
until the draft conformity determination has already been completed, unless non-EPA
approved and published emission factors or modeling techniques are to be used.
However, agencies should feel free to contact the regional offices at any time during the
conformity process.
14. How will EPA and the States coordinate the implementation of conformity?
A: Each State must develop its own conformity SIP which it will submit to the regional EPA
office for review and approval. The EPA regional offices will be available to both the
Federal agencies and the States to answer questions on individual conformity
determinations and provide general guidance.
- Criteria
15. If a State’s conformity SIPs are not to be submitted until November 30, 1994, what
criteria can conformity determinations be based on in the meantime?
A: Section 93.151 of the general conformity rule addresses this issue. Once a revsed SIP
that includes conformity rules is submitted and approved by EPA, State rules can be
applied. Until EPA approves the State rules, the Federal rule at 40 CFR part 93 should
be applied. If only part of the State rules are approved, those parts can be applied:
Federal conformity regulations would continue to apply only for the portion. if any, of
the State’s conformity provisions that is not approved by EPA.
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16. If a Federal action has been regularly occurring for over ten years, but the State’s
emissions inventory and SIP have not previously accounted for the emissions from this
action due to an oversight, should this action be considered an ongoing activity requiring
a SIP revision, or is this action considered a new source?
A: Inclusion in or exclusion from the SIP has nothing to do with whether an activity is
ongoing or whether an action can be exempt from conformity under section
93.153(c)(2)(ii) of the rule. This is determined by the nature and extent of the activity.
If it has not been included in the SIP, this does not require a SIP revision or a finding
that this is a new activity; it merely means that the option of demonstrating conformity
through inclusion in the SIP cannot be used for a conformity determination where one is
required.
17. Are States required to make a determination about whether a Federal action exceeds an
emissions budget?
A: If a Federal agency wants to use the emissions budget test as a means of demonstrating
conformity, then the Federal agency would so request; the State is not required to make
a determination about whether the action exceeds the emissions budget for the
nonattainment pollutants. In addition, there is nothing in the rule that automatically
requires States to identify emissions budgets for criteria pollutants which exist in SEP’s
or allowable emissions. Without State-established emissions budgets, however, it would
not be possible for a Federal agency to use this option to demonstrate conformity. All
SIPs have source specific allowable emissions, but SIPs do not in all cases identify
specific areawide emissions budgets.
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CONFORMITY DETERMINATION AND NEPA
Regional Significance
1. If emissions from an action are regionally significant, does such an action irigger a
significant impact under NEPA?
A: Not necessarily, since the definition of regionally significant in conformity applies only
in this context and is not the same as the NEPA definition. NEPA requires an
Environmental Impact Statement for major Federal actions significantly affecting the
quality of the human environment. However, finding that emissions from an action are
region 11y significant under the conformity rule may indicate that the project also has
significant impact under NEPA.
Interface Between Conformity Rule and NEPA
2. Can a conformity determination for an adverse impact project be completed separately
from a NEPA document?
A: Yes, the rule does not require linking the conformity determination and the NEPA
process. However, such linkage is allowed under the rule. In some instances, such
linkage may be efficient and convenient.
3. To what extent can and should the conformity and NEPA processes be integrated? How
do we integrate conformity and NEPAl
A: It is up to each agency to determine the best ways, given the individual situation, to
integrate the conformity and NEPA processes. There are certain requirements for NEPA.
such as the development of alternative actions, that are not required under conformity.
As previously indicated, it may not make sense to perform a conformity analysis for all
alternatives, but only for the one actually selected. At a minimum, at the point in the
NEPA process when the specific action is determined, the air quality analyses for
conformity should be done. Another point at which the two processes might overlap is
in a joint notification and public participation process (assuring that the requirements for
each regulation are met).
4. If the conformity analysis parallels the NEPA analysis, would each alternative have to be
determined to conform?
A: A conformity determination is not required for each alternative, only the one that the
Federal agency ultimately approves, permits or funds.
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5. Will categorical exclusions from NEPA also be excluded from conformity?
A: No.
6. If all prescribed burnings for an area are approved in a NEPA document, but exact
emissions were not included in the analysis, would those prescribed fires still be
considered to conforni under the grandfather portion of the rule? For example. the
burning was reported as number of acres not as tons of emissions?
A: No. The action can only be grandfathered if the analysis in the NEPA document included
an analysis of emissions within the nonattainment area that determined whether the
NAAQS was violated or not.
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ei )
O Sr 1 .
_____ 1 UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
NATIONAL VEHICLE AND FUEL EMISSIONS LABORATORY
2565 PLYMOUTH ROAD
ANN ARBOR MICHIGAN 48105
iIUG 15 1q94
OFFICE OF
MORANDUM AIR AND RADIATION
SUBJECT: Denver Conformity Issues
FROM: Philip A. Lorang, Director\ A\t’.
Emission Planning and Stra ies Division
TO: Patricia D. Hull, Director
Air, Radiation, and Toxics Division
Region 8
Thank you for your memorandum of July 21, 1994, in
which you describe several conformity issues Denver is
facing. Our responses to your numbered questions follow.
1. You are correct that DRCOG cannot simply adopt
reformulated gasoline- into its long-range transportation
plan and receive emission reduction credit for conformity.
As section 51.452 (a) (3) of the transportation conformity
rule describes, a program which requires a regulation in
order to be implemented may not receive emissions reduction
credit unless the regulation has already been adopted by the
enforcing jurisdiction.
Reformulated gasoline is something of a special case in
that at the state level only a governor’s request is needed
to implement the program, since the regulations are provided
and enforced by EPA. In this case, the governor’s request
plays the role of a state-level regulation. It may be
possible for the governor to make a request now with an
implementation date sometime in the future, which may give
the result sought by the Denver Regional Council of
Governments. You should consult with Chet France (313-668-
4338) about this possibility.
It is not necessarily true that, as you say,
“commitments in the form of regulations must be included in
the SIP.” The conformity rule allows emission reduction
credit for a measure provided the regulation is adopted by
the enforcing jurisdiction; the rule does not require such
regulations to be part of a SIP revision. Section
51.452(a) (4) does go on to say that during the transitional
period (until a control strategy SIP is approved by EPA),
emission reduction credit may be assumed for measures which
are committed to in that SIP. However, this should not be
taken to mean that all regulatory measures must be in the
SIP in order to get emission reduction credit for conformity
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2
purposes. (EPA could make a SIP call to get adopted
regulations into the SIP, if appropriate.) Obviously, if
any of the measures committed to in the SIP are of a type
that are normally implemented via the transportation plan
and TIP, credit for them cannot be assumed unless the plan
and TIP in fact provide for their implementation.
Finally, it is important to note that reformulated
gasoline may not be used for emission reduction credit in
the build/no-build test. The build and no-build scenarios
must make the same assumptions about reformulated gasoline
and other technological measures. Emission reduction credit
for reformulated gasoline is limited to the budget test.
2. As described above, we agree that credit for a
control measure for the purposes of showing conformity will
be granted when the measure is adopted by the agency with
the appropriate legal authority. However, we do not agree
that this measure must be submitted to EPA for incorporation
into the SIP before credit may be taken.
3. As I discussed with you earlier, this question is
best answered by the Office of Air Quality Planning and
Standards, in particular Dennis Shipman (919-541-5477).
4. There is no way as the conformity rule is currently
written to allow a conditional finding of conformity.
Perhaps an approach involving the upfront adoption of a
backstop measure with a future effective date would achieve
the desired effect of giving the state more time to select
measures which it will actually implement.
5. As you indicate, section 93.129 prohibits
recipients of funds from adopting or approving regionally
significant projects which are not included or analyzed as
part of a conforming transportation plan and TIP. The
preamble says that “the specific step considered to be
adoption or approval may depend on what other steps exist in
a recipient’s process. The SIP must designate what action
by each affected recipient constitutes adoption or approval”
(58 FR 62205). CDOT’s issuance of access permits is a step
which might constitute an approval. If there is no earlier
or later step by CDOT which more obviously should be
considered CDOT’s final approval of E470, you are correct in
saying that CDOT may not issue the access permits until
Denver’s conformity problems are solved and E470 is
addressed in the plan and TIP. This is true notwithstanding
the fact that the Corps of Engineers may have taken a
separate approval action that is grandfathered.
Section 93.102(c) (1) (Limitations) addresse8 federal
projects. Its “grandfathering” provisions are not referring
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3
to non-federal projects. The only sense in which a non-
federal project may be considered “grandfathered” is if the
adoption or approval by the recipient of funds occurred
before the effective date of the transportation conformity
rule (December 27, 1993). Since non-federal approvals are
not subject to NEPA, they could never meet the requirements
of section 93.102(c).
Regarding the interpretation of the definition of
“recipient of federal funds,” a city or county would be
considered a recipient of funds if it has approval authority
over projects using title 23 funds (i.e., if it controls the
decisions regarding for which projects the funds will be
spent). In this case, the city or county would be
considered a recipient even if the state DOT retains the
funds, advertise the projects, purchases the equipment, etc.
However, if a city or county does not have approval
authority over how the funds will be used, supplying
matching funds for a project does not make an area a
recipient of funds.
6. Although we are sympathetic to your reluctance to
approve a waiver which is not supported by the Colorado
Department of Health, we do not believe their concerns are a
valid basis to deny the waiver, if there is indeed enough
data to support Denver’s ozone redesignation. The Colorado
Department of Health has apparently identified reason for
concern regarding the appropriateness of the waiver, but no
proof that it should be denied. To avoid charges of being
inconsistent, EPA should make an independent assessment of
the appropriateness of a waiver and any potential conditions
in light of the concerns about the implications of the
limited data from temporary monitoring sites.
We do believe that under the circumstances it is
appropriate to attach special conditions to the waiver. For
example, the waiver could be granted only for a limited time
and with the condition that more monitors be installed.
Once more data is gathered from monitoring sites in the
areas of concern, there will be a legitimate basis to decide
whether the waiver (which in any case is conditioned upon
the data continuing to show attainment) should be extended,
made permanent, or revoked. While the national preamble on
“clean-data” exemptions did not directly address
incorporating such special conditions on NOx waiver
approvals, Region 8 could propose them on an area—specific
basis.
It is important to note that the conformity NOx waiver
applies only for ozone areas. Because NOx is also a PM-10
precursor in Denver, the transportation conformity rule’s
NOx provisions for PM-1O areas would have to be met even if
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4
Denver received the conformity NOx waiver. Sections 51.442,
51.444, and 51.446 of the transportation conformity rule
require either a build/no-build test or a 1990 emissions
ceiling -for PM-l0 precursors.
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(7//
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
REGION IX
75 Hawthorne Street
San Francisco, CA 94105-3901
August 18, 1994
Barry Wallerstein
Deputy Executive Officer
Planning, Transportation, and Information Management
South Coast Air Quality Management District
21865 Copley Drive
Diamond Bar, CA 91765
Subject: Response to Questions about Indirect Source Measures and
Redirection of Federal Funds
Dear Mr. Wallerstein:
The purpose of this letter is to respond to your letter to
David Howekamp dated July 26, 1994. You asked two questions
related to indirect source measures in the 1994 Draft Air Quality
Management Plan (AQMP) for the South Coast Air Basin.
Your first question was in two parts. In answer to the first
part, regarding whether indirect source measures are considered
transportation control measures (T Ms), it would be premature to
state whether the indirect source measures in the AQMP are TcMs
because EPA is still reviewing the draft AQMP. However, generic
controls on indirect sources of vehicle emissions are included in
the list of TCMs in §108(f) of the 1990 Clean Air Act.
Further, with respect to the transportation conformity
regulations, the timely implementation requirement for TcMs
applies regardless of how the TCM is labeled in the SIP. Should
the indirect source measures in the draft AQMP be approved into
the SIP by EPA and fit the rc definition at 40 CFR §93.101, they
would be subject •to the timely impiemant tior. requirement of the
transportation conformity regulation at 40 CFR §93.113. As good
planning practice, a SIP should identify all TCMs and specify
which of those TcMs are subject to conformity’s timely
implementation determination because they are eligible for
federal funding.
In the second part of your first question, you asked whether
EPA will use the definition of a T M in the transportation
conformity regulations for the 1994 ozone SIPS. The TCM
definition at 40 CFR §93.101 applies for determining whether the
regional transportation plan and TIP provide for timely
implementation of the TCMs in the applicable SIP. If the 1994
ozone plan is approved by EPA, it will become the applicable SIP.
1
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In addition to the timely implementation requirement, the
transportation conformity regulation specifies further
requirements for control measures in the regional emissions
analysis. Emissions reduction credit for TCMS and other programs
which ! eed a regulation in order to be implemented may not be
included in the regional emissions analysis (and SIP projected
baseline emissions inventory) unless the relevant enforcing
jurisdiction has adopted the required regulation (see 40 CFR
§93 .130 (a) (3)). Regardless of whether a regulation is required
for a demand management strategy credited in the SIP baseline, a
regional emissions analysis and conformity determination must
specify key assumptions and document all operational assumptions
(see 40 CFR §93.110). The interagency consultation procedures
described in 40 CFR §93.105 must be used to evaluate whether
these assumptions are reasonable (see specifically 40. CFR
§93.105(a)(2) and (c)(1)(i) and (iv)).
Regarding your second question of whether redirection of
federal funds to indirect source measures is required to
demonstrate timely implementation of Ta4s, the transportation
conformity regulation has two requirements. First, if a T M has
not been funded according to the SIP implementation schedule,
before the MPO and DOT can make a conformity finding, they must
determine that past obstacles to TcM implementation have been or
are being overcome. Further, all state and local agencies with
influence over funding for the TCM must give maximum priority to
T M funding over other projects within their control before a
conformity finding can be made (see 40 CFR §93.113 Cc) (1)).
Second, if T M implementation was delayed and funds formerly
programmed for the TcM have not been obligated, these funds can
only be used for either TcMa in the TIP, or, where there are no
other TcMs in the TIP, Congestion Mitigation and Air Quality
Improvement Program (cMAQ) projects. If the TcM funds are
allocated to projects other than TcMs or cMAQ projects, the MPO
and DOT cannot make a conformity finding (see 40 CFR
§93.113 Cc) (2)). -
In sum, EPA cannot direct that federal funds be transferred
from transportation projects to Ta4s; however, in situations in
which TcMs are not being implemented in a timely manner, an MPO
and DOT would have to meet the criteria in 40 CFR §93.113 before
they could make a conformity determination.
Regulations implementing provisions of the Intermodal Surface
Transportation Efficiency Act of 1991 (ISTEA) specify further
requirements for granting priority funding to.TcMs in the
applicable SIP. Questions about ISTEA and the relevant FHWA/FTA
regulations should be directed to Bob O’Loughlin of FHWA at (415)
744-3823. -
2
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If I can be of further assistance, please call me at (415)
744-1210, or Debbie Schechter at (415) 744-1227.
Sincerely,
David Calkins
Chief
Air Planning Branch
CC: James Gosnell, SCAG
Helene Smookier, SCAG
Catherine Witherspoon, CARB
Bob O’Loughlin, FHWA
Kirk Fauver, FHWA CA Div.
Steve Borroum, CalTrans
Zahi Faranesh, Caltrans SCAG Region
2 -
3
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_____ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
\ -— NATIONAL VEHICLE AND FUEL EMISSIONS LABORATORY
2565 PLYMOUTH ROAD
ANN ARBOR. MICHIGAN 48105
b T 14 i.gg4
OFFICE OF
- AIR AND RADIATION
MEMORANDUM
SUBJECT: Transportation Conformity Q & A’s
FROM: Philip A. Lorang, Director (k 1
Emission Planning and Strate J iv , . on
TO: Chief, Air, Pesticides and Toxics Manag ement,
Region ]. I
Chief, Air Programs Branch, Regions 2,31,4,6,8,9,10
Chief, Air Branch, Region 7
Chief, Air, Enforcement Branch, Region 5
Chief, Air, Toxics and Radiation Branch, Region 5
Chief, Regulations Development Branch, Region 5
Following is a set of questions and answers which, like
the February 15, 1994 and May 2, 1994 memoranda, clarifies
our interpretation of the transportation conformity rule for
certain issues. We have coordinated with the Federal
Highway Administration and Federal Transit Administration,
and these agencies will be taking a similar position on
these issues.
Definition of the “Baseline” scenario .
Q: Sections 51.436(c) (3) and 51.438(c) (3) (“Interim
period reductions in ozone and CO areas”) state the
following: “For the first conformity determination on the
transportation plan (or TIP] after November 24, 1993, a
project may not be included in the “Baseline” scenario if
one of the following major steps has not occurred within the
past three years: NEPA process completion; start of final
design; acquisition of a significant portion of the right-
of-way; or approval of the plans, specifications and
estimates.” Does this mean that all of those major steps
must have occurred within the past three years in order for
a project to be included in the “Baseline” scenario, or that
at least one must have occurred?
A: At least one of the major steps (NEPA process
completion; start of final design; acquisition of a
significant portion of the right-of-way; or approval of the
plans, specifications and estimates) must have occurred
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within the last three years in order for a project to be
included in the “Baseline” scenario.
Procedures for determining regional transportation-related
emissions .
Q: The preamble to the final transportation conformity
rule (58 FR 62195) indicates that there must be consistency
between the SIP and the conformity analysis regarding
temperature, season, time period, and other inputs.
However, this regulatory requirement is only mentioned in
section 51.452(b) (5), which applies only to serious and
above ozone and CO areas after January 1, 1995.
A: The requirement at 51.452(b) (5) should have been
included in paragraph (a) as a general requirement for all
areas. This was an oversight in EPA ’s drafting process.
However, EPA’s intent is clearly expressed in the preamble.
Conformity SIPs should correct this problem.
Q: Section 51.452(c) (1) does not make sense as
written.
A: Section 51.452(c) (1) contains an incorrect
reference to paragraph (a). It should instead reference
paragraph (b) of section 51.452. EPA’s intent was to
require areas not subject to paragraph (b) (ozone and Co
areas not serious and above or before January 1, 1995) to
continue using the procedures which satisfy some or all of
the requirements of paragraph (b) where those procedures
have been the previous practice of the MPO. Conformity SIPs
should correct this problem.
Disapproval of control strateav SIPS which were submitted
before November 24. 1993 .
Q: According to section 51.448(d) (2), if EPA
disapproves a control strategy SIP which was submitted
before November 24, 1993, the conformity status of the
transportation plan and TIP shall lapse March 24, 1994.
What if the disapproval itself occurs after March 24, 1994?
A: EPA’s intent is for the transportation plan and TIP
to lapse 120 days after EPA’s disapproval, as required in
section 51.448(a)(2). EPA assumed for the purposes of
section 51.448(d) (2) that the disapproval had occurred
before November 24, 1993 (the publication of the final
rule), and therefore allowed 120 days from November 24,
1993. For disapprovals which occur after November 24, 1993,
regardless of the date that the control strategy SIP was
submitted, EPA intended the provisions of section
51.448 (a) (2) and (3) to apply.
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Conformity SIPS .
Q: What are the consequences of failure to submit the
transportation conformity SIP required by section 51.396 to
be submitted by November 25, 1994?
A: The final transportation conformity rule applies
until EPA has approved the state t s transportation conformity
SIP. Also, the conformity SIP is not a control strategy SIP
as meant by section 51.448 of the rule. ThUS, failure to
submit a conformity SIP has no practical implications for
the ability to make--or the criteria for making--conformity
determinations. However, an EPA finding of failure to
submit the conformity SIP or failure to submit a complete
conformity SIP would start the 18-month sanctions clock, as
required by Clean Air Act section 179.
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1. — 2o--g4 O3:44PM DOJ ENVIRN DEF
P02/2 3
,/14 ‘ /
A1 A-fe-
1
2
3 IN TIlE UNITED STATES DISTRICT COURT;
4 FOR THE NORTh N DISTRICT OF CALIFORNIA
5
ENVIRONMENTAL DEFENSE FUND,)
6 INC., et a ) ..,
)
7 Plaintiff,
)
8 V. ) NO. C 92 1636 TEll
)
9 CAROL Ii. BROWNER, ) ORDER
io Defendant.
- a-
I. BACXGRGUND
12 Section 176(c) of the Clean Air Act prohibits the
federal government and metropolitan planning organizations
from approving projects and activities that are not in
15 Nconfo jty I with a state’s implementation plan (U$ 1 pfl) for
16 achieving or maintaining federal air quality standarda. 42
17
U.S.C. 7506(c) Congress strengtnened the oenfe m +y
18 requirement when it amended the clean Air Act in 1990.
First, Congress specified that “contarwity” moans that a
20
plan or projt t.t must conform to s SIP’B purpose of
21
eliminating or reducing violations of federal air quality
22
standards, and achieving expeditious attainment of such
23
standards. In adcliLion, a “conforming project” must not
24
cause or contribute to any new violation, increase the
1 25
J frequency Or severity of any violation or delay attainment.
Q 26
27 1
20
28
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10—20—94 03:44PMDOJ ENVIRN DEF
zg. at S 7506(c)(.L). Seeoni , Conqresm required EPA to
I
issue, by November 1 , 1991, nov rules establishing
specific criteria and procedures that must be used in
3
“determining conformity.” 4. U.S.C. 7506(c) (4) (A). .
4
When EPA failed to issue any conformity rules by the
5
statutory thuidline, the Environmental Defense Fund (“Em”),
6
the Sierra Club and Carla Baird (hereafter “plaintiffs”)
7 a
‘tiled this citizens’ suit under 42 U.S.C. 7604(a)(2) Lu
8
compel EPA to isêue the required rules. After settlement
9
discussions, the parties entered into a stipulated consent
I0
•dcoree that required F.P to issue final conformity criteria
11
and procedures by October 15, 1993. On EPA’s motion, we
12
extended the deadline 30 days to November 15, 1993. on
13
November 24 and November 30, 1993 EPA, published ij a
14 -
conformity rule for transportation plans and projects and
If,
(2) a conformity rule for other federally funded or
16
supported projects.
17
These final rules provide criteria ana procedures Lor
Ig
determining conformity in areas that have been designatteU
19
as “non-attainment” or “maintenance” areas;’ however, EPA
20
expre55ly declined to issue any ru’e un a discrete but
21
related subject: criteria ar&d procedures for arcaa that are
22 ___
23 1 Non—attainment areas are areas where the National
Ambient. Air Quality tandarda (“NAAQS”) have been v1e ated.
24 “Maintenance” areas are areas that ‘ were designated
nonattejnment after the 1990 amendments but are
25 subsequently determined to be in compliance with NAAQS and
thus in “attainment.” 4. U.S.C. 5 7407(d), 7505(a); 40
26 C.F.R. 51.392; 58 Fed. Req. 62217.
27 2
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Li.iir
designatcd h1attainmeflt. EPA explains that it decided to
I
forego any reguidlion for attainment areas bcoauce, under
2
its interpretation of the C].can Air Act, it has no non-
3
discretionary duty to do so; rather, EP? views this as a
4
matter lOft to EPA’s discretion. 58 Fed. Reg. 62190
5
(“RPA r.nntinues to believe that the statute is ambiguous,
6
and that it provides disor.tiomaxy authority to (issue
7
conformity rules for attainment areas]” (emphasis added).
8
also , 58 Fed. Reg. 63214. EPA further states that it
intends to issue “in the near future” a supplemental notice
10
of proposed rulemaking to deal with conformity requirements
11
for transportation related projects in a limited category
12
of attainment areas.
13
This motion is brought to compel EPA to issue
14
conformity criteria for attainment areas pursuant to
15
§ 176(c) (4) (a) of the Act, 42 U.S.C. § 7506(c) (4) (A), that
16
were due not later than November 15, 1991. Plaintiffs
17
claim that the statute is not ambiguous and that EPA has a
JR
clear, nondiscz-etionary duty to promulgate, by November 15,
19
1991, final transportation and general conformity rules
20
that set forth criteria and procedures for determintng
21
conformity in attainment areas, as well a :iuziattainment
22 -
and maintenance are . Plaintiffs have also filed a
23
24
2 It is unclear whether EPA also intends to promulgate,
25 at some future point, an additional “general conformity”
rub for a limited catsgory of attainment £a 59
26 Fed. Reg. 63214.
27 3
28
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• — ‘-‘ Z —
— ‘ __ ! .L .L\ J .’4 j_,
• ‘—,‘-,, ‘—-,J
petition in the Court ot Appeals for the flistrict of
I Columbia contending that the final confnrmity rules for
2 non-attairnnent and maintenance areas are inadequate.
On August 10, 1994, this Court ruled that it has
jurisdiction under the Clean Air Act citizen suit provision
to determine whethsr EPA should be required to undertake
6 additional rulemaking. The sole issue in this motion is
whether § 176(c) tf the Clean Air Act, 4Z U.S.C. § 7506(c)
8 requirce EPA to promulgate conformity criteria for
9 ttairui ant areas.
10 xx. zicuaizo
11 LEGAL STZJIDARDS
12 Ordinarily, the starting point in statutory
13 construction is the language of the statute itself.
14 Intejn Brotherhood of Teamsters.. inc. v. Daniel 439 U • s.
551, 557 (1979). The Court “must give effect to (he
16 unambiguously expressed intent of Congress,” nd must
17 “reject administrative constructions which are contrary tn
clear congressional intent. .vron U.S.A. Inc v. Natural
19 Resources Defense Council , 467 U.S. 838, 843, n.9 (19R4).
20 i the statute is silent or am iquous with rasper t to a
21 specific issue, the court need only determine whether the
agency’s construction of the statute is reasonable and
permissible. I However, a reviewing e.ourt should reject
administrative Constructions that ar inconsistent with the
25
statutory mandate or that frustrate the policy that
26
27
2*
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iu- u— uJ:4 r1v1 uuJ NVIRN DEF P06/23
I I
Cu:igress sought to implement. State of Oregon O.B.fl .
1
Oreaon Heaj.tfl science v. suwen 854 F.2d 346, 348 (9th
2
C lr.1988).
3
. TEE 8?AT TI ITBEL? IS
1.. Tb. languaq. of th. etatut.
6 The langu qA of 176(c), when read in light of the
statute as a whole, does not dictate a finding that
8 subsection Cc) (4) applies to attainment areas as veil as
maintenance and nonattainment areas. Although plaintiffs
aryile that the language unaa igiaously d ’ids that the EPA
11 promulgate criteria for determining conformity in all
12 areas, tne language alone is inconclusive.
13 Section 176(c) (1) states that no arm of the Federal
14 Government may support “any activity” which does not
15 conform to an implementation plan approved under § 7410.
16 The section goes on to define “conformity” to a plan as:
17 (A) conformity to an implementation plan’s purpose of
18 Alfininating or reducing the severity and number of
violations of the national ambient air quality
19 standards and achieving expeditious attainment of such
standards; and
20 (B) Ui t. such activities viii not --
21
(i) cause4or contribute to any new violation of
any standard in any area;
23 (ii) increase the frequency or severity of any
existing violation of sxiy standard in any area;
24 Ox.
(iii) delay timely attainment of any standard...
26 42 U.S.C. § 7506(c)(]). Section (4) directs the EPIt to
27 5
28
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1O 20—g4 03:46PMDOJ ENVIRN DEF P07/23
promulgate crltevia and proc..Adures for determining
conformity of projects described, in section (1); thus, at
issue here is wfletfler any activity” rsquired to “conform”
3
as defined by sect on (1) is a term which includes
4
act1vitit , in attainment areas.
5
Plaintiffc contend that the text of the statute
6
plainly moans that attainment areas are included. First,
7
thoy argue that the plain language of section (C) (1)
8
prohibits funding or support of “any activity” that does
9
not conform to an implementation plan approved under
10
741U, not ut “some” activities or activities in certain
11
geographical areas. Moreover; since activities must
12
conform to implementation plans, and under § ‘410
14 implementation plans are required for every portion ot the
state including attainment areas, then every activity in
lb
every area must necessarily conform.
16
Next, plaintiffs argus that section (C)(1)(S)(i)
17
defines conforming activities as those wliicn will net
18
“cause or contribute to any new violation of any standard
10
20 in any area. ” (emphasis added). Again, plaintiffs contend
21 that a plain reading of the phrasci “any area” includes
attainment areas. They also u&’gue that cOction (1) 2S
22
specifically directed at at.tainment areas, sirics it refers
24 to new violations (in areas that presumably meet emissions
standards) ri L1ser than exacerbation or protraction of
25
26 existing vi lation (so do •ect ons (ii) and (iii))
27 6
28
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10—20—94 03:45PM DOJ ENVIRN DEF P08/23
plointifto’ reading of 9176(C) is not logically
I
coherent even U the statutory language is read in
isolation. Section Cc) (1) (A), delineating which activities
must conform and defining conformity, states that prolects
must conform to the purpose of “eliminating or reducing”
violations or “ chieving” attainment. This section cannot
6
refer to projects in attainment areas, since by definition
attainment areas have no violations to be eliminated or
reduced. The requirement in section (A) (1) is paired
conlunctively with the three-part requirement in (A) (2)
upon which defendants so h vi1y rely: activities must
both conform to the purpose of eliminating or reducing
12 violations or achieving attainment fail to cause new
13 violations as set out in subsection (i).
Whereas the plaintiffs’ reading of section (c) (1)
15 produces a - logically incoherent framework, the EPA’s
16 reading, if not a paz 1igin of logic, is less self-
17 contradictory. Defendants suggest tnat section 1 1)
18 prohibits “new’ in the sense of “additional” violations. 3
19
20 Some sections of the Act refer to nonattainment
areas by chcmical; for instance, 9 7504(a) refers to
21 “ozone, carbon monoxide, or P11-10 nonattainnient areatsi”;
§ 7506 jtseit refers to “og.one and carbon monoxide
nonattairzment areas,” §7506(3)(A)(iii), and so on.
§ThOl( ) defines nornitLainment;
23
The term “nenattainmcnt area” moans, for any ir
24 pollutant, an area which is designated “nonattainment”
with re3pcct to that pollutant within the meaning of
25 section 7407(d) of this title.
26 Finally, plaintiffs conceded at oral argument that an area
a’—
£1
28 1
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10—20—94 03:47PMDOJ ENVIRN DEF P09/23
Under this better reading, gections (1), (ii), and (iii)
taken togetner prohibit all pessibic ways that a new
2 project could inhibit attain ant: section (i) would
prohibit an increase in chemicals thAt had heretofore been
at acceptablc levels; section (ii) would prohibit the
exacorbation of any .xicting violations; and section (iii)
6 would encur that progress in reducing the level of any
given chemical would not be slowed by a new transportation
8 project.
2. The structur, of ths statute
10 in addition to the potential for different readings
raised by the statutory language alone, the structure of
12 the Act itself creates ambiguity. The “cardinal rule” of
13 statutory construction is that “a statute is to be read as
14 a whole,.., since the meaning of statutory language, plain
15 or not, depends on context.” Rifle v. St. Vincent’s
16 Hospital . 112 S.Ct. 570, 574 (1991) (citations omitted); In
re Public Bank of New York 278 U.S. 555 (1928). in reaaing
18 a statute, the Court “must not be guided by a single
19 sentencd... but look to the provisions of the whole iaw,
20 dUd Lu it5 object and policy.” U.S. V. Sn sdor ’s H ir . 0
21 HoW. 113, 122, guotedin jJ.R .8. V. Lion Oil Ce , 352 U.S.
282, 288 (195!).
Ambiguity arises from the fact that §176 is locatM
24
can be in violation (nonattainment) for one chemical and
26 not for another.
27 8
28
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10—20—94 O3:47PM1J0J ENVIRN DEF P10/23
vithin Subpart 1, “Nonsttainmcnt Areas in General,” of Part
D, “Plan Requirements for Nonatteinment Azoas,” of the Act.
2
Part C, on the other flarid, is entitled “Pr vention of
3
Deterioration or Air Quality.” The .e ion of the Act
4
requiring state implementation plans for a]]. geographica1
5
areas, § 7410, makes a digtin( tion between these two parts:
6
implementation plans must, “in the case of a plan or plan
7
revision for an area designated as a .nonattainment oree,
8
meet tho appl3cahle requirements of part 0 (relating to
9
nonattainment areas)” 42 U.S.C. 7410(a)(2)(I); and “meet
IA
the applicable requirement. of... part C (relating to
11 QV
prevention of significant deter i ation of a ix quality and
12
visibility protection).” 42 U.S.C. § 7410(a)(2)(J). The
13
Supreme Court has recognized that titles can be useful aids
14
in resolving ambiguity and discerning congressional intent.
15
MedCorn. v. Tilisy 490 U.S. 714, 723 (1989), citing FTC
16
v.Mai delBrós. Inc. , 359 U.S. 385388—89 (1959). Here,
17
the title of the part in which § 7506 is containea suygest
18
that the section should apply to nonattainment areas niiy.
19
3. LegislatiVe listory
2A
If the statutory language itself is unclear, the court
21 -
can turn to legislative history for yuidance. £LL .
22
Neville 985 F.2d 992, cert. enied 113 S.Ct. 2425 (1 i).
23
Aside from the lanquage or the statute itself, r.rnnicittee
24
reports represent the most persuasive indicia of
25
congressional Intent, in enacting a statute. iilLy. Y
26
27 9
28
-------
1O—20--g4, O3:47PM Oj ENVIRN DEF P11/23
713 F.2d 1249,1252 (7th Cir.198 ); U. . V. CUrtiB—NaVada
I
Nines 1 Inc . 611 z.2d 1277, 1280 n.1 (9th Cir.. 1980)
2
- Mere, the 1990 conformity amendments originated in the
3
bill adopted by the Scnata Environment and Public Works
4
Committee. Thc committee’s *xplanation of the conformity
5
tests outlined in 17 (c)(1)(B)(i) — (iii) closely tracks
6
the language nf those requirements as they appear in the
7
statute, but includes some significant itrerences. Fiz t,
8
the report states that
9
“(t)he purpose of the conformity language is to assure
10 that before in any way participating in an activity,
a Federal agency must find that the activity does not
11 cause or contribute to violations of an ambient
standard in any area... ”
12
S. Rep. No. 228, 101st Cong., 2nd Sess. 29 (1990) (emphasis
13
added). The report shares the “in any way.., in any area”
14
language of section (c)(1) and (c)(l)(B)(i), but does not
15
include the possibly ambiguous term “new violations,”
10
referring instead to violations of ambient standards in
17
general. The report goes on to state tnat the con:ormlty
18
requirements also ensure that an activity “does not
19
increase the severity or frequency ot existing viol 6 lione,
20
and dues not delay’ progress in achlRv iriy ambient StandQrdc
21
in any nonattainmentarea. ” . (emphasis added) Again.
the word choice is nearly identical to that of sections
23
(c)(l)(b)(jj) and (iii), except that the Senate r port
makes exp11 iL reference in the third phrase to
non U..ainment areas.
26
27 10
2g
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10—2,0—94 0 3:4SPMDOJ ENVI N DEF P12/23
Although perLe of thc Senate Repert at first blush
weigh in plaintiff’s favor, the Report too is ultimately
2 ambiguous. The parayraph excerpted above, like the
3 analogous statutory language, is loeat d under the heading
4 “General Provision, for W attain ient Areas ” . at 23
5 (emphasis added). Other sections of the report are
6 iwplicitly in conflict. For example, on the one hand, the
7 co mittce states that for regional transportation plane,
8 “(t)he conformity determination applies to each pollutant
9 for which an attainment or maintenance plan is required,”
10 Id. at 29, implying that the determination does not apply
11 in areas that need no attainment or maintenance plan (I . e.,
12 attainment areas). On the other hand, the very next
13 paragraph refers to the need to quantify the environmental
14 impact of adding highway capacity “in or near nonattainment
15 areas,” j ., a phrase which suggests that attainment areas
16 should be included in the conformity requirement. Because
17 there are several portions of the Report that are similarly
18 ambiguous, the Senate Report simply does not aictate eAlker
19 result. -
20 4 coaqr.. .Lemsl • ‘xstitieation” of early 2 *
21 interpretation.
a Plaintiffs argue that until recently, the EPA has
construed l76( ) to include attainment areas within its
24 ambit. They turtner drgue that Congress has acquiesced in
this interpretation by not explicitly disabusing EPA ot its
26
— 11
2i
2S
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1O—2O—g 03:48PMDOJ ENVIRN DEF P13/23
interpretive stance. As tho Supreme eourt put it,
I
(A] court may accord great weight to the longstanding
2 interpretation placed on a statute by an agency
charged with its adciinistratiori. This 1 especially
3 so where Congress has re-enacted the statute without
pertinent c1 ange. In thec circumstances,
4 congressional failure to revise or repeal the agency’s
interpretation is persuasiv, evidence that the
5 interpretation is the one intended by Congress.
6 v. Bell Aerospace Cc. , 416 U.S. 267, 274—5 (1974);
7 WjJ shjr!e Westwo .d Assocs 1 v. _ Atazitic _ RichfJpld
8 Corp . 881 F.2d 801, 808 (9th Cir.1989). 4
9 In support of their contention that the EPA previously
10 demanded that conformity criteria apply to attainment
areas, plaintiffs offer three types ut evidence —— first,
12 instances of the EPA requiring conformity for attainment
13 areas; second, eviaence in the legislativ, history that
14 Congress (or at least a member thereut) wm awara of the
15 EPA’s inteLkJretation, and third, the agency’s 1980
16 5td(.e aeflt that it believed 7506(c) was jntended to apply
17 L.a both attainment and nonattainment areas.
18 Firet, pIaint ffs assert that the EPA’s initial
19 statement of inIicy applying conformity requirements to
20 attainjnpnt areas came in the form of the “Guideline For
21 Analysis of consistency Between Transportation and Air
22 Quality Plans and Programs” issued jointly with the Federal
Thi section discusses only plaintiffs’ cont ntiOn
24 that Congress relied on or approved ut EPA’s carly
interpretations of p176, and that this reliance is in
25 itself evidence of Congressional intent. Addressed below
is. plaintiffs’ argusent that aince EPA’s interpretation has
26 changed, it is not entitled to deference under Chevron .
27 . 12
28
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10—2.0—94 03:49PM DOJ ENVIRN DEF P14/23
Highway Administration In 1975 (Plaintiffa’ Exhibit 4J. j
1990, Senator stated that the intent of the conformity
provision (adde i in 1977) wa to enable tUe EPA to monitor
3
air quality in accordance with that 1975 guideline. 13b
4
Cong. Rec., S 16792, ccl. 2 (daily ad. Octebor 27, 1990).
5
This statement might have been persuasive •videncc that
6
Congress meant to approve the EPA’s interpretation if it
7
had been mane betore the conformity provision was added.
8
AG Laca3.s 22S. 15fr4 v.Pederal Labor Relations Auth .
9
712 F.2d 640, 647 (D.C.Cir. 1983); Reaional Rail
10
Reorganization Act _ Casesv. Connecticut Ccrtera3 ns. co p
:ii
419 U.S. 102. 132 (1974) (statements made after passage of
12
a statute reflect only personal views of legislator. not
13
legislative intent.) 5
14
Even more importantly, it is not obvious that
15
plaintiffs’ interpretation of even this 1975 guideline is
correct. The guideline itself offers five criteria by
wlw.th tL-dll5portation plans and programs can demonstrate
18
“consistency” with state implementation plans. Of these
19
criteria, two ure pertinent:
20
2) HPO transportation pianc and programs must not
21 contribute to a violation of NAAQS (air quality
22 -
In addition, “(I)t i5 the official committee reports
23 that provide the authoritative expression of legislative
intent... Stray comments by individual legislators, not
24 nthez-wise cupported by statutory language or committee
reports, cannot be attributed to the full bcnly that voted
25 on the bill.” In re Kelly , 841 F.2d 908, 912 n.3 (9th
Cir.1988), auoted in Coa)iticrn for Cloait Air v. Suuthern
26 Cal. Edison 971 F.2d 219,227 (9th Cir.1992).
27 . 13
28
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1O—2Q—g 03:49PMDOJ ENVIRN DEF P15/23
standards) for a pollutant, for which no concent rations
I in violation of standards have been measured.
2 4) MPO transportation plans and programs must not
interfere with maintenance or NAAQS, once th
3 standards are attained.
4 (Plaintiff’s Exhibit 4). Plaintiffs assert that criterion
5 two, which is similar to §7506(c)(1)(3)(i), means that
6 attainment areas were required by the guideline to conform,
7 while criteL ion four, which ha no parallel in the current
8 statute, refers to conformity in maintenance areas. A much
9 less tortured reading is that criterion deals with
10 attainment areas -- it describes what should happen “unce
11 the standards are attained.”
12 Plaintiffs are, in effect, stating that the EPA itself
13 issued documents in the past using language similar te.
14 parts of the statute. What the pLaintirre have
15 asserted is that tne EPA unambiguously interpreted its own
16 guidelines (speCiti..ally critorion two) as meaninq that
17 attainmeni. areas must also be consistent with statc
1$ implementdLion plans. Without that step, al] that the 1975
19 guidelines show is that ambiguous language’ has been used
20 consistently over rh course of fifteen years.
21 Plaintiffs also offer evidence that the EPA did, in
22 fact, r rjuire that projects in attainment (or
23 unclassifiable) areas conform to state implementation
24 programs. In at least three projects, the PA ozdered
25 . ___
26 6 See discussion In Section 11.3.1, su ra .
27 14
28
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1U U— 4 Uj:4 rMDUJ ENVIRN DEF P16/23
conrormity studies “pur iuant to c176(c)” of thc Clean Air
Act. Huwever, the fact that EPA chos. to conduct
2
conformity atudioc is not equivalent to an EPA
3
interpretation that § 176(c) imposed a mandatory duty to do
4
so.
5
Most favorable to the plaintiffs is the EPA’S advance
6
notice of proposed rulemaking issued on April 1, 1980. In
7
this notice the EPA states that SIPs are required both Lu
a
areas that have not yet attained national ambient air
9 -
quality standards and in clean air areas, which are
10
monitored for the prevention of significant deterioration
11
(PSD) of air quality. The notice flatly asserts:
12
EPA believes that the Congressional intent of
13 section 176 (c) was that federal actions should not be
allowed to cause delay in the attainment of
14 aaintenanue oZ the NAAQS in any statc or vie1atjono
PSD requirements in areas with air cleaner than the
IF)
16 45 Fed. Req. 21590 (April 1, 1980) (emphasis added).
17 This statement of understanding by EPA, if relied upon
7R by Congress when it amended the Clean Air Act, would be
19 persuasive evidence of congressional intent, according to
20 the logic of N.L.R.B. v. Bell Aerospace, sunra . However,
21 only limited deference is due to an agency interpretation
22 where Congress may have been unaware of the interpretation.
23 SEC v. Sloan , 436 U.S. 103, 121 (1978), cited in National
24 Wi1 i1jte rederation V. Gorsuch 693 F.2d 156 (1.952) . Ihis
25 statement is ot a broad, formal description of policy, but
26 is merely contained in a notice of proposed rulemaking.
27 is
28
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1U U— 4 uj: urivi .uuj ENVIRN JJ F
3
Su .h attenuated cvi ance of :ortgreaaion l intent, coupled
I
with other equivocal evidence in the legislative history.
2
is Insufficient, to bring Congress’s intent out of the realm
3 -
of the ambiguous.
In sum, neither thA plain 1anquage, structure,
5
legizlativo history, nor Congress’s putative reliance on
prior EPA interpretations gives any unambiguous indication
of whether §176(c) should apply to attainment areas. The
statute itself is inescapably ambiguous.
9
C. DEFERRING TO AGENCY INTERPRETATION OP AN ANBIGUOUS
10 STATUTE
11 If a statute is silent or ambiguous with respect to a
12 specific issue, “the question for the court is whether the
is agency’s aza er is based on a permissible construction of
14 Uit statute.” ç vron U.S.A. tn . v. Natural fleeource
15 Defense Council , 467 U.S. 837. 843. (1984). Courts should
16 ohow “groat deferAnce to the interpretation given the
1? t tute by the officers or agency charged with its
18 intc rpretation.” EPA v. Nationa1 Crushed Stone Ass’n . 449
19 U.s. 64. 83 (1980).
20 EPA argues that during the course of developinq and
21 promulgating its conformity criteria, it caretully
considered hov to construe the statute and arrived at a
23 reasonable interpretation. As described above, the statute
24 can readily be interpreted to apply unly to nenattainmont
25 and maintenance areas. Thus the Court must uphold EPA’s
26 . interpretation If it is “permissible.” Chevron , 467 U.S.
27 . 16
28
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1O-2O—9 03:EOPM DOJ ENVIRN DEF P18/23
— U,
• tt 843.
I
Plaintiffs offer two arguments against deferring t
the EPA’c interpretation. Piret, they contend that the
3
EPA’S interpretation of the statute has radically changed
4
without reasoned explanation, and s therefnra not entitled
5
to deference. Second. they assert that the EPA’S
6
interpretation is contrary to the express policy underlyinq
7
the statute and would undercut its goals rather than
8
effectuating them.
9
1. EPA’s changiug ist.rprstatioa of S 176(e)
I0
Although it is not entirely clear from the evidence
11
presented exactly what the EPA’s policy with respect to §
12
176(c) has been in the past, it is undisputed that in at
13
least some instances the EPA has required conformity
14
analyses in areas that were designated “attainment”.
15
Defendants’ Opposition at 19, conceding that there was
16
“some inconsistency” in interpretation.)
Plaintiffs argue that this fact should prevent the
18
Court from deferring to the EPA interpretation as Chevron
19
would require. In Coalition for Clean Air v. Southern CaL
20
Edison WiJ . i. d 19 (1992), the tlintfl Circuit declined to
21
deter to an EPA interpretation of the Clean Air Act after
22
the EPA changed its position. The EPA wrote 4 leLLex Lu
23
the Houco opoakor, otating that under S 110(e) of the Clean
24 -
Air Act, EPA would have an incredibly burdensome mandatory
25
duty tn i n Federal Implementation Plans under. certain
26
27 17
28
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.10—20—94 03:51PM DOJ ENVIRN DEF P19/23
c2rcumstanocs. After Congress failed to grant EPA’B
1
refplAst to chang. the statutory language, EPA asserteil in
2
a later suit that it h d no duty whatsoever under that same
3
statutory provision. at 228. PhA Ninth Circuit
4
concluded that where an aqency’s “current interpretation is
5
in direct conflict with the interpretation that it
6
expressed to Congress,” and where the agency’s new
7 -
interpretation reflects neither accumulated experience nor
8
changing circumstances and has not been justified with
9
reasoned analysis, it is “doubtful” that the interpretation
10
would be entitled to deference. 1 .4. The Court reasoned
11
that EPA was merely “ask(ing] the Court to do what Congress
12
would not,” ., rather than presenting its technical
13
expertise and experience as the rationale for deference
14
under Chevron .
15
EPA counters plaintiffs’ argument by asserting that,
16
in this case, changes in agency interpretation are merely
17
the product or cnanges in tne agency’s reasoned analysis,
18
and should still be accorded the same deference. As the
19
Gupreme Cuu&L stated,
20
The fact that the d flC haR from time to t me changed
21 its interpretation ... does not, as respondents argue,
lead us to conclude that no deference should be
22 accorded the agency’s interpretation of the
statute.... the agcncy, to engage iii informed
23 rulemaking, must consider varying interpretations and
the wisdom eif its policy on a continuing basis.
24
chevron at 863-64. See A O Mesa Verde Const. v. N. Cal .
25.
Dist. Council of La orars 861. P.2d 1 4 (9th Cir.1988)
26
27 . 18
28
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1 O—.20—94 03:51PM DOJ ENVIRN DEF P20/23
a
(,V. .ji c cl16zIy. d dtlInjnil’;trative understanding of a statute
I
should be taken into account by thc rcvicwing court);. but
2
compare I.N.S. v. Cardoza Poneoca 4 O U.S. 421, 446 n.30
3
(1987) (An agency interpretation of a relevant provision
4
which conflicts with the agency’s earlier interpretation is
5
entitled to considerably less deference than a consistently
6
held agency view.)
7
The circumstances of this case. are not perfectly
8
analogous to those in Coalition for Clean Air . EPA is not
9
directly - contradicting unambiguous representations to
Jo
Congress, nor is it evading a clear congressional mandate.
Ii
The reasoning of Chevron seems more appropriate here. In
12
a limited Sense, EPA’S new interpretation is a product of
its expertise; EPA, unlike this Court, has specialized
14
knowledge of where its resources will best be spent and
15
under what conditions a conformity analysis of attainment
areas will be productive. Lack of consistency lessens the
17
amount of deference to be accorded the agency
18
interpretation, but does not eliminate deference entirely.
19
Fed. Elec. Com’n V. Dem. Senatorial CainDalan Corn . 4S4
20
U.S. 27 37 (thoroughness, validity, and consistenr y of
21
dYeIIUY £e d vsw1y dre Lactors that bear on amount 01:
22
deference to be given). This Court will not completely
23
di3count EPA’s construction of the etatute merely bccau c
24
it has varied over the years.
25
2. The policy underlying the Clean Air Act
26
27 19
28
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.10—23—94, 03:51PM DOJ ENVIRN DEF P21/23
If
Plaintiffs’s final argument is that if this court were
2 to construe 176(c) as applying only to nonuttdiluuent and
maintenance areas, it would undercut rather then promotc
the purpu es oC the Act. They assert that the Clean Air
Act evinces congrceaional intent to preserve air tia1tty
5
that currently excoode national standards, and cite
6
language frnm Alabama Pover Co. V. Costle 636 F.2d 3.3
7
(D.C. Cir.1979) to that effect: “(s]ection 161 of the Act
8
now provides an express directive that state plans include
10 measures to prevent the significant deterioration of air
quality in areas ... having ambient air quality better than
the applicable national ambient... air quality standard. .“
12
(Plaintiffs’ Motion at 16:12-17, quoting Costle , , at
13
349). Plaintiffs argue that if 176(c) is interpreted to
14
apply only to nonattainment and maintenance areas,
15
federally-supported activities that may cause new
16
violations of NAAQS will be allowed to go forward without
17
review of their effect on air quality, thereby frustrating
the stated purposes of the Act.
What the plaintiffs fail to mention is that the
20
TM express directive” discussed in Coetlo is the purpose of
21
Part C of Title 1, designated as “Prevention or Signiricant
Deterioration of Air Quality,” subpart I, “Clean Air.” ee
24 Q_•• j 5 at 349. Thus although the ultimdt.e ais oL the Act
may .be to make the iz even cleaner than the nation 1
25
standards require it to be, tho authority cited does not
2711 20
28’
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1O—20-g4 03 : 5 2PMDOJ ENVIRN DEF P22/ 23
necessarily demand that each section, particularly Part D,
1
be construed as applying to attainment areas.
2
Allowing federal support of projects in attainment
3
aroas that have not. been determined to be in conformity
4
with a SIP will not necessarily undercut the purposes or
5
the Act. Part c, covering attainment areas, demands that
impLementation plans contain emissions standards for
7
attainment and un lassjfjab1e areas ( 7471); allnws the
8
Adiuiniatrator to prohibit construction of major emitting
9
facilities under certain circumstances (5 7477); and
10
dcl ineat s allowable ceilings for different types of
1 pollutants (5 7473). Section 176(c) itself directs that
12
r!onformity determinations be performed in “maintenance”
areas (5 7506(c)(4)(B)(iii)). Maintenance areas are thuse
14 which were previously designated “nonattainment” but have
attained the air quality standard; Part D treats
maintenance areas separately in 5 5705, demanding that
17
state implementation plans speclri ally provid ’ tor
18
maintenance of standards in these areas for tventy years
19
after redesignation. 42 u.S.C. 750 5(a) and (b) (one plan
20
for the first ten years with a eviaed plan for the next
21 -
ten years issued eight years after redesignation) Thus
22
areas making the transition from nonattaininent to
23
attainment are covered by a maintenance plan, and the EPA
24
has already issued .onformity criteria under § 1 (c;(4)
25
for maintenance plans as directed by (C) (4) (B) (iiij
26
27 21
28
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.10—20—94 O3:52PMDOJ ENVIRN DEF P23/23
There is no clear indication that congressional intent
would be frustrated by EPA’c interpretation of § 176(c).
2 Attainment areas are monitored, though not as stringently,
pursuant tu other oootion of the Clean Air Act. EPA has
4 already issued conformity criteria for nonattainment and
5 aintenoncc areas. Therefore, since Congressional intent
about the geographical scope of § 176(c) is unclear, this
7 Court viii follow Chevron and defeL to EPA’s permi.isible
8 interpretation. Section 176(c) (4) should not be construed
9 as demanding conformity criteria for attainment areas
10
11 fl•
12 For the reasons stated above, the Court defers to
13 EPA’s interpretation of § 176(c). Accordingly, tfle Court.
14 declines to find liability of the defendants Unde: this
15 section of the Clean Air Act for failure to promulgate
16 conformity criteria for attainment areas. The Jietion for
17 Enforcement of Prior Order is DENIED.
28
19 IT IS 80 ORDERED.
20
DATED — ____________________
£1 T IELTON E. ItFNDFRSON. ChIEF JUDGE
22
23
24,
25
28
27 22
2
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O5—O9— O2: 6PM PROM E?A (VELANN AR8OR TO S. SCIINEE ERG. OGC ?002/UO4
,ø I
I,
UNITED STATES ENVIRONMENTAL. PROTECTION AGENCY
\ / NATIONAL VEHICLE AND FUEL EMISSIONS LA8ORATORY
2565 PLYMOUTH ROAD
ANN ARSOR. MICHIGAN 48105
ncr OFcICEO
AI AND RADIATION
Mr. Sam Zimmerman, Director
Office of Planning
Federal Transit Administratior (R P-4i)
400 Seventh Street, SW
Waeh .ngton, D.C. 20590
Dear Mr. Zimmerman:
As you know, we recently became aware that EPA, FIiWA,
and YTA staffs have not had a single interpretation of
551 ,448(c) (1) (iii) of the transportation conformity rule.
)WOs have been operating under two different interpretations
depending en whether they were taking their advice primarily
from DOT or EPA r.gional. staff.
After carsful riview of the language of this provision
and the related language in the rulemaking preamble, the
Environmental Protection Agency has concluded that the more
permissive interpretation of this provision is not
inconsistent with the rule. We believe that the DOT
interpretation is appropriate with respect to areas with
incomplete SIPs for the 15% rate-of-progress VOC reduction,
considering the good faith reliance that. some )GOs have
placed on this interpretation. Specifically, it is
permissibl, to intepret the rule to mean that when EPA makes
an incompleteness d•termuinat ion with a “protective” finding
under 551.448(c) (1) (iii), the deadline for the ) O and DOT
to determin, that the transportation plan and TIP conform
according to transitional period criteria and procedures (as
required by SS1.448(a) (1)) is 32 menthe following the date
of the incompleteness determination. Otherwise, the
conformity status of the transportation plan and T IP will.
laps..
According to this interpretation, the conformity status
of transportation plans and TIPS did not lapse in November
1994 in areas which received a protective finding under
551.448(c) (1) (iii) and which have not yet demonstrated
conformity according to the tranlitional period criteria and
procedures. Rather, such areas will lapse one year from the
date of the protective finding if conformity is not
demonstrated by that time.
-------
5- g— 2:.3 ?M FRO! t EPA MVELANI ARBOR TO S. SCH 1EEBERG. OGC P003/004
Of course, this requirement is independent of. other
conformity rule requirements, which could cause the
cqnformity status of an area’s transportation plan and TIP
to lapse sooner. For example, 951.400(b) (3) (i) róquir.s the
conformity of transportation plans in all nonattainmant and
maintenance areas to be determined according to the final
rule by May 24, 1995, regardless of the date of a protective
finding. In addition, 551.400(b) (4) and (C) (4) require
conformity determinations on transportation plane and TIPS
ta be made no lees frequently than every three years, or the
existing conformity determination will lapse. These
requirements are independent of SIP statue. Aloe, for
transportation plane and TIPs in areas which did net receive
a protective finding (either because the SIP was complete or
was incomplete and did not meet th. requirements for a
protective finding) it is not possible to interpret the rule
in any way other than that the deadline for determining
conformity has already passed. Our survey of our regional
offices indicates that the few ) Oa in this latter situation
have been well aware of thi, timing requirement.
Sincerely,
Philip 1 i ! ? D ector
mieeione Plann ng and Stratd iee Division
cc: Regional Air Division Directors \
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t 00
I - TI
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
NATIONAL VEHICLE AND FUEL EMISSIONS LABORATORY
2565 PLYMOUTH ROAD
ANN ARBOR. MICHIGAN 48105
12/3 94
Ms. Cynthia 3. Burbank
Chief, Environmental Analysis Division
Federal Highway Adminis adon
400 Seventh Street, S.W. (HEP-40)
Washington, D.C. 20590
B C
This letter provides you with EPA ’s advice on the Implementation of 40 CFR 51.452 (b) of the
Transpcziation Conformity Rule with respe to its time element. I am aware that U.S. DOT and a
number of MPOs and state DOTs need this informañcn to know bow to proceed with their conformity
determinanon .
This sccñon of the rule contains requirements for the modeling procedures which generate
“ [ c]stimates of regional u anspoztazion-rel ted cruissions used to support conformity dcwrminadons.
The effective date of these requirements is only gwen in the title of the section, “Serious severe, and
exu’eme ozone nonat rn n areas and serious carbon monoxide areas after January 1, 1995.” There
is ambiguity as to whether the January 1 date applies to the generation of the mi ck n esth ?es , to
the use of them in support of a proposed confomñtydetermlr’ tinn. or to the ctuaJ making of the
conformity deierminationL
It was EPA’s and DOT’s intent at the time c i the nil# makhig that MPOs in the affected areas
have improved n ddling capabilities as of January 1,1995. his nxst in keeping with this intent to
require that any emissions estimates which do not meet the substantive requirements of this secnon
must have been completed as support for a planne ( oonfortmty determination prior to January 1,
1995.11 this Is the case, it is nor necessary for the MIV or DOT to complete its determination process.
priortolanuary l, 1995.JtsalsopcrmefimposedtransportatiociplanorTlP,and/orthe
emission estimates associated with ii.to be modificd to a reasonable degree after January 1 as a iesult
of the public participation process, prior to the finaL adoption action or conformity determination.
Division
of Mcbi le
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Federal Register / Vol 60, No 26 / ‘ednesday. February 8, 1995 I Rules and Regulations 7449
The actions in this document are
taken pursuant to sections 4, 6. and 8 of
the Occupational Safety and Health Act
of 1970 (29 U SC 653, 633. 657).
Secretary of Labor’s Order No i—go (33
FR 9033). and 29 CFR part i ii
Signed at 1 as g:oii. DC this 2td da of
February. 1995.
Joseph A. Dear,
A ,stanZ Secretory of Labor
For the reasons set forth above. 29
CFR part 1910 is hereby amended as
follows.
PART 1910—(AMENDED]
I The Authority citation for subpart
R of 29 CFR part 1910 continues to read
as follows:
Authority: Secs 4. 6. 8. Occupational
Safety and Health Act oF 1970(29 U S.C 653.
655. 6571. Secretary of Labors Order No 12—
Ti (36 FR 8754). 8—76(41 FR 25059). 9—83
(48 FR 35736). or 1—90 (55 FR 9033). as
applicable.
Sections 1910.261. 1910 282. 1910.265.
1910.266. 1910 267. 1910 268. 1910 272.
1910.274. and 1910.275 also icsued under 29
CFR part 1911.
Section 1910.272 also issued under 5
USC 553.
2 A note is added at the end of
1910 266. to read as follows’
§ 1910.266 LoggIng operations.
• • • S S
Note: iii. the Federal Register of February
8. 1995. OSHA stayed the following
paragraphs of § 1910 266 from February 9.
1095 until AugusT 9. 1995:
1 (d (l)(v) insofar as it requires foot
protection to be chain-saw resistant.
2 (d)(1)( i ’i) insofar as It requires face
protection
3 (d)(2)(iii).
4 1 0 (2)1 w).
5. (fl(2l(xi).
6 (fl(3)(i i).
7 (fl(3l(vii)
8 (fl(3)(viii)
9 (0(71(n) insofar as it requires that
p. rking brakes be able to stop the machine.
10 (gIll) and 1ghz) insofar as they require
inspection and maintenance of employee-
o ned tehicles.
11. (hl(2)(vii) insofar as it precludes
backcuis at the level of the horizontal cut of
the undercut when the Humboldt cutting
method is used.
(FR D cc. 95—3041 Filed 2—7—95. 6.45 aml
B1I.LINO CODE 45’ O-2S-
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 51 and 93
(FRL—61 49—8]
Transportation Conformity Rule
Amendments: Transition to the Control
Strategy PerIod
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Interim final rule.
SUMMARY: This action aligns the timing
of certain transportation conformity
consequences with the imposition of
Clean Air Act highway sanctions for a
six.month period. For ozone
nonattainment areas with an incomplete
15% emissions-reduction state
implementation plan with a protectl%e
finding, incomplete ozone attainment/
3% rate-of-progress plan: or finding of
failure to submit an ozone attainment!
3% rate-of-progress plan. and areas
whose control strategy implementation
plan for ozone, carbon monoxide,
particulate matter, or nitrogen dioxide is
disapproved with a protective finding.
the conformity status of the
transportation plan and program will
not lapse as a result of such failure until
highway sanctions for such failure are
effective under other Clean Air Act
sections.
This action delays the lapse in
conformity status, which would
otherwise prevent approval of new
highway and transit projects. and allows
States more tIme to prevent the lapse by
submitting complete control strategy
implementation plans. EPA is issuing
this interim final rule, effective for a six-
month period, without prior proposal in
order to prevent previously
unforeseeable delays In State ozone
implementation plan development from
causing widespread conformity lapsing.
In a parallel action in this Federal
Register. EPA is requesting comment on
this interim final rule and on similar but
permanent rule changes.
EFFECTIVE DATE: This interim final rule
is effective on February 8. 1995 until
August 8, 1995.
ADDRESSES: Materials relevant to this
rulemaking are contained in Docket No.
A—95—02. The docket is located in room
M—1500 Waterside Mall (ground floor)
at the Environmental Protection Agency.
401 M Street SW., Washington. DC
20460. The docket may be inspected
from 8 a.m. to 4 p.m.. Monday through
Friday. including all non-government
holidays.
FOR FURTHER INFORMATION CONTACT:
Kathryn Sargeant. Emission Control
Strategies Branch. Emission Planning
and Strategies Division. U S
Ent ironmental Protection Agency. 2363
Plymouth Road. Ann Arbor. Ml 48105
(313) 668—4441.
SUPPLEMENTARY INFORMATION:
I. Background
A Transportation Conformity Rule
The final transportation conformit
rule, “Criteria and Procedures for
Determining Conformity to State or
Federal Implementation Plans of
Transportation Plans, Programs. and
Projects Funded or Approved Under
Title 23 U S.C. or the Federal Transit
Act.” was published November 24. 1993
(58 FR 62188) and amended 40 CFR
parts 51 and 93. The Notice of Proposed
Rulemaking was published on January
Ii. 1993 (58 FR 3768).
Required under section 1 76(c) of the
Clean Air Act, as amended in 1990. the
transportation conformity rule
established the critena and procedures
by which the Federal High%%ay
Administration, the Federal Transit
Administration, and metropolitan
planning organizations determine the
conformity of federally funded or
approved highway and transit plans.
programs. and projects to state
implementation plans (SIPs). Accord n
to the Clean Air Act, federally
supported activities must conform to the
implementation plan’s purpose of
attaining and maintaining the national
ambient air quality standards.
The final transportation conformity
rule requires that conformity
determinations use the motor vehicle
emissions budget(s) in a submitted
“control strategy” SIP (defined below).
and the rule includes special provisions
to address failures in control strategy
SIP development. These failures include
failure to submit a control strategy SIP.
submission of an incomplete control
strategy SIP, or disapproval of a control
strategy SIP. Specifically, according to
40 CFR 51.448 (and 40 CFR 93 128).
following these SIP development
failures, no new or amended
transportation plans or transportation
improvement programs (TIPs) may be
found to conform to the SIP after a
certain grace period (i.e.. the existing
transportation plan and TIP are
“frozen”), and eventually, the
conformity status of the existing
transportation plan and TIP lapses.
When the conformity status of the
transportation plan and TIP lapses. no
new project-level conformity
determinations may be made, and the
only federal highway and transit
projects which may proceed are e’cernpl
or grandfathered projects Non-federal
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7450 Federal Register I Vol 60, No . 26 / Wednesday. February 8. 1995 / Rules and Regulations
I highway or transit projects may be
I adopted or approved by recipients of
I funds designated under title 23 U SC.
or the Federal Transit Act only if they
are not regionally su r.ificant.
L— As described in the preamble to the
final transportation cor.fornitv rule (58
FR 62191—3) EPA deteloped these
requirements in response to public
comments which claimed that the
proposed inlenm period conformity
critena (e g . the “build/no-build test”)
did not ensure emissions reductions
consistent with Clean Air Act
requirements for reasonable further
progress and attainment, and which
emphasized the importance of
emissions budgets in determining
conformity. EPA imposed restrictions
such as conformity lapsing where the
State failed to establish emission
budgets in a timely fashion, because
EPA believed that in the prolonged
absence of a control strategy SIP,
preventing new conformity
determinations and postponing new
commitments of funds would prevent
uncontrolled emissions increases while
the Stale was establishing its control
- strategies.
B Control Strategy SIP Requirements
Control strategy SIPs include 15%
rate-of-progress plans. reasonable
further progress plans, and attainment
demonstrations.
Clean Air Act section 182(b)(1)
required moderate and above ozone
nonattainment areas to submit a 15%
volatile organic compound emission
reduction rate-of-progress plan by
November 15, 1993. Moderate ozone
areas were also required by that section
to submit an attainment demonstration
by this date if they were not using
photochemical grid modeling to develop
the demonstration.
Serious and above ozone
nonauainment areas (and moderate
ozone nonattainment areas using
photochemical grid modeling under
EPA’s interprnation of section
I 82(b)( 1)) w-re required to submit an
attainment demonstration by November
15, 1994 und ,irClean Air Act section
182(cH2)(A). Clean Air Act section
182(c)(2)(9) also required serious and
above ozone nonattainment areas to
submit by this date a reasonable-further
progress (or rate-of-progress) plan for
3 % annual emission reductions until
the attainment date.
Carbon mono,ude (CO) nonattainment
areas classified as moderate with desig i
value greater than 12.7 parts per million
or senous i re required by Clean Air
Act sect,o., 187(aM7) to submit an
attainment demonstration by November
13. 1992.
Areas in nonattainment for particulate
matter less than a nominal 10 microns
in aerodynamic diameter (PM—la) ere
required to submit an attainment
demonstration at var ing dates
depending upon their date of
classification, but Clean Air Act section
189(a)(1)(B) required many areas to
submit the attainment demonstration by
November 15, 1991.
Nitrogen dioxide (NO ) areas were
required by Clean Air Act section 191 to
submit an attainment demonstration by
May 15, 1992.
II. Description of’ Interim Final Rule
A Incomplete 15% SIPs and
Disapprovals With Protective Findings
This interim final rule delays the
lapse in transportation plan/TIP
conformity until Clean Aix Act section
179(b) highway sanctions are effective.
for areas with a 15% SIP which EPA
found incomplete but noted in the
finding (according to 40 CFR
51.448(c)(1)(iii)) that the submittal
would have been considered complete
with respect to requirements for
emission reductions if all committed
measures had been submitted in
enforceable form as required by Clean
Air Act section 11O(a)(2)(A) (i.e.,
incomplete with a “protective finding”).
EPA is also similarly delaying the
conformity lapse which results from
EPA disapproval of a control strategy
SIP with a “protective finding” as
described in 40 CFR 51.448(a)(3) and
(d)(3). Clean Air Act highway sanctions
will become effective in both types of
areas two years following the date of
EPA’s incompleteness determination or
disapproval, unless the State remedies
the failure.
Under’ the November 1993
transportation conformity rule, the
conformity status of the transportation
plan and TIP lapses in such areas twelve
months following the incompleteness
determination or disapproval, unless
another SIP is submitted to EPA and
found to be complete. This Llterim final
rule delays the transportation plan/TIP
conformity lapse. It also restores the
conformity status of transport Iion
plans and TiPs for which twelve months
have already elapsed since EPA made
the incompleteness determination or
disapproval with protective finding.
provided conformity has not lapsed for
other reasons under the transportation
conformity rule. A list of areas with
incomplete 15% SIPs with protective
findings (and the dates of those EPA
findings) is in the docket.
EPA is delaying the transportation
plan/TIP conformity lapse in these areas
because the agency now believes that a
t %ehe-month period to make these
control strategy SIPs Fully enforceable i ’
a too stringent definition of “timely”
SIP development in this particular
context, given the lengthy legislative
and adrmnistrative processes of many
States Although EPA believed this time
period was appropriate at the time EPA
promulgated the transportation
conformity rule, EPA has now seen that
in practice the lime was too short to be
reasonable for purposes of determining
when transportation plans and TIPs
should lapse following SIP de elopment
failures
EPA belie es it is appropriate to allow
States more time to complete these SIPs
before negative conformity
consequences ai imposed, particularly
because in these areas with
incompleteness findings or disapprovals
with protective findings, the State has
developed motor vehicle emissions
budget(s) which are part of an overall
strategy to achieve the required
emission reductions and therefore are
appropriate for use in conformity
determinations. In these areas, lapsing is
not necessary in the short term to
prevent uncontrolled motor vehicle
emissions increases while the State
completes the SIP, because the motor
vehicle emissions budget(s) are already
applying in conformity determinations
as a constraint.
However, EPA continues to believe
that a conformity lapse is appropriate in
the prolonged absence of a complete
control strategy SIP. in such cases. EPA
can no longer remain confident that
states will be able to adopt and
implement the rules necessary to
support the SiP emissions budget EPA
believes that the application of Clean
Air Act highway sanctions sig iifies that
SIP development has not proceeded in
a timely fashion and, therefore, that the
conformity process should ensure that
significant new transportation projects
will not be undertaken.
B Ozone Attoinment/3% Rate-of-
Progress SIPs
For ozone nonattainment areas which
fail to submit an attainment SIP due
November 15. 1994 (including moderate
areas using photochemical grid
modeling) and/or a 3% rate-of-progress
SIP revision (hereafter called am
“attainmentl3% rate-of-progress SIP’).
this interim final rule similarly delays
the transportation plan/TIP conformity
lapse until Clean Air Act highway
sanctions are effective. Clean Air Act
highway sanctions apply in these areas
two years following the date of EPA’s
finding of failure to submit, unless the
State remedies the failure. This ru!e d 1 SLI
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Federal Register / Vol. 60. No. 26 I Wednesday. February 8. 1995 / Rules and Regulations 7451
eliminates the transportation plan/TIP
freeze” in these areas.
Under the November 19g3
transportation conformity rule. in ozone
nonattauftnent areas where EPA finds a
failure to submit the attainment/3%
rate-of.progress SIP, no new or amended
transportation plans or TIPs could be
adopted.after March 15, 1995 (i e.. the
existing transportation plan/TIP would
be “frozen”). The conformity status of
the transportation plan and TIP would
hate lapsed November 15, 1995.
This interim final rule also delays the
transportation plan/TIP conformity
lapse until the application of Clean Air
Act highway sanctions for ozone
nonattainment areas with incomplete
attainmenti3% rate-of-progress SIPs.
This rule also eliminates the
transportation plan/TIP “freeze” for
these areas.
Under the November 1993
-transportation conformity rule, if EPA
found an area’s ozone attainment/3%
rate-of-progress SIP incomplete without
a protective finding, the transportation
plan/TIP would have “frozen” 120 days
following EPA’s incompleteness
finding, and the conformity status of the
transportation planiTIP would have
lapsed November 15, 1995. For areas for
which EPA made an incompleteness
determination with a protective finding.
the conformity status of the
transportation plan/TIP would have
lapsed twelve months from the date of
the incompleteness finding (no freeze’
would have occurred).
Under this interim final rule, in any
ozone nonattainment area with an
incomplete attainment/3% rate-of-
progress SIP, the conformity status of
the transportation plan/TIP will not
lapse until Clean Air Act section
i79(b)(i) highway sanctions are
effective as a result of the
incompleteness (provided the
conformity status of the transportation
plan and TIP does not lapse for other
reasons under the transportation
conformity rule). Consequently. there
will be no distinction among
incompleteness determinations
regarding protective findings.
EPA is delaying the transportation
plan/TIP conformity lapse due to failure
to submit and incomplete ozone
attainmenti3% rate-of-progress SIPs
because unforeseeable delays in the
development of these SIPs, including
delays beyond the control of state air
quality planning agencies due to the
complexity of required mooeling.. have
corninced the agency that the grace
periods in the November 1993 rule
constitute a too stringent definition of
limely” establishment of emissions
budgets in this particular context. Since
states have been proceeding towards SIP
development and delays have not been
within their control, EPA now believes
that the original grace period is
unreasonable.
However, EPA continues to belie e
that conformity lapsing is appropnate in
the prolonged absence of a complete
ozone attainment/3% rate-of-progress
SIP. EPA believes that the application of
Clean Air Act highway sanctions
signifies that SIP development has not
proceeded in a timely fashion and,
therefore, that the conformity process
should ensure that significant new
transportation pro)ects will not be
undertaken
C. Other Control Strategy SIPs
This interim final rule does not
change the consequences in 40 CFR
51 448 for disapproval of any control
strategy SIP without a protective
finding: for failure to submit or
submission of incomplete CO. PM—b.
or NO 2 attainment demonstrations: or
for failure to submit or submission of
incomplete 15% SIPs without protective
findings. EPA believes that
transportation plan/TIP “freeze” and
conformity lapse is appropriate as
currently required because in these
cases adequate emissions budgets have
not been established in a timely fashion.
III. Rulemaking Process
A. Rulemaking Procedures
This rule is being published as an
interim final rule without benefit of a
prior proposal and public comment
period because EPA finds that “good
cause” exists for deferring those
procedures until after publishing the
changes as an interim final rule. Good
cause exists for two reasons. First, it is
contrary to the public interest for the
transportation conformity rule to halt
implementation of transportation plans.
programs. and projects when for the
reasons described above EPA believes
that such delay is not necessary at this
time for the lawful and effective
implementation of Clean Air Act section
176(C).
Furthermore, the conformity
consequences for ozone areas which this
interim final rule delays would have
occurred before full notice-and-
comment rulemaking could have been
completed. EPA could not have initiated
full notice-and-comment rulemaking far
enough in advance to effectively delay
the conformity consequences at issue
because it was first necessary to
evaluate the States’ progress in control
strategy SIP development and
submission, and to determine whether
the existing grace periods were
appropriate. In addition, ii is possible
that a disapproval with a protective
finding could have occurred during the
full notice-and-comment rulemaking
process. Thus, it was impracticable to
provide notice-and-comment
procedures prior to the time by which
EPA needs to implement these changes
to avoid the conformity conseqt , ences
that would otherwise result under the
existing rule.
Although prior notice-and-comment
rulemaking was impracticable, a draft of
this rule was distributed to
representatives of affected State and
local transportation and air quality
planning agencies and the public, and a
conference call was held with
stakeholders such as the State and
Territorial Air Pollution Program
Administrators/Association of Local Air
Pollution Control Officials, the
American Association of State High %av
and Transportation Officials, the
American Public Transit Association.
the National Association of Regional
Councils, the American Association of
Metropolitan Planning Organizations.
the National Governors’ Association, the
Surface Transportation Policy Project,
the Environmental Defense Fund. the
Natural Resources Defense Council. the
Sierra Club Legal Defense Fund, the
Highway Users Federation, and the
American Road and Transportation
Builders Association to solicit input on
the interim final rule prior to
promulgation.
In addition, the Secretary of
Transportation reviewed and concurred
with this interim final rule.
This interim final rule is taking effect
immediately upon publication because.
as described above, conformity lapsing
which is contrary to the public interest
would otherwise be occurring during
the 30-day period between publication
and the effective date ordinarily
provided under the Administrative
Procedures Act (APA), 5 U.S.C. 553(d)
EPA finds good cause to make this
interim final rule effective immediately
for the same reasons described above in
justification of taking final action
without prior proposal. In addition, this
rule relieves a restriction and, therefore.
qualifies for an exception from the
APA’s 30-day advance-notice period
under 5 U.S.C. 553(d)(1).
The provisions of this interim final
rule shall apply only for six months.
during which time EPA will conduct
full notice-and-comment rulemaking on
these provisions and whether to make
these provisions permanent. A proposed
rule is published in the proposed rule
section of this Federal Register. and the
public comment period on this proposal
s ill last until March 10. 1995 Public
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7452 Federal Register / Vol. 60, No. 26 I Wednesday. February 8. 1995 / Rules and Regulations
comments ill be addiessed in a
subsequent final rule, which will be
promulgated before the sot-month limit
on the applicability of this intenmiinal
rule expires.
B Future Amendments to the
Trcnsportation Ccnformitv Rule
EPA intends to make additional
limited a iendments to the
transportation conformity rule. EPA
:ntends to clarify certain ambiguous
Language in 40 CFR 51.448 and 93.128
ta ensure implementation consistent
with the intent of EPA and the
Department of Transportation (DOT), as
expressed in guidance memoranda
issued since November 1993. These
changes are necessary to have legal
certainty that the amendments
promulgated today will continue to
have their intended effect.
In addition. EPA intends to amend the
transportation conformity nile in order
to allow t.ransportation control measures
t%hlch are in an approved SIP and have
been included in a conforming
transportation plan and TIP to proceed
e en if the conformity status of the
current transportation plan and TIP has
lapsed.
EPA is not issuing these amendments
in this interim final rule because prior
notice-and-comment rulemaking is not
.rnpracticable in these cases. EPA
intends to propose these amendments in
a Notice of Proposed Rulemaking within
the next several months, and
representatives from the organizations
l.sted above will be given an
opportunity to comment on a draft
‘WRM this month.
Since publication of the
transportation conformity rule in
‘ ,vemb r 1993. EPA. DO’F. and state
arid local air and transportation officials
hate hed . ‘ penence implementing the
criteriia and procedures in the rule. it is
triat mutual experience which leads to
the amendments which EPA will be
proposing today and in the very near
future. in each case, the amendments
are needed to clarify ambiguities.
correct errors. or make the conformity
process more logical and feasible.
There are many other issues which
were debated in the original rulemaking,
some of which are the subject of
litigation at this time. EPA does not
intend its issuance of back-to-back
rul in ikngsto imply a willingness to
open d cnnkrmitv rule to
which suit one or the other
pewiaees purpose. Both EPA and
DOT. of netarse. are very willing and
eag to assist trasispottation and air
quality planners in complying with the
rule and the statutory intent.
IV. Administrative Requirements
A Executive Order 12865
Under Executive Order 12866 (58 FR
51735, October 4. 1993). the Agency
must determine whether the regulatory
action is “significant” and therefore
subject to 0MB review and the
requirements of the Executive Order.
The Order defines “significant
regulatory action” as one that is likely
to result in a rule that may:
(1) Have an annual effect on the
economy of $100 million or more or
adversely affect in a material way the
economy, a sector of the economy,
productivity. competition. tobs. the
environment, public health or safety, or
State. local, or tribal governments or
communities;
(2) Create a serious inconsistency or
otherwise interfere wit.h an action taken
or planned by another agency;
(3) Materially alter the budgetary
impact of entitlements. grants. user lees,
or loan programs or the rights and
obligations of recipients thereof;
(4) Raise novel or policy issues arising
out of legal mandates, the President’s
priorities, or the principles set forth in
the Executive Order.
Pursuant to the terms of Executive
Order 12866, it has been determined
that this rule is a “signiflcant reguiatory
action.” As such, this action was
submitted to 0MB for review. Changes
made in response to 0MB suggestions or
recommendations will be documented
in the public record.
B. Reporting and Recordkeepmg
Requirements
This rule does not contain any
information collection requirements
from EPA which require approval by
0MB under the Paperwork Rcduction
Act of 1980. 44 U.s.c. 3501 et seq.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980
requires federal agencies to identify
potentially adverse impacts of federal
regulations upon small entities. In
instances where signiflcant impacts are
possible on a substantial number of
these entities, agencies are required to
perform a Regulatory Flexibility
Analysis (RFA).
EPA has determined that today’s
regulations will not have a significant
impact on a substantial number of small
entities. This regulation affects
mcderate and above ozone
nonattainineot areas, which are almost
exclusively urban areas of substantial
population, and affects federal agencies
arid metropolitan planning
organizations. shich by definition re
designated only for metropolitan area’,
with a population of at least 50.000
Therefore, as required under section
605 oF the Regulatory Flexibility Act, 5
U S C. 601 et seq., I certify that this
regulation does not have a significant
rnpact on a substantial number of small
entities.
List of Subjects
40 CFR Part 51
Envir onmcrital protection,
Administrative practice and procedure.
Carbon monoxide. Intergovernmental
relations, Nitrogen dioxide. Ozone,
Particulate Matter, Reporting and
Recordkeep ng Requirements. Volati!e
crganic compounds.
40 CFR Port 93
Administrati e practice and
procedure. Air pollution control. C. u.i
n’.orioxide. Intergovernmental r&j:i’.r .
Ozone.
Dated januar..’ 31. 1995.
Carol M. Browner,
.4din,r .,s troror
40 CFR parts 51 and 33 are in e::.l . .d
as follows:’
PARTS 51 AND 93—(AMENDED]
1. The authority citation for part 5%
cont nucs to read as follows:
Authority: 42 U Sc ?4O1(a (2). 74 7’ -
7502 a) and fbI. 7503. 7601ta1(i) and fj
2. The authority citation for part 93
continues to read as follows:
Authoritv:42 USC. i401— 7 6 7 1p.
3. The identical texts of 51 448 and
3 128 are amended as follows:
a. By redesignating paragraphs (bJ(2)
arid (c)(2) as (bl(3) and (c)(3);
b. In the newly redeisguated
paragraph (c)13)(iii) by revising the
reference ‘paragraphs (c)(2)(i) and (ii)”
to read “paragraphs (dll3lli) and (ii); and
c. By adding new paragraphs (a)(4).
(b)(2). (c)(2). and (d)(4).
The identical text of additions reads
as follows: § . Transition
from the interim period to the control
strategy period.
(a) *
(4) Until August 8. 1995, for areas
otherwise subject to paragraph (all 3) of
this section. the conformity lapse
imposed by the final sentence of
paragraph (a)(3) of this section shall not
apply. The conformity status of the
transportation plan and TIP shall lapse
on the date that highway sanctions as a
result of the disapproval are imposed on
the nonattainment area under section
179(b)(L) of the Clean Air Act, unless
another control strategy implemcntaI nn
-------
Federal Register / Vol 60.
No. 26 / Wednesday. February 8. 19 5 / Rules and Regulations 7453
plan revision is submitted to EPA and
found to be complete.
(b)
(2) Until August 5. 1995, for ozone
nonattair.ment areas here EPA has
notified the State. MPO, and DOT of the
States fsiure to subm 1 t a cor.t.rol
strategy impkmentat.on plan reusion
required by Clean Air Act sections
182(c}(2)(AJ and/or 182(c)(2)(B). failure
to submit an attainment demonstration
for an intrastate moderate ozone
nonattatnment area that chose to use the
Urban Airshed Model for such
demonstration, or failure to submit an
attainment demonstration for a
multistate moderate ozone
r.onata:nment area, the following sha!l
apply in lieu of the provisions of
paragraph (b)(i) of this section.
— (i) The conformity Status of the
‘ranspcrtation plan and TIP shall lapse
on the date that highway sanctions are
impoced on the nonattainmenc area for
such failure under section 179(b)(1) of
the Clean Air Act, unless the failure has
been remedied and acknowledged by a
letter from the EPA Regional
Administrator and
(ti) The consequences described in
paragraph (b)(i) of this section shall be
nullified if such provisions have been
applied as a result of a failure described
in para&aph (b)(2) of this section. and
paragraph (b)(2) of this section shall
henceforth apply wrth respect to any
such failure.
• S • S S
Ic)
(2) Until August 8. 1995, for the ozone
nonattainment areas described in
paragraph (c)(2)(i) of this section. the
Following shall apply in lieu of the
provisions of paragraph (oWl) of this
section:
(i) The conformity status of the
tra. sportation plan and TIP shall lapse
on the date that highway sanctions ‘e
imposed on the nonattainment area -
i nder section 179(b)(1) of the Clean Air
Act for the failures described below 5
unless the fi:lure has been remedied
and acknowledged by a letter from the
EPA Regional Administrator, in ozone
noiiattainment areas where EPA notifies
the State, MPO, and DOT that any of the
following control strategy
implementation plan revisions are
incomplete
(A) The irnpieznent.ation plan revision
due 4ovember 15. 1994. as required by
Clean Air Ad se ftcea .18Zc) 2)( andI
or
(B) l !i jnwnt d ation
requi ed lot moderate intrastate o ae
noriattainreent areas which chose to use
the Urban Airshed Model for such
demonstration and for multistate
moderate ozone nonatiainznent areas; or
(C) The VOC reasonable further
progress demonstration due November
15. 1993, as required by Clean Air Act
section 182(b)(i). ti EPA notes En its
incompleteness finding as described in
paragraph (cfl1)Uu) of this section that
the submittal would have been
considered complete with respect to
requirements for emission reductions if
all committed measures had been
submitted in enforceable form as
required by Clean Air Act section
llO(a)(Zl(A); and
(ii) The consequences described in
paragraph (cHi) of this section shall be
nulhfied if such provisions have been
applied as a result of a fd 1ure described
in paragraph (c)(211i) of this section, and
paragraph (d112) of this secLon shall
henceforth apply with respect to any
such failure.
• 5 5 5 I
(4) Until August 8. 1995, for areas
otherwise subject to paragraph (d)(3) of
this section. the conformity lapse
imposed by the final sentence of
paragraph (d)(3) of this section shall not
apply. The conformity status of the
transportation plan and TIP shall lapse
on the date that highway sanctions as a
result of the disapproval are imposed on
the nonat tainznent area under section
179 b)(1) of the Clean Air Act, unless
another control strategy implementation
plan revision is subm*tted to EPA and
found to be complete.
(FR Doc. 95—3003 Filed 2—7-95.8 45 aml
BILUNO CCCI ssee-eo-e
4O FR Parts52 and 81
(OHOS -2 -6229, OHOI-2-6230, 01 132-2-
6231; FRL —6T51—1J
Approval aM ‘omu4ge on of
lmplemen tIon Plans and De&gnatlon
of Areas for Air Quality PlannIng
Purpoeea; Ohio
AGENCYt Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: USEPA is approving a
redesignatlois request and maintenance
plan for Preble. Columbiana,, and
Jefferson County, Ohio as a revision to
Ohio’s State implementation Plan (SIP)
for ozone.
The revision is based on a request
from the State of Ohio to redesignate
these areas, and approve their
maintenance plans, and on the
supporting data the State submitted.
Under the Clean Air Act, designations
can be changed if sufficient data are
availdble to warrant such change.
EFFECTIVE DATE: This final rule ht co -m s
effective on March 10, 19’)5
ADDRESSES.: Copies of the requested
redesignatiori. maintenance plan. i.niJ
other materials relating to this
rulemaking are available for p .blic
inspection during normal business
hours at the following addresses. L ri IetL
States Environmental Protection
Agency, Region 5, Air and Radia ,oa
Division. 77 Vest Jackson Boule’.. -d
(AE—17J). Chicago. Illinois 60604, dild
Jerry Kurtzweg (ANR-.443). United
States Environmental Protection.
Agency, 401 M Street, S.W. .%ash rigtun.
D.C 20460 (It is recommended ;hdt :iti
telephone William Jones at (31 ) ai - ’
6055. before visiting the Region
Of fce I
FOR FURTHER INFORMATiON CONTACT:
William Jones, Regulation Debelo mi :it
Section. Air Enforcement Branch i—
17J). US Environmental Proteci:nn
Agency. Region 5. Chicago. liiin,i:’
60604. (312) 886—6058.
SUPPLEMENTARY INFORMA t iON: L’nd’r
Section 107(d) of the pre-amended
Clean Air Act (CAA), the United SI . L ’s
Environmental Protection Agency
(USEPA) promulgated the ozone
atta:nment status for each area of c ’.”r.
State. For the State of Ohio, Pr. b!i ’.
Columbiana, and Jefferson Countie s
were designated as nonattainment a: ’.i ’
for ozone. See 43 FR 8962 March 3.
1978). and 43 FR 45993 (October 5.
1978). On November 15, 1990. the Clean
Air Act Amendments of 1990 were
enacted. Pub. L. No. 101—549, 104 Stat.
2399. codified at 42 U.S C. 740 1—671q
Pursuant to Section 107(d)(1)(Clli) of the
amended CAA. Preble. Jefferson, and
Columbiana Counties retained their
designations of nonatta nm nt for ozone
by operation of law. See 56 FR 56694
(November 6, 1991). At the same time.
Preble and Jefferson Counties were
classified as transitional areas; and
Columbiana County was classified as an
incomplete data area.
The Ohio Environmental Protection
Agency (OEPA) requested that Preble
County be redesignated to attainment in
- a letter dated May 23, 1986; and that
Jefferson and Columbiana Counties be
redesignated to attainment in a letter
dated July 14. 1986. On December 20.
1993. the Un.ited States Environmental
Protection Agency (USEPA) proposed to
disapprove the requested
redesignauons. See 58 FR 66334. The
public comment period was from
December20, 1993. to January 19. 1994.
Only one public comment was rciceiveri
on the proposed rulemaking to
disapprove the redesignat.ions. It vac a
Jdnu.ary 18. 1994, letter from the State of
Ohio requesting a 90-day extension of
-------
7508
Federal Register / Vol. 60. No. 26 I Wednesday. February 8, 1995 / Proposed Rules
(f) Artifacts.
§ 1400.5 Requirement that assassination
records be released in their entirety.
An assassinaticn record shall be
disclosed in its entiret’. e’cept for
portions speci caii; postponed
pursuant to the grounds for
postponement of publtc disclosure of
records established in section 6 of the
ARCA, and no portions of any
assassination records shall be withheld
from public disclosure solely on
grounds of non-rele ance.
§ 1400.6 Ongtnals and copies.
(a) For purposes of determining
whether rigina!s or copies of
assassinat:on records may be made part
of the President John F Kennedy
Assassination Records Collection (the
JFK Records Callect on) to be
established under the ARCA
(1) In the case of papers. maps. and
other documentary material, the
Assassination Records Review Board
(the Board) may determine that a true
and accurate copy of the original is
sufficient.
(2) In the case of photographs. the
term record means the original negative
if available, otherwise, the earliest
generation print.
(3) In the case of motion pictures. the
term record means the camera original
if as ail ble. otnerwise. the earliest
gener3tioc prnt.
4) In the case olsound and ‘,ideo
recordings. the term record means the
orlgi ai record:rig. if a ailable.
otherwtse, the ea:l:est generation copy:
(5) In the case of machine-readable
informat:on. the Board may determine
tr.at a t. — .e and accura:e Lopv of the
‘original is suff&c:ent. ar.d
(6) Artifacts mean; the original oblect
itself
(‘o lin ca s ;‘. here a cupv. as deined
in pitragrapri ,a) of this sectton is
a’.:hor:zed by th Br. l to be included
n IFK Reco :s Co.lec ,icn the Bcard
ma at tis d : r t ,cn. :equ e a certi fled
c’ipv In cases he”e a i original, as
d iin d in paragraph (a; of this section.
is required for m iuston n the JFK
Records Cotlecucn t e Board may. at its
discretion. acc ?:t the st asailable
copy
§ 1400.7 AdditIonal guidance.
(a) A government ag sic off:ce. or
entity tncludes. for purposes of
interpreting and implementing the
ARC.’i. all depaitrnects. agesiaes.
offices, divisions, foreign offices.
bureaus, and deliberative bodies of any
Federal. state, or local government and
includes all inter’ or Lntra-agency
vorking groups. committees, and
meetings that possess or created records
relating to the assassination of President
Jchn F Kennedy
(hI The inclusion of artifacts n the
scope of the term assassination record is
understood to apply solely for purposes
of establishing the President John F
Kennedy Assassination Records
Collection and for fully implementing
the terms of the ARCA and has no direct
or indirect beanng on the interpretation
or implementation of any other statute
or regulation.
(C) In the case of artifacts deemed to
be assassination records and included :a
the John F. Kennedy Assassination
Records Collection, provision to the
public of photographs. d.ras%ings, or
similar materials depicttng the artifacts
shall be sufficient to comply with the
ARCA’s requirement that copies of
assassination ‘records be provided to the
public upon request. Other display to or
examination by the public of arttfacts tn
the John F. Kennedy Assassination
Records Collection shall occur under
terms and conditions establ shed b , the
National Archives and Records
Administration that are adEquate to
preserve and protect the artifacts for
posterity.
(d) The terms and, or, am oil, and the
plural and singular forms of nouns shail
be understood in their broadcast and
most inclusive sense and sha!l not be
understood to be terms of limitation
Any records identified with respect ‘o a
particular person also includes an
records for that person b any other
name, pseudonym, codes o d, s mbol.
number, crvptonvm or altas Ar.v record
descnbed with respect to an operation
or program includes any record
pertaining to that program by any other
name, pseudonym. codessord. s mbol.
number or cryptonym.
§ 1400.8 ImplementIng the A RCA—Catalog
of AssassInation Records.
(a) A Catalog of Assa.stna::on Recu;’i
(COAR) shall be created as the officmal
listmng of all records determined by the
Board to meet the definition of
assassination record.
(b) Notice of all decisions to include
records in the COAR will be published
in the Federal Register within 30 da s
of the decision.
(c) In listing records or groups of
records in the COAR. the Board must
determine that the record or group of
records will more likely than not
enhance, enrich, and broaden the
historical record of the assassination
Dated February 3. t9 5
David G. Marwell.
E ect tue Director, ,isso s,not. t, F ‘
Review Board
IFRDoc 95—31 12F:led 2—7—95 3 ,5 a , ’
OILLING CODE ee o-TD-M
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 51 and 93
(FRL —5149 —9J
Transportation Conformity Rule
Amendments: Transition to tP e Control
Strategy Period
AGENCY: Ens ironmental Protec : :o ’
Agenc (EPA)
ACTION: Proposed rule
SUMMARY: This action proposes’
permanently align the timing of ce” .
transpor.ation conformity COnSeqI.E c’c
with the imposition of Clean ::
highway sanctions. For ozone
nor attainment areas th art
15% emissions’reducuon state
implementation plan wtth a :c’ c’
finding, incomplete ozone aa:ri- n’
3% rate’of’progress plan. or find.. i f
failure to submit an ozone att:nme:’
‘1 “o rate-of-progress plan. 2nd ar as
whose control strategy imp:em r.’
plan icr ozone, carbon monc\tJe
partmculate matter, or nitrogen dic .,: ’-
dtsapprosed with a protec : :ve find ng
the conformity status oi the
translortation plan and program s o,id
not lapse as a result of such failure nt l
highs av sanctions for such failure are
effectis e under other Clean Air . ,.t
se ctions.
Thts action would deia the lapse n
conformity status, s%htch isould
o’he s ise prevent approval of ne’
h :ghway and transtt pro;ects. and a!!:
States more time to prevent the I tpse b
subm’it!ing complete ozone
implementation plans
EPA has published in the final rule
sect:on of this Federal Register a str:: r
interim final rule which takes effect
immediately and applIes for six mor.th
This proposal would apply the
provisions of the interim final rule
permanently.
DATES: Comments on this act:on must be
received by March 10. 1995. A public
hearing will be held at 10 30 a m on
February 22. 1995 in Washington. DC
ADDRESSES: Interested parties ma
submit written comments (tn dup!1c3:e.
if possible) to’ Air and Radiation Docket
and Information Center, U S
Ens ironmental Protection Agency.
Attention. Docket No. A—95—02, 401 \I
Street. S V . Washington. DC 20160
-------
Federal Register I Vol . 60, No. 26 I Wednesday. February 8. 1995 / Proposed Rules
7509
public hearing will be held at the
gamada Inn. 10 Thomas Circle NW.
Washington DC.
Materials relevant to this proposal
have been placed in Air and Radiation
Dccket A—9S--02 by EPA. The docket is
loca:ed at the above address in room M—
1500 Waters de Mall (around floor) and
may be inspected from 8 a.m to 4 p m..
Monday through Friday. includi-.g all
non-government holidays
FOR FURTMER INFORMATiON CONTACT:
Kathryn Sergeant. Emission Control
Strategies Branch. Emission Planning
and Strategies Division. U S.
En ironmental Protection Agency. 2565
Plymouth Road. Ann Arbor. M I 48105
(3131 668—4441.
SUPPLEMENTARY INFORMATION: The terms
and substance of the rule changes
oroposed in this document, and a
description of the subjects arid issues
.n olved, are included in the document
r.ounciug the intenm final rule
. t biishcd in the Final Rules Section of
::‘.is Federal Regisler. This proposal is
len:r.al ‘ri sLbstance to the t:lte:iin
‘ ‘iil rule, except that the proposal
. culd not limit the application of the
r ’,sed rule changes to a s!’c.rnoI tla
“ .od.
I)a’ed: Ja uarv t 1q95
C.uol SI. Srewner,
!L,r. 95—3002 2— ’— 5. 4’. :. il
S U. ‘40 coes asao-sa-D
0 CFR Part 130
1 P 5FG 527iP6C5; FRL-4936-.6)
M 20 ’O—ACIS
Pestcide Tolerance for Chlorpyrilos
GE’IY: Ensirtr.—ental Prutection
tEPA).
:cs: !‘ropos d r_l
MMARV: EPA j; r ’;ses to establish a
‘ ::e-i:-iitec . tu.err.ce f ir residues of
. . s’ictt’ :u ’ &lcrpvrifos lO.O-diethyl
: 1 •.56 -’ro- rvndvl)
in oron the raw
r.cI!!tur crrt r.odittes oats arid
i r:i’y vhea bI.lndad together in a
:‘Lik:die coiitairing 97% oats and 3%
i Jriey. The proposal to establish
c1 irnwii pennis,s.ble levels for
.‘ ‘s:dues of the insecticide was
r”quesied in a petition submitted by
General Mills.
DaTES. ’ Commeri(s.. i ieatified by the
document control number PP SF442;!
606P must be received on or before
%iarch 10. 1995.
ADDRESSES: B r mail, submit written
urnments to: PubliC Response and
Program Resources Branch. Field
Operations Division (7506C). Office of
Pesticide Programs. Environmental
Protection Agency. 401 M St., SW.
Washington. DC 20460. l ii person. bring
comments to: Rin. 1132. CM #2, 1921
Jefferson Davis Hwy.. Arlington. VA
22202.
Information submitted as a comment
ccncerning this notice may be claimed
confidential by marking any part or all
of that information as “Confidential
Business Information” (CBI).
l:iformation so marked will not be
disclosed except in accordance with
procedures set forth in 40 CFR part 2.
A copy of the comment that does not
contain C8 must be submitted for
inclusion in the public record.
Information not marked confidential
may be disclosed publicly by EPA
without prior notice. All written
comments w:l1 be available for publ:c
inspection in Rin. 1132 at the address
gtven above, from 8a.m. to 4 p m.
Monday through Friday. e cludir.g legal
ho lida vs
FO FURThER INFORMATION CONTACT: l3
mail. Dennis H. Edwards, Jr . Product
Manager (PM) 19, Registration Division
(7505C). Environmental Protection
Agency. 401 M Si.. SW, Washington.
DC 20460. Office location arid telephone
r.wriber Rm. 207. CM 52. 1921 Jefferson
Dav s H sy . ‘ riir.gion. ‘ A 202. (701)-
305-6386.
S4 PPLEMENTARY INFORMAT’ON: EPA
issued a notice. publlshe&in the
Federal Register of November 21. 1094
(i9 FR OO13). which announced that
General Mills had subm:tted pesticide
petition (PPJ SF4427 to EPA rt’qucsting
:hai the Administrator, pursuant to
section 408(e) of the Federal Fov d. Dr .
ar .d Cosmetic Act (FFDCA). 21 1’ S C
346a.axnend40CFR 180 342 by
establishing a tolerance for restd.ies of
the insecticide chlorpvn los in or on the
raw agricultural commodtt oars at 15
ppm. provided that such tolerance
applies only to oats that were treated
post-harvest with chlorpvrifos or. or
before June 15, 1994: that such to!eran e
applies only to oats to be used as animal
feed or as a constituent of animal feed
that. notwithstanding any crher
provision of law or regulation, this
to!erance does not authorize the
presence of residues of chlorpyrifos in
ans human food item made from such
treated oats, other than resid ues
resulting from the use of the oats for
animal feed purposes: and that such
tolerance expires on D ember 31. 19’36.
Chlorpyrifos is registered under the
Federal Insecticide. Fungicide. and
Rodenticide Act (FIFRA) for application
to many ;rowing crops: associated
tolerance regulations have been
established under the FFDC. ” . It is nor
however, registered for use on oats or
for treatment of stored grain. A pest
control operator under contract to
General Mills improperly treated stored
oats and fraudulently claimed to have
used a different pesticide. chlorpynfos-
methyl. that is registered for use on
stored grains such as oats. The illegal
residues were discovered by a routine
FDA inspection. Processed food
products manufactured from improperly
treated oats were determined by the
Agency not to be a human health hazard
and those that bad entered commerce
were not recalled. Processed prr ’Jucts
that had not yet entered com::ltrce were
retained by General Mills and
subsequentLy destroyed. A ppro’uma:el
18 million bushels of stored unmnilled
oats treated with chlorpyrifos are at
present controlled by General .lilis tir
its customers. Although the Ageric’. . .is
determined that the use of the s:ored
oats for the production of focd tices r.ot
constitute a human health hazard. o
approval has been sought by Generai
Mitts to use the treated oats f . r ham .t;
food purposes.
ChIor pyrifos is registered for uce ‘in
o:ner crops that are used for lives:ock ir
pou1’. v feed purposes. General ‘. i’
submitted data to demonstrate : .ut
use of treated oats for litesiock or
po..iltry feed will not yield :esid.ies
r.ea :. milk, or ee.gs that exceed . ‘
toiera’ces for chlorp ribs in those
c ‘,mmodittes. To ensure that the o.uc
i be unacceptable for human fond
uroduction. General Mills has stated
iat they will be blended to include nor
less than 3% barley and 97% oats
Accordingly. the definition of the rats
a riculturai commodity in the pet tion
has been amended to’ oats and barley
hen blended together i.n a mixture
cr.r. Ining 97% oats and 3% barle
There were no comments or reque
for a referral to an ad isor cor,un.tUc
in response to the notice i f
, 5
The data submitted i:i the p u’iut
u d other relevant material ha’.e b” ’.i
e aluated Toxicoiogical data
cor.sidered in support of the propcse4
to ”rance include:
1. A 2-year dog feeding studs with a
no-observed-effect-level (NOEL) for
s}stemic effects 0(1.0 milligram (:-‘. )I
kilogram (kgj/day and lowest-effect-
level (La) (increased li’.er tveiç tJ of
3 0 mg/kg/day. The NOELs for
cholinesterase (ChE) inhibition ‘ re as
follows: 0 01 mg’kg/day for plasma 0 1
rnglkg,’day for red blood cells. and 1 0
mgkg/day (or brain cells Lei-els tested
were0, 0.01. 0.03,0.1.1 0. arid 3 mc. /
kgfdav.
-------
02/15/95 17:09 202 5’
si r BY :u. S. ATTo rrs or ! iL ;
IO03/028
W4t
F LE
0 J99$
2
iN THE UNITED STATES DISTRICT
f ,
FOR THE NOR ’RERN DISTRICT 0? CALIFORNIA
EV L D NSE FUND,
rwc., at al.,
6
Plaintiff,
7 )
) WO. C 92 1636 TEN
)
CAROL. N. BROWNER, tah ) ORDER
V )
fl f andante. )
‘11
12 After further briefing by the parties and, upon
18 reconsideration oC pleintiffa’ Notion to Enforce Court
14 ‘ Order, the plaintiff a’ Notion for Recon iderotion La
15 hereby CRPaITED, thia Court’s Order or OCtober 13, 1994,
16 i hereby VACATED end the plaintif& Notion tn Rnforce
17 Court order is hereby GRANTED.
1$
19 .‘ coim
20 Section i76(c) of the Clean Air Act, eMcted in
21 1977, prokibita the federal govarnaent and etropo1itan
Dlanninq urgani atLona fros approving projects and
23 activitIes that re not in conrormity Qith a tate’
24 iinpleacntation plan ( SIP) for achieving or maintaining
fed ra1 air quality standards. 42 U.S.C. 7506 (c ).
Congress strengthenei the conformity r ’oq airo .nt when it.
o 27
t .s 2
-------
U2Y15/95 17:10 ‘&‘202 514 2584 D OJ—EDS
SE?%T SY.U.S.i flo vrrt’-c. a-q . ‘.. .• —.— — 1 OO4/o28
a nen4ed the Clean Air Act in 1 90. First, Congress
I specir .ed that “contoraity” means that a plan or proj cat
2 must corifoira to a SiP’s purpose Or eliminating or
3 reducing violations of federal air quality standards, and
4 achieving ezpeditioua attainaent of such standardc In
5 addItion, * “conforming proj eat” must not cause or
6 contribute to any nov violation, increase the frequency
7 or severity ot any violation or delay att inmcnt. . at
8 7506(c)(l). Second, Congress required PA to issue, by
9 November 15, ie i, nov rules ostahi 1 )ung speciric
io criteria and procedures that must be u cd in “determining
i i conformity.• 42 U.$.C. 7506(C)(4)(A). I .
12 i hen EPA failed to issue any confcw’ii ty rules y
13 the statnto y deadline, the Environmental Defense Fund
14 (“EDT”) the sierra Club and Carla SeLrd (hereafter
“plaintiffs”) filed this citizens’ suit under 4 U.S.C.
7604(a) (2) to compel EPA to issue the required rules.
17 After settlement d.tscusmieni, the parties entered into a
is stipulated cànsent decree that required EPA to issue
19 final conformity criteria and procedures by October 15,
20 1.993 . On ZPA’5 motion, we extended .he deadline 30 days
21 to )?evei ber’ 25, 1993. On November 24 and November 30.
22 1993 EPA, published (1) ‘a conformity rule for
23 transportation plans and pro e ta and (3) a conformity
24 rule for other fedexaUy funded or supported projects.
25 These final rules provid, criteria and procedures
26
- 2
27
28
-------
T8YJ.5. ti ?& 5 ’. 4 .L • ?JooS,028
for determining conformity in areas that have been
1 designated as “nonattainment” or “*aintenanc&’ ereas
2 however, EPA exprs 1y declined to ie ua any rule on a
3 d.iecrete but related cubjocti criteria and procedures for
4 areas tnat are designated “attainmen? or
5 •unclaesjfiablg” EPA ecplains that It decided to forego
6 any regulation for attainment areas be ai.ice, wider its
7 interpretation of the Clean Air Act, it has no mandatory
8 duty to do so: rather, EPA views this as a matter le:t to
g discretion. 1 55 Ped. R53. 63190. (“EPA continues
to believe that the statute Is ambiguous, and that it
11 provides disaretioury authority to [ issue conformity
12 rules for areas vhere there are no violations of the
13 )13AQs].’ (emphasis added)). Sea 58 Fed. Reg. 63214.
14 further states that It Lntøii4 Uj the near future”
15 to a supplemental notice of proposed rulemaking to
16 deal with conturmlLy k equirements for transportation
17 related projects n a limited category of attainment
18
19
“Nonattainiaent” areas are areas where the l ational
21 l sbient Air Quality Standards (“)IMQS”) have boon violated
for a particular pnl hitant. •Attainment” areas are areas
that meet the 1IMQS for a particular pollutant.
•Unalaosifiab3o 1 areas are those that cannot be classified
as one of the above on tile basis of available information.
42 U.S.C. U 7407(d) (1). ‘Maintenance” areas are areas that
24 were designated nanattainment sitar the 1990 amendments but
are subsequently determined to be in compliance idth Z4AAQS
25 and thus in “attainment.” 40 Cd.R. 51.392 55 !cd. Rog.
Gaa l7.
26 -
3
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areas.
I This notion is brought to coapel EPA to issue
2 confornity criteria for attainment and unclaceifiabla
3 creas pu iaAZtt to S 176(c) (4) (a) of the l ot, 42 U.S.C. 5
4 7506(c) (4) (A), that were due not later than November 15,
5 1991. Plaintiffs clala that the tatuts is not amb1gu ue
6 and that EPA ha. a clear, nondicoretianazy duty to
7 promulgate, by November 15, 1991, Linal transportation
8 and general conformity ruleR that get forth criteria and
9 proeoduras for dotcrainin5 conformity in att.sii cnt and
10 unulaea.ifimb le areas, as well a nonattaininent end
11 maintenance areas. Plaintiffs have also riled a petition
12 in the Court of Appeals for the Dj.atrict of Columbia
13 contending that the Linal. conformity rules for non—
14 attainment and maintenance areas are inade uats.
16 On Auguat 10, 1994, this Court ruled that it has
16 jurisdiction under the Clean Air Act citizen suit
17 provision to determine vhether EPA shQU].d be required to
18 undertaic. additional rulemaking. The Soif issue in this
19 motion is whether 1 176(c) ot the Clean Air Act.
20 ( 5 C.Ak. 5 ) 42 U.S.C. 5 7506(0), reçuires EPA to
21 promulgate oonfozmity criteria for attainment and
22 unclassifiable areas.
23
24 Z is unclear whether EPA also intends to promulgate,
at some Luture point, an additional ‘qeneral conformity”
rule for a limited category of attainment areas. 50
26 Ped. Rag. 63214.
27
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XZ LBGMj 5ND RD
I Ordinarily, the starting point in statutory
2 construction ic the language of the atatute itself.
nt’J 1 . Brotherhood of Teasater etg 4 i’ Dar ie2 . 439 U.S.
551, 557 (1979). The Court “must give etfect to the
unasbi guously ewpreued intent of Congress.” and ftlaSt
‘reject administrative conatruotionc which arc contrary
to clear congressional intent.” evront .S.A. The . v.
B a m1 Reso t befene .Conncil , 467 U.S. 838, 843, n.9
(1084). If the statute La silent or a biguoua with
10 re5pect to a speciZic issue, the couxt need only
•11 determine whether the agency’s construction of the
12 statute is reasonable and pcraieaiblc. ilovever, a
13 revieving court should reject administrative
14 constructions that are inconsistent with the statutory
15 mandat. or that frustrate the policy that Congress sought
16 to implement. te or Oreaon crnJ eiiair ur ozun] ea1
17 i nees university v. Raven , 854 P. d 346, 348 (9th Cir.
18 1988).
19
20 w
21 Section 3 .76( 0) (1) stat., that no az of the Federal.
Government may support “any ectivity which does not.
conXorm to an Implementation pLan approved under 74 0.
The section goes on to define “conformity’ to a plan as:
(A) conformity to an implementation p3.an’s purpose
of eliminating or reducing the severity and number
5
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of violations of the national ambient air quality
1 standara and achieving expeditious attainment of
such standards; and
2 (3) that Bush activities will not - -
3 (i) eause or contribut, to any new violation of
4 any standard in any area;
(ii) increase the frequency or severity of any
existing violation a: any st i”ard in any area;
6 or
• (iii) delay tisely attainment of any
etand rd...
8 42 U.S.C. 7506(c)(l). Section (4) directs the ZPA to
pro ulgats criteria and procedures for determining
10 conformity of projects described in section (1): thee, at
issue here is whether “any ictivity” required to
12 “conform’ as defined by section (1) is a term vhich
13 inaiudca activities in attainment areas.
14
16 3. Plain Language of the Itatnt.
16 Plaintiffs aontoztd that the languago of the statute
17 unambiguously means that attainment areas should be
subject to conformity analysis. Defendants, on the other
hand, assert that the text of the statute itself
aIIbiguous. plaintiffs first argus that the plain
21 langnage of section (C) (1) prohIbits funding or support
of “any aotivity ’ that deec not conform to an
i pLementetiun plan, not at “some” activities or
• activities in certain geographical areas. Moreover,
since activities must coi form to implementation plans,
26
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end under 7410 inpleinentation plans are required for
every portion o the state including attainment areas,
2 then every activity in every area aust necessarily
3
4 llext, plaintiffs point out that’ section (C) (13 (B) (1)
5 defines “conforidag aetivitise as those which will not
6 “cause or contribute, to any nay violation of any standard
7 in iv area. ’ 42 U.S.C. 75O6(c)(l)(5)(j)(e pbasjc
8 added). Again, plaintiffs argue that a plain reading of
9 “any area” incliade.a atteinsent end unclassifiable areas.
10 More iuiportantly. they assert that “new violation” ny
11 definition can only refer to a violation of UMQS in an
12 area designated atteinsent for a particular pollutant.
13 IC an area is already designated nonattainaent ror any
14 o pollutant, a worsening of pollutant levels vould not
15 censtituta a “new” violation .? Understood correctly, •5
16 (c)(3)(z)(i), (ii) , and (iii ), taXen together, prohibit
17 all possible ways jy which a nay project could inhibit
18 attainseat: section (1) forbids an increase in
19 . pollutants in areas that ha4 previously been at-
20 acceptable levels — in other words, attainsent areas;
21 section (ii) prchibits the acncerbatign of any existin j
In teat, ‘to cause a location or region to a cood
a standard aore elton or to cause a violation at a greater
24 concentration that previously cxiotcd and/or would
othervise exist during t e future pariød in question” is
explicitly defined as increasing the “frequency or
% severity” of a violation.’ 58 Fed. Bog. 62188, 92216-7.
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vje1atLo e in nonattainmant areas; aM section (iii)
ensures that progress in reducing the levei. of any given
2 pollutant vould not be slowed by a new project.
Section (c) (1) (A) provides that conformity is
defined, in part, as conformity to an implementation
5 plan’s purpos. of ‘eliminating or reducing the ecvcrity
6 nd number of violations TM of the 1I AQ3. 42 u.S.C.
7 7506(c)(l)(A). This provision could be read as
encompassing only nonattainment within the meaning of
conformity, since by definition attainment areas have flQ
10 violations to eliminate or reduce. However, Subsection
11 (A) can just as legitimately be construed as referring to
12 the generel purpose of stat. implementation plans — the
puxpose of eliminating violations. asading section
14 (e) (1) (A) in this way is faithful to the history of the
15 Lot and it. 1t vidaenta, which were intended to reaffirm
the ait’u purpose of protecting aix quality in general.
17 se C.A.A. I 10 1(b), 42 U.S.C. 7401(b) (purpose of the Act
18 is to ‘protect and enhanc&’ air quality).
Defendants contend that other portions of 176
20 refer specifically to nonattainment areas, and thereiorc
21 the range of the entire a. tiQfl. ss....a.&as.. 42
U .S.C. II 7506(c)(2)(D). (e)(3)(A)(iii), (C)(3)(b)(iii)
- However, there is no reason to read these subsections,
which refer to specific rcu uiroacnto for non ttairiment
areas, as limiting the scope oC bruader language such as
26
1t 8
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the reference to “ applicable transportation plan” in
Subsection (c)(2). (a is added)’
2 Thus, th. plain language Of the otetuta defines
3 conformity in such a way that maudatea conformity
4 analysis in in geographical areas.
5
6 The Structure of the Statuat..
7 The EPA argues that the meaning Of 5 76(c) is
8 nevertheless ambiguou. because of it plaoement within
the Clean Air Act. Section 176 is contained within
io Subpart 1, “Nonattajnment Areas in General”, of Part f l
“Plan Requirements for Nonattainm.nt Area.”, Of the ACte
Part C, on the other band, is entitled “Preverstian of
Deterioration of Air Quality”. The Supreme Court has
14 recognized that title, can be useful aide in resolving
15 ambignity eM discerning congressional intent. X9J d
16 corD. Y.Til 3y , 49U U.S. 114, 723 (1989), citi i TC v .
17 nd l Bro me. , 259 U.S. 385, 288—89 (1959). Bovever,
18 ____
19 ‘ In addition, plaintiffs argue that at least one of
the above references to nonattainment areas actually
undemines the EPA’s position. As mentioned above, several
subsections of (C) (fl refer specifically to flOTlattaininant
areas. However, 5 (c) (2) (A) requires that transportation
plans conform to the prohibition againat “nov violations”
22 found in 5 (c) (1) (5), in addition to separate requl r mctnt
for nozsattajnment areas. This refereflce would be
3 superfluous if the ‘ nev violations” language were corsctrucd
to refer only to nonattainment areas. Thus a close reading
24 of 5 (a) (2) not only contemplate. conformity analysis for
transportation prngrams in both attainment an
nonattainment areas, but lends support for the plaintiffs’
reading of ‘5 (a) (1) (8) (i).
26
9
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where, as here, there is no real anbiguity to resolve,
I section headings do not control plain language. Natur 1
2 Re ourceo Defense Council V. E.P.A. , 15 T.2d 1314, 3.321
(9th dr. 1990 (vor s in title of statute or heading of
4 section iay help resolve anbiguity but cannot create it
5 whore none would otherviso exist): Q .egonJub1ic Utility
6 cO in. v . Z.C.C. , 979 !. 2d 778, 780 (9th Cir. 1992) (‘The
7 title of a statute can be used to resolve anbiguity, but
8 tho title cannot control the plain seaning of a
10 In addition, the legislative evolution of the
11 conformity provision shove that placement within Part D
12 was not intended to denote the scope of 8 176(0). The
13 conformity requirement of f l7 (c) (1) was initially
14 proposed as cuboection (b) (9) (A) of I 110 in the 1977
15 Senate bill 252. S. Rep. No. 121, 95th Cong., lot Ness.,
16 157 (1977). gection 110 of S.252 demanded that each
17 stats producó an implementation plan, and applied to
18 areas with and without lIMOS violations. Subsection
19 110(h), on the other hand, Applied only to area with
20 ) MQS violations 5 (h) (1), 1j 1 . at 154 ( 1ech State
21 shall mubait an implementation plan xàision . . . for
The tjit of the proposed subsection (h) (9) (A)
provided, in part, that lfo department, agency, or
instrumentality of the Ped.ra Coverrunent shall Ci) engage
- - in, (i4 support in any wa or provide financial. assistance
for, (iii) license or perm .t, or Civ) approvo, any activity
which does not conform to a plan after it has been approvi ct
or promulgated under this section.”
27 10
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any air c uality coi trol region in Witch the (NAAOS) for
I oxidants and carbon sonoxids will not b attained by July
2 1, 1979.”) Within subsection (h), soas praviaion
defined their scope with reference to “this eubsection ”
4 and thus applied only to areas that violated RAAQS;
5 other provioiins, including (Ii) (9) (A), referred to
6 “this section” — I 110 arId therefore applied to all
areas raga dio s of whether they sat air quality
8 atan4ar e.
This distinction was incorporated into the 1 ii
10 asandments. Subsection (h) eventually becase Part D,
11 Np .a1 Req airesenta for Nonattainaent Areas.” ReZerences
12 in the iLcaft to “this subBection ” were changed to “this
13 Part”: “this section” be ’ ase “section 7410. U
14 5(h)(6)(D), S. Pep. lIe. 127, 95th Cong., l.t Seas., 1SG
lb (1s77), with C.A.A. 5 174(b), 91 Stat. 748 (1977) (current
16 Version at £2 U.S.C. 1 7504(b)). Congress. than,
17 i tentieno1ly chose to piece provisions which applied to
1* eli areas covered-by a SIP, i.e., both attainment and
19 nonattaiy .nt areas, vithin Part rI. The scope of each
20 provision’s coverage is delineated by reference either to
21 section 7410 or iart D, and therefore 5 176(0) ‘ 5
placement within Part D has litti. significance in and of
itself.
24
25
26 -
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C. Legislative History
1 Li statutory ]snguage is unclear, courts can turn to
2 legislative history for guidsncei however, if the
3 statutory lanq aqe is inanbiguouB. in the s sence of a
c1ear1y expressed legislative intent to the eontrary
that language aust ordinarily be regarded as conclusive. N
6 Censuaur Product $afetvCoin. v. GTZ Sv1vania,..Ifl c . 447
7 u.s. 102, 1.08, 2.00 S.Ct. 2051, 2056 (3 O). see also
8 S. v. ?evUle , 985 F.2d 992, 995 (9th Cir.), ..
denied , 113 S.Ct. 2425 (1993). flare, reexaaination Or
10 the legislative history reinforces the conclusion that
11 Congress Lntendod attainaent areas to be included in
12 conforaity analysis..
13 fran the language of the statute itself,
14 co itt.e reports represent the neat pcrsiaasive indicia
15 of congressional intent in enacting a statute. U. .v.
16 ç” tj N y ds ThQ 1 , 611 7.2d 1277, 1280 ni (9th
17 Cjr. 19 50)1 Xi i i v.U4 . , 73.3 1349, 1252 (7th Cir. 2.983).
18 The 1990 confuraity amendaents originated in thO bill
19 adopted by the $enate nviranasnt and Public Works
20 Coanittee. The coittco’; explanation .e the conforaity
21 tests in the Senate report closely tracks the language of
a 1 16(c) (13 (3) (i)”(iii) as they appear in the tatute.
The report states that
24 wCt3e purpose of the conformity language is to
assure that before in any way participating in an
activity, a edera1 agency must iind that the
26 activity does not cause or contribute to violationis
27 12
28
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of an ambient standard in any ar , does not
increase the severity or frequency of existing
violations; and does not delay progress in aehiavin
2 ambient standards in any n2 ttainment area.”
S. Pep. No. 228 101st Cong., 2d Seas. 28 (1990) (empha 1R
added). The report shares the broad Vj any way . . . in
any area” x guage of sections (c) (1) and (c) (1) (5) EL).
6 Letir, the zeport refers to the need to quantify the
7 environmental impact of adding highvay ‘eapacity TM in or
near attainment arena,” .jj at 29, a phrase which
suggests that areas with or without NAAQS violations
should be n 1ud. I ii the conformity requirement. Thus
the Senate report supports the plaintiffs’ position that
12 attainment; areas should be subject to the conformity
requirement.
14 The c p1icit references to nonettainment areas upon
15 which det ndants rely do not operate to Change the import
or the committee’s report. For instence, the committee
17 tata that for regional transportation plans, conformity
18 should be determined “by considering the impact of the
19 plan on vehicle usa patterns in the entire nonattairtmcnt
area . . . .“ g. 1 , at 29. Again, there I. no re on why
this specific requirement referring to .nonattaimmer’t
areas e ari1y conflicts vita a broader prescription
that cinforeity analysis be pertoraed in tteinment and
nonattainment areas • Another part of the report
describes the Administiator’s d lty of prc ulgating
criteria to be used in making conformity determinatioTta,
27 13
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and the statute’ requirement that “procedures and
I criteria for the eterm1 nations be incorporated in SIPS
2 for any osone or carbon o oxide monattainment area.” g• •
3 at 30. However, as plaintifts point out, this
requirement (which mandates promulgation bf Criteria only
5 for nonattainaez t areas) is taken from an early version
6 of the x e 5jfl — ii j W g ultimately changed to
require tl at weach atate incorpor its criteria for
8 assessing conformity. Co aro C.1 3O, S. p. No. 228,
9 201st Cong., let Sees. 55 (198 ), wiUi l7 (c) (4) (C),
lb 42 U.S.C. 7506(c)(4)(C)(”... each state ... shall submit
a revision to its implementation plan that includes
12 criteria and procedures for assessing the conformity of a
13 plan, prograh, or project subject to the conformity
14 requirements of this sub..ction9 b Thus this section
15 supports p1aintiff ’ reading because it yes actively
16 vhnnged to become more nclnsive.
17
18 . Tb. Rae prior iutrpr.tatioa ot somformity and
19 Comgrs.sLoaal “ratifisatioa” thereof.
Plaintiffs argue that until recently, the ZPA has
21 COnstrued 1 176(c) and its precursors as including
attainment areas vithin it asbit. They further . argue
tMt Congress has acquiesced in this interpretation by
In fact, there are o states that have
d) uattainssnt areas. Thus, th. change to poach state” from
etat i with carbon monoxide or ozone nonattaininent areas
mist have intended to extend to attainment areas.
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not explicitly disabusing t iB ZPA Of its interpretive
I stance. As the Suprelis Court has held,
2 (A) court nay accord great veLght to the
• longstanding interpretation placed on .a s catute by
an agency charged with its adLinistration. This is
especially so where Congress has reenaotcd the
statute without pertinent change. In these
circumat.ncs., congressional failure to revise or
repeal the agency’s interpretation is persuasive
evidence that the interpretation is the one intended
by Congress.
7 W.L.R.B. Sell Aarea.ps ece. , 416 U.S. 267, 274—5
(1974): r i11 Lynch Pierco.. Fenner S it
9 jno. v. Ourran , 456 U.s. 353, 382 nfl 66, 102 S.Ct. 1825w
10 1841 fl. 66 (l98 ).
‘11 In support of th.ir contention that the EPA has only
12 recently changed its construction of $ 176 (a), plaintiffs
o2fer several instances in which the EPA ei pressed an
14 intent to require cozifersity for attainacat areas. In
15 addition, plaintiffs point to evidence in the legislative
16 history that Congress Was aware or the KP ‘a
17 Interpretation,
38 !iret, plaintiffs argue that the EPA ’s initial
19 statenant of policy applying the Conforaity requirenent
20 attainaent areas case in the fors of the “Guidelines
21 . for Analysi, of Consistency beLveen Transportation and
Air Quality Plans and i’rograns” ( Ciae1inaa”) ti cued
joint’y with the Federal Iigbvay Administration in l 7S
(Plaintiff’s Exhibit 4). The Guidelines were prepared in
3975 to help c..arry out the requirement of V 109(j) of the
26
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Federal Aid Eighway Act. 23 U.S.C. 109(j), that
I highways be “cornijetont” with any state implementation
2 plan. The language of the five criteria by which
3 transportation plane and rograas were to demonstrate
consistency with SIPs mirrors the definition or
conformity set out in 176(c)
6 i. a o ( etropo1itan P1VULIDg Organization)
transportation plans and programs must not
I exacerbate e cisting violations of XAAQS.
2 • MPO transportation plans and programs must not
contribut• to a violation of WJ.Qfl for a pollutant
ror vhicb no soncantrations in violation of
standards have been m,asr,d.
3. XPO tranoportatien plan. and programs must not
LU delay the attainment of the )1UQS.
4, 4, )IPO transportation plans and programs must not
interfere with maintenance of NMQS, once the
standards are attained.
12 • o transportation plans and programs must
includ, all appropriate portions of State plans to
implement NAAQS .
14 Cuideli sg at 16—17, Plaintiffs’ Erk. 4. (emphasis
15 . added), criterion 2 of the G d4e1ines parallels
16 176(0) (1) ($)(i) in tflat it p?ohthits transportation
17 projects where there have been no violation . of XAAQS
in other words, what would now be called attainment
1 areas. 1 areas designated ‘priority X IX ’ with “no
20 violations of $AAQS” wore required to undergo consistency
analysis at the atlas of level 2 ma3or reviews,’ or every
The term. ‘attainment” aM ‘nonettainment” were not
‘ used until the, 2977 amendments to 1 207(d) .f the Act;
instead, air quality control reg1en were classified as
“priority I ’ if thiy had pollutant measurements above the
,, NAAQS or, whore no moaevxemontc had been made, had an urban
population ot over 200000: otherwise, they were designated.
26 “priority 1ZX; Guidelines at 3-4.
27 16
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five yearc. Guidelines at 11. Hawthorne Dec]..
I at 3. Thus, under the G ide1ines . areas without NA QS
2 violations wor, unequivocally, albeit leas frequently,
3 saabj cot to consistency review.
4 Next, plaintiffs shov that Congress was aware of the
5 Guidelines when it developed the conforaity criteria of S
6 176 (c). In cengreasiena , debate about the 1990
7 ei end zents, Senator Mucus explained his understanding of
8 tIle 1971 aaendnonts to the Senate. Mucus vas the
0 oponcor and tanager of S. 1630 (the Seziate bill that
10 bccai e the basis of the 1990 confornity a ndnez*.s) and
fl the chair of the subcoaiLtttoe that reported the bL.U, and
as such his oo ente are entitled to substantial weight
3 as evidence o congressional thtent. Zge. ,....e.q.,., L.L .LR..
14 v. Fruit &Vs etable Paçk p and Wajahcniseaen , 377 U.S.
15 59. 66 (1964) (eponoor), pons v. Chrysler Corn. Loan
16 070 T.Z4 238, 24 4 (D.c. dr..
17 3.98i)(c air of co ittoe),’ 1lsv. U. . , .713 P.24 1249,
18 1253 (7th Cir. 1983) (floor manager of bill),
19 geni , 464 U.S. 1069 (1984). -
Senator Baucus co aent.d that ‘ [ t)ho intent of the
21 ‘coutor ity’ provision edded to the Clean Air Act in 19T!
yes to give clear legislative, authority for thn
application of air quality criteria to the review end
2 approval of transportation plans as well as projects in
25 &Coord* ae with the 0 /ZP joint 197S gui4anoe.” 135
26
17
27
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Cong. Rec. Z 16912, col. 2 (daily ed. October 27,
1990) (emphasis added). Thus, COngraRS acknowledged that
it drew on the Guidelines — which required consistency
even for areas vith no $MQS violations — in crafting s
(c) (1) (B)’s conforalty tests. It Is especially telling
that Congress chose to follew the language of the
Guidelines’ consistency criteria so c1o ely; as noted
bove. (c)(1)(a)(i) parallels criterion 2 of the
Guidelines. In sum, ther . is convincing evidence that in
enacting the 1990 amei’dcnts, Congreeb intended to
continue the policy expressed in the Guidelines —— a
policy of oasurinq how new activities conform to state
implem taticn plans, even in areas With no NAAQS
vjoiations.
- r
- Defendants point out that the sea. statement by
Senator 8aue also sake. favorable reference to a later
supplemental gutdanc. with aer. detailed roqiairementa”
issued joiuLly by the EPA and tbe Pederal Highway
Administration ( “PliWA). That supplemental guidance,
entitled “Procedures for Conformance of Transportation
Plans, Proqrams and Projects VItn C) san Air Act State
Implementation Plans, • states that the “conformance finding
between trinspartation plans, programs and projects and an
appz uved ox promulgated SIP . . . will henceforth apply
only in nanattainment and maintenance areas requiring
transportation control plan, for transportation-related
pollutants.” Defendants’ EXh. 3.. at 3. Hovevor, the EPA
rejected this interpretation as early as the next year. in
a May, ieBI letter t. the PHWA, the SIA wrote to clarify
“misunderutaiidinqs’ between the two agenel s about the
N interpretation of our conformity procedures aqrcement.”
Plaintiffs’ Reply Exh. A at 1. The letter aBoorted, onong
other things, EPA’. belief that “any project which violates
a standard or exacerbate . an existing violation of a
standard does not conform to the SIP,. jgj, and explain.
thet the EPA ‘saw no need to reiterate what we assumed had
became an accepted criteria, • that a project which causes
18
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21
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Next, plaintiffs point to several instirnce in which
the EPA expressed its intent to apply the confor ity
r.i uiremant to attainmont areoa, or did, in fact, require
a shoving of conformity for a project located in
attainment or wiclassi fiable areas. Pox’ instance,
plaintiffs offer evidonc. of at 1ea t three pre ects
located in attainment or unclassifiable areas for vhicb
th F.P. ordered conformity .tudia “pi rsiaant to 176 (C)
of the Clean Air Act.” Q Plaintiffs’ Exhibita 5, 7,
and 10.
The EPA also issued an advance nøtica of proposed
rulemaking issued on April 1, 1900, in an effort to
“carxy out the intent of the 1977 amendments.” 45 Fed.
Reg. 21590 (April 3, 1980). In this notice, the EPA
•flatly assorts that
“EPA believes that the Congress tonal intent nt
section 176(c) was that federal . actions should not
be allovea to cause delay in the attsinmsnt of
maintenance of the NMQS in any state 0r±vi r 1atjcn
- prove tiort of ei anificant deteriorationl
g iir en s in araa vithair cleaner than t1 ’j
, g,• (emphasis jdded). This statement describing ZPA’5 -
O?/15/95 17:15 202 514 2384 DOJ-EDS
S T By:U.5. TI - r vrr& .c. .. -—
021/023
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3
4
5
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7
8
9
10
ii
12
13
14
16
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21
Z2
24
25
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violations vonid not confori. at 3.
The EPA stood by its earlier interpretation of the
Cuidsliztàe £n later years. In a November, 1988 letter to
the Mainistrator of the PXVA, the EPA took iaoue with the
FEWA’s interpretation of conformity and reiterated that if
plans or pro .cts “cause or contribute to existing or nev
etendard violations, or delay attainment, they ehoul.d not
be found in conformity. EPA’is definition Of conformity is
basically the same definition as that contained in the
consistency Guidelines of 1975 . . .“ Plaintiffs’ Reply
Exh.hat3. -
19
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a2/15/95 17:16 2O2 514 2584 DOJ—EDS
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belief that conformity applies to attainment areas was
I arguably incorporated into the 1981 final policy
2 regarding criteria i&sed to review 3IP revisions. 46 Fed.
Req. 7182 (January 22, 1981). That final po icy noted
that interim criteria for use in making and reviewing
5 conformity determinations are included in (the April 3980
6 advance notice].” X at 7184.
• 7 Finally, in 1987 the EPA £..usd a proposed call for
8 p revisions for a .ô a that ) faj e i to meet 1987
MQC deadlines. Pagt or this policy was a demand that
10 w(a] SIP’s conformity definition should state, at a
• ainimi , that a f federally approved action] subject
11 to section 176(c) viii conform with the SIP only if:
(1) me associated direct and indirect increase in
12 emissions, when considered Vith emissions from other
expected actions, will net cause or contribute to
• tflaviolattonofanylluQ 5 . .
14 S2 led. Req. 45044, 45099 (ov. sr 24. 1987). The -
15 8o *ats subcommittee report on the 1990 amehdmante reveals
that Congress was explicitly miedful of th4 proposal
17 when it indartook revisions of the Act. In fact, the
• 18 report- ztatea, “(t]he nonattainment policy proposed by
19 in 398 1 attempted to address many of the problems
20 illustrated above, (including failure to reviev the
21 adverse impact of transportation pro3 sets on air quality)
.. . many of the prnposzdc Vera incorporated in
legislation submitted to Congress b ’ the Prebident.. S.
Rap. No. 228, 102st Cong., let Seas. 12 (1989). Th
statement unambiguously demonstratne that CongroeB vac
26.
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Slt 8L f O23/O 28
aware of the EPA’s earlier interpretatj s applying 5
1 Wir.fl no NAAQS violations, and
2 naVeZth.1es . roenacted 5 176(c) vithoiit change in 1990.
3 Thua, as noted earlier, conqreas is presumed to have
4 ratified tne EPA’S earlier interpretation and intended ç
5 176(c) to apply to attainment areas, becauge
6 (vjhere Nan. agency’s statutory constr uction has been
fully brought to the attontion of the public and the
7 Congress, and the lattar ha not sought to alter the
interpretation although it has anended tbe statute
8 in other respecta, then presumably the legislative
intent nas been correctly discerned.”
10 W1 hi f QstuoodAccoo. v. AtlanticRieh e34 , 881
801, 808 (9th Cir. 1989), quoting North H8y n Bd..pf
12 Educ, y. sell , U.S. 512, 5 , 102 S.Ct. 1912, 1925
13 (19823 (citations omitted). -
14
lb
-16 Courts are required to “honor the clear meaning of a
17 statute, as revealed by its language, purpose, and
history. • . Xfl ’ ! - ROt1i5Y cod of Teamsters ‘ .Denj ] , 439
U.S. 551, 556 ii. 20 (1979). In this case, the language
of 5 276(c) plainly embrace. all geographical areas,
21 including attainment and unclassifiable areas, as veil as
‘tonattainmont and maintenance area.. The legislative
• history of the tatut suqgests that all ar.a should be
subject to conformity analysis. Finally, under the
princip’e articulated in 1I.L.R. v. flail Ieros , -
au ora , Congrcco in effect ratified t1i EPA ’s earlier
27 21
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2i15/95 17:17 V202 514 2584 DOJ-EDS
s T BY:U.S.ATTO .NE’r urri’-c. JO24/O28
interpretation of 5 176 (C) -- in vh.ich the conformity
1 requirement applied everywhere there was a SIP — by
2 reenectinq that provision without change. In abort, the
3 language of the statute La plain and Congress’s intent is
4 clcar § 176(c) ‘a conformity raqu1.rei ent app) le g in all
5 areas
S Therefore, the October 33, 1994 Order should be
7 vacated, the plaintiffs’ Motion for Reconsideration
* should be GRMTW and their wotion for Enforcement of
o Prior Court Order hou1d also ‘be 01 MITED. The clean Air
10 Act require. all federal2.y-euppor’ted activities to
11 satisfy tZZS require nents of 1 176(c), vitheut regard to
12 their geographic location. Thus, dcfendai te have failed
IS to carry out their nondiscretionary duties estab1 shed by
14 376(c) (4) ( ) f tJ a t, 42 U.S.C. I 6504(c) (4) (1), and
15 are in violation of the March 3, 19 consent ducree in
16 this action.
17 congress originally at loved the EPA one year in
18 whIch to promulgate conformity criteria. . 1 176(c) (4) (A).
1 Plai itiffa request that the ZPA be glinted 180 days in
20 which to publish conformity criteria for attainment and
21 unclassifiable areas; the EPA protest. that it needs at
least 18 months to do so. At th,ti point. almost 39
monthii have already passed lines the statutory deadline
24 or November 15, 1991.
As a starting point for setting a compliance
27 22
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OZ/15/95 17:17 2O2 514 2584 DOJ-EDS
s r gy:U.s.AflORNEYS OFYiC -• . .-. I jO25/O28
timetable, courts h v fjrs.t turned to the time fraiue
1 mandated by Congress — in this case one year. Unlasi
2 the EP a can show that compliance With Its statutory
3 obligations Within that time is impossible or infeasible,
4 it is obligated to issue rspalations within that period.
Sierra ]pb homes , 658 7. SUpp. 165, 3.71 (N.D. Cal.
6 1987); ura1 Eg nurees flefeheaCoun i1 y Train , 510
7 t. 692. 712 (D.C. Cir. 1974). The agency bears a
8 “heavy burdem” of demonstrating impossibility. A.a
P er Co.v. Costie , 6i6 F.2d 323, 359 (1979). In
10 appropriate cire 3a.tancea, couzta have demanded
11 compliance in time periods ahoiter than those mandated by
12 Congress. ierra Cl v . Thackelsha is , 602 2.
13 su_pp. 192, 89 (LD. Cal. 3984) (reqiairinq compliance .IPI
14 legs time than required by statute vhsre agency
15 4e1inç ant -in issuing rules and “no justification appea:s
16 for L1owing more ‘footdragg4 g’ by the EPA”)
17 Defandante ofZer the declaration of Mn Goode, the
18 acting Deputy Assistant Administrator far Air and
19 Radiation of the EPA, stating that an eighteen r onth
20 schedule is rsasonably expeditious.” GoOd. Deal, at 2.0,
21 and pointing cut that promulgating rcguletione viii be a
22 coapLe roc..s rog iiring consultation with other
23 agancico and al3ocatiön8 at time from already busy etaff.
ifevever, just as in 51L . ra Club v. ckeleh u , the
25 thrust of the declaration is really no more than ‘further
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C.2/15/95 17:17 ‘ 2O2 514 2584 DOJ—EDS
s! ff BY : . s ATIORNE’rS orri ._. — -- . I JO26/O28
study always sakes everything better.’ 602 1. Supp.
1 892, 099 (M.D. Cal. 984). Defendants have nbt ahoum
2 that compliance vithin loss than eighteen onthe would be
3 iitposatble, nor that oomplio3%ce in baa time is not
4 reasànehly achievable.
5 soreover, derendants have airsady completed a
6 Bignificant pârtion of the task that Congress gave them
7 en. year to complete. EPA M3 already promulgated
8 conformity criteria for msi ntsnancs and nonattain ent
areas pursuant to the Conaent Decree. Thua, developing
10 and ieouing the remaining criteria should certainly take
less than twelve months. N.m.1)J. V .
12 F .5npp. 394, 395 (LD.N . . 3.992)(findinq that, in an
‘13 analogous ituetion , VEPA is sufficiently far along in
14 the proces8 of devising regulations to comply v th the
15 &chedule plaintiff prepoooc.9
10
17 Accordingly, IT IS EPEB1 ORD ED Tli T:
18
19 A. Within 210 dsya of the date of this ora.r,
20 defendants Browner and the Environmental Protection
21 AgenCy shall, after giving the public at least 6u days of
those days to conment vu the proposed regu3 ations,
promulgate tinal regulationa containing critoria and
procedures by which the conformity of transportation
plans, progress and proj sois viii ha determined in every
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O /15/95 17:18 ‘ 2O2 514 2584 DOJ—EDS
s \rr SYU. S. AT1O NE?S OftR .. l JO27/o28
area subject to an i ple entation plan that is not
I covered by the transportation confo aity regulations
2 published on 1 ovetber 24, 1993.
B. Within 270 days of the data 0? thIs Order,
4 defendants ovner and the Environnental Protection
5 Agency shall, after giving the public at least 60 days of
6 those days to co aent on the proposed regulations,
7 proauigatci Pinal ragu1ation. containing criteria end
8 procod arsc by which the conforaity uf federally supported
activities uUier than transportation plans, prograss and
ID projects viii ha determined in every area subject to an
11 implementation plan that is not covered by the general
12 confor aity requlations published on Wovi *b.r 30, 1993.
13 C. Thirty days after the issuance of this Order,
14 defendants hail submit a status report to the Court and
15 other parties, setting out the schedul upon ubich each
16 of the a min atrative steps rc*ainiig to be accomplished
17 in order to aect the 370-day deadline viii be carried
18 out.
19 D. the Court shall retain jurisdiction over this
20 tatter until defendants obligations as set forth above
21 have been completed and any c]aime for attorney.’ fcc
22 have been resolved. TJhen defendants’ obligations set ui.iL
a ovo arc oe*pletcd and any claims for attorneys’ tees
have been resolved, this case shall be disini esed with
prej a&tce as against each and every defendant. The
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02/15/95 17:18 ‘5202 514 2584 DOJ-EDS
sENT BY:U.S.ATTORNEYS CE ; ‘‘ ‘- •1 ••Av’’ • 1 O28/028
United States ehaU tile the aDpropriate otiCQ with the
I
Court SO that the Clerk ay close the fil..
2 E. Plaintiffe say, by noticed otion, re-open the
3 case to secure further relief c spellthg defendant ’
4 coaplian e vith the Court’s Orders.
5 F. Either plaintiffs or defendants say, by noticed
6 notion, reopen the case to sodify the new order for good
7 cause shown.
8
9 x is so on a .
10 T D _ / /tr __
11 UNITED STATES DXSTEICT COURT
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UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
NATIONAL VEHICLE AND FUEL EMISSIONS LABORATORY
2565 PLYMOUTH ROAD
ANN ARBOR, MICHIGAN 48105
OFFICE OF
AIR AND PAOIATION
APR 051995
MEMORANDUM
SUBJECT: Transportation Conformity: Assumptions Regarding Implementation of
Committed Measures
FROM: Philip A. Lorang, Director
Emission Planning and S ivision
TO: Chief: Air, Pesticides and Toxics M Mgdilr Region I
Chief: Air Programs Branch, Regions 2,3,4, ,8,9,1O
Chief: Air Programs Branch, Region 7
Chief: Air Enforcement Branch, Region 5
Chief: Air, Toxics and Radiation Branch, Region 5
Chief: Regulations Development Branch, Region 5
I understand that there is concern among state air agencies and the transportation
community regarding the contbrnuty implications of suspension and other delays in [ FM
implementation. In particular, there is concem that the motor vehicle emissions budget
in the 15% SIP assumes uiiplanemation of IiM by a certain date, and transportation plans
and programs will not be able to demonstrate consistency with this budget if the
conformity determination cannot also assume credit for I/M implementation by that date.
SectionSi 452 (93.130), ‘Procedures for determining regional transportation-
related emrnii ’ establishes requirements regarding which projects and activities may
be included in regional analysis for emission reduction credit. Section 51.452(aX4) states
that ‘during the transitional period, control measures or programs which are committed to
in an implementation plan submission...which has not received final EPA action...may be
assumed for emission reductiàn credit for the purpose of demonstrating that the
requirements of § 5 1.428 through 51.432 [ budget tests] are satisfied.”’
Dc pttc §51 .452(aX4Ys rcf w oa to iacompktcneas as an EPA tinal o ucn, areas with incompIetcn tinding ’
a iJ pumn Ued to take credit fur the ummitted nIessur in the aibnuu t1 Si? when p iiIciqg the iaimp&nisun U i
ti.. submillai SIPs bud d (see memurathium from Philip IMan$ to R iiunaI Air 13raa b Chiefs, ‘Tran xiatioo
Cutthxmity Q&As, ’ May 2, 1994).
P rreC , Rec cIe Pager
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which are outside the transportation community’s control are not implemented on
schedule, and an overall strategy has not yet been approved. Until EPA approves an
overall 15% (or attainment) strategy which identifies how the 15% emission reductions
(or attainment) will be achieved. assumptions about these emission reductions must be
made for conformity purposes.
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SUMMARY Q & A’s
Q: What are the confàrniity implications of delays in J/M program implementation or the
suspension of JIM?
A: There are no conformity implications from delays in I/M program implementation
until a revised 15% SIP reflecting the 1/M changes has been submitted to EPA. When
conformity must be demonstrated to a 15% SIP submission which has not been approved,
control measures such as I/M may be assumed to be implemented according to the
schedule committed to in the 15% SIP. Conformity determinations are not required to
reflect changes in 1/M program implementation until a revised 15% SIP has been
submitted to EPA. This policy is expressed in the existing conformity rule and applies
immediately. It applies whether or not the IIM SIP has been approved, provided that the
15% SIP has not yet been approved or disapproved.
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D Sr 4 .
— UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
. 1\ 1 LL . Research Triangle Park. North Carolina 27711
0
PRO ’
APR 23 1995
Ms. Barbara Baird
Assistant District Counsel
South Coast Air Quality Management District
21865 E. Copley Drive
Diamond Bar, CA 91765
Dear Ms. Baird:
I am writing this letter to clarify EPA’s interpretation of
the General Conformity requirements as they pertain to regional
water and/or wastewater projects. Specifically, the issue is
whether conformity determinations for wastewater treatment
facilities in areas with outdated SIPs will be constrained to a
requirement of consistency with the population forecasts of those
plans.
Section 93.158(a)(5)(v) of the General Conformity rule (40
C.F.R. Part 93, Subpart B) provides that actions involving
regional water and/or wastewater projects can be found to conform
if they are sized to meet only the needs of the population
projections that are in the applicable SIP. This section of the
rule provides a specific criterion for determining conformity of
regional water and/or wastewater projects. The rule does not,
however, require that this criterion be used to make conformity
determinations for these facilities. Rather, it is one of
several options available under the rule to show conformity.
Further, the conformity rule at § 93.159 (a)(1) restates the
statutory requirement of § 176(c)(1) and provides that the
conformity analyses supporting a conformity determination must be
based on the latest planning assumptions, which must be derived
from the most recently approved estimates of population,
employment, and travel approved by the Metropolitan Planning
Organization (“MPO”). In addition, § 93.152 defines “applicable
sIp” as that plan, or most recent revision thereof, which has
been approved by EPA (or a plan promulgated by EPA) under § 110
of the CAA. “Applicable SIP” does not include a plan or revision
thereof which has been only submitted to but not yet approved by
EPA.
When these provisions are read together, they mean that §
93.158(a)(5)(v) of the rule can be used to show conformity only
if the latest EPA approved SIP uses the latest estimates of
population approved by the MPO. Conformity cannot be determined
using this criterion in a nonattainment’ area whose applicable SIP
uses outdated estimates of population. Thus, for example,
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2
because the latest approved SIP for the South Coast is the 1979
plan, wastewater facilities there could not be shown to conform
using this criterion because the MPO has, since the 1979 plan,
issued more recent estimates of population. Conformity for
wastewater facilities in the South Coast would have to be
determined using one of the other criteria available in § 93.158.
These criteria include: 1) 93.158(a)(5)(iv) which is applicable
to activities where EPA has not approved a SIP revision since
1990; and 2) § 93.158(a)(5)(i)(B) which permits the Governor of a
state to commit to revise the SIP to accommodate the unaccounted
emissions from the project (even if the SIP was approved prior to
1990). Other criteria in the rule for showing conformity may
also be applicable.
Please note that a general conformity determination is only
required where a Federal agency, such as EPA, is funding,
permitting, or otherwise supporting a water and/or wastewater
projects. For example, EPA can fund the construction of
wastewater treatment facilities through State Revolving Fund
(SRF) capitalization grants. Under Title V I of the Clean Water
Act, EPA provides grants each year to states to capitalize their
state revolving funds (“capitalization grants”). The SRF, in
turn, provides loans and other types of assistance, but not
grants, to communities and local agencies for, among other
projects, the construction of publicly-owned wastewater treatment
facilities. EPA provides capitalization grants based on a
state’s Intended Use Plan (IUP) which, in part, describes
projects eligible for funding under the SRF but which may not
actually receive financial assistance from the fund. The project
level funding decisions are made at a later time by the state.
Consequently, EPA’S action to award the SRF capitalization grant
is considered a programmatic level decision whose emissions are
not reasonably foreseeable. See, Preamble to EPA’S Proposed
General Conformity Regulation, 48 Federal Register 13840 (March
15, 1993). Therefore, under § 93.153(c)(3) of the conformity
rule, these capitalization grants do not require a conformity
determination.
However, a general conformity determination is necessary for
the award of SRF financial assistance to fund a specific project
if the project is supported with funds “directly made available
by” an EPA capitalization grant. These projects are deemed
federally-assisted and are subject to certain federal “cross-
cutter statutes,” including CAA conformity. Under the
capitalization grant agreement with EPA, the State funding the
specific project is required to do the conformity determination
for EPA.
The question then arises whether emissions from population
growth need to be assessed for conformity determinations for
specific SRF projects,. The emissions fmom population growth
would be classified as indirect emissions. under the general
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3
conformity rule. But because the EPA does not maintain a
“continuing program responsibility” over these indirect emissions
they would not be included in the total emissions from the
project. Unlike the construction grant program of Title II of
the Clean Water Act, which restricts grant funding to only those
projects which serve existing capacity, Title VI does not
restrict SRF money in this way. Therefore, in SRF-funded
projects, EPA does not have any authority to control or condition
emissions resulting from growth, and the emissions from any
induced growth are not indirect emissions with respect to
conformity and need not be assessed in a required conformity
determination.
In conclusion, Federally—supported water and/or wastewater
projects that exceed current population needs or that are not
consistent with population projections in an outdated applicable
SIP can still be shown to conform. The General Conformity rule,
which offers several options to show conformity, provides enough
flexibility so that these types of projects are not constrained
to showing conformity only under § 93.158(a)(5)(v).
I trust this letter has addressed your concerns on this
issue. If you have any questions please call me at (202) 260-
4491.
Sincerely,
Gary B’la is
Office of Air and Radiation
cc: Sara Schneeberg
Robert Moyer
Robert Pallarino
Connie Day, SCAQMD
Terry Parker, CARB
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D. Contingency Measures
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D. Contingency Measures
D.].. Early Implementation of Contingency Measures for Ozone and
Carbon Monoxide (CO) Nonattainxnent Areas - - Aug. 13, 1993 memo
from G.T. Helms
D.2. Clarification of Issues Regarding the Contingency Measures
that are due November 15, 1993 for Moderate and Above Ozone
Nonattainment Areas -- Nov. 8, 1993 memo from D. Kent Berry
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(O
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
. 1S 1L ] Research Triangle Park, North Carolina 27711
‘4j o’ ’
1 3 AUG 1993
MEMORANDUM
SUBJECT: Early Implementation of Contingency Measures for
Ozone and Carbon Monoxide (CO) Nonattainment Areas
FROM: G. T. Helms,
Ozone/Carbon Monoxiae Programs Branch (MD—15)
TO: Air Branch Chief, Regions I—X
Several. Regional Offices have indicated that somi States are
interested in implementing their contingency measures before they
are required to be implemented. The following discussion
outlines the contingency measure requirements for ozone and CO
nonattainment areas and provides a pred cisional staff
recommendation for the early implementation of contingency
measures in certain ozone and CO nonattainment areas.
The Clean Air Act requires contingency measures in the
following three cases:
1. Section 172(c) (9) requires moderate and above ázone and
CO nonattainment areas (in addition to other areas) to adopt and
submit contingency iaeasures by November 15, 1993, as established
by the Environmental Protection Agency (EPA). These measures
must be implemented if the area fails to make reasonable further
progress (RFP) or to attain the national ambient air quality
standards (NAAQS) by the applicable attainment date.
2. Section 182(c) (9) requires serious and above ozone
nonattairunent areas to adopt contingency measures to be
implemented if the area fails to meet any applicable milestone.
3. Section 187 (a) (3) requires contingency measures to have
been adopted by November 15, 1992 for CO nonattainment areas with
a design value greater than 12.7 parts per million. These
measures are to be implemented if any estimate of actual vehicle
miles traveled (VMT) or updated projections of future VMT in the
area which is submitted in an annual report exceeds the number
predicted in the most recent prior forecast.
When triggered, the contingency measures must be implemented
without further action by the State or EPA.
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2
We are aware of several areas that wish to implement their
contingency measures early, even though the measures are not
needed now for their attainment demonstration or to meet RFP. It
seems illogical to penalize nonattainment areas that are taking
extra steps to ensure attainment of the NAAQS by having them
adopt additional contingency measures now, Therefore, in cases
of early implementation of State contingency measures, we do not
feel that it is necessary now to adopt additional contingency
measures to backfill for the early activation of contingency
measures. Of course, if an area fails to attain, fails to
demonstrate RPP, or misses a milestone, then additional
contingency measures are needed and must be adopted in accordance
with previous guidance (“General Preamble for Implementation of
Title I of the Clean. Air Act Amendments of 1990,” Federal
Register , April 16, 1992).
We trust that this information will be of help to you as you
guide your States through the State implementation plan
development process. I suggest that you provide a copy of this
memo to your affected State and local agencies. If you have
questions or comments, please contact Kiinber Scavo at (919) 541—
3354
cc: William Becker, STAPPA/ALAPCO
Kent Berry, AQMD
Gary Dolce, OMS
Carla Oldham, AQMD
Rich Ossias, 0CC
Sharon Reinders, AQND
Kimber Scavo, AQMD
Sara Schneeburg, OGC
Laurel Schultz, AQMD
- John Silvasi, AQMD
Jan Tierney, OGC
SIP Control Strategy Sub-Work Group
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919 41 0824 EPA_OZONE-LU ____
10/04/94 10:49 —. — ____
/ )
FAX TRANSMITTAL 1 -;;;; :-- -----
ZffMORANDUI4
Subject: Contingency Mcasures for Moderate arid Above Ozone
Nonattain]nent Areas
From: G. 2 ’. Helms, Chief
Ozone/Carbon Monoxide Programs Branch
Richard Ossias,
office of General Counsel
To: Air Branch Chief, Regions L-X
The U.S. Environmental Protection Agency (EPA) stated in.
“Guidance on Issues Related to 15 , Percent Rate-of—Progress Plans,
“Memorandum from Michael H. Shapiro, acting Assistant
Administrator for Air and Radiation, to the Regional Air Division
Directors, August 23, 1993 that
in order to give States enough time to consult EPA’s
- guidance on NO substitution and to determine if NO
reductions are needed, EPA will accept committals for
contingency measures that are due November 15, 1993.
If the contingency measures themselves are not included
with the Novembor 15, 1993 submittal, that submittal
must include a commitment, with schedule, for
contingency measures to be adopted by November 15,
1994.
The- [ atural Resourcec Defense Council (NRDC) v. EPA court
decision on committal State implementation plans’ has affected
this previous guidance. As a result, the Office of Air Quality
Planning and Standards and the Office of General Counsel are
advising the Regional offices to issue findings letters• for
contingency measures as soon as possible but no later than
January 15, 1994 if the contingency measures contained a
commitment, (Of course, if there was no submittal or the
submittal was. incomplete, a finding of failure to submit or
incompleteness should have already been issued.)
rRn c V. 22 F.3d 1125 (D.C. Cir. 1994).
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10,0.1/94 10:50 ‘ 919 541 0324 EPA_OZONE-CO - .- .-. OGC—R — (aJ0O2/OO
Any questions regarding this matter may be directed to
Kimber Scavo at (919) 541—3354, Laurel Schu1t at (919) 541—5511,
or Howard Hoffman, at (703) 235—5326.
cc: William Becker STAPPA/ALAPCO
Tohn Chamberlin OPPE
Sally Shaver AQMD
Howard Hoffman OGC
1(imber Scavo ? QMD
Sara Schneeburq OGC
Laurel Schultz AQMD
John Seitz CD
John Silvasi AQMD
Lydia Wegman- OD
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E. Designations, Classifi-
cations, and Bump—ups
-------
E. Designations. Classifications, and BumrD-ups
E.1. Ozone and Carbon Monoxide Design Value Calculations --
June 18, 1990 memo from William G. Laxton
E.2. Nonattaininent Designations and Classifications -- Nov. 14,
1990 memo from John S. Seitz
E.3. Procedural Requirements f or Sulfur Dioxide, Lead, and
Particulate Matter Designations -- Dec. 28, 1990 memo from John
Calcagni
E.4. Guidance on Designations/Classifications for Ozone and
Carbon Monoxide - - Jan. 22, 1991 memo from John S. Seitz
E.5. Air Quality Designations and Classifications; Final Rule 56
FR 56695 (Nov. 6, 1991)
E.6. Designations of Areas for Air Quality Planning Purposes;
mendments and Corrections (Final Rule) 57 FR 56762 (Nov. 30,
1992)
E.7. Procedures for Processing Bump Ups and Ext nsion Requests
for Marginal Ozone Nonattainment Areas - - Feb. 3, 1994 memo from
D. Kent Berry
E.8. Nonattainment Area Attainment Determinations, “Bump Ups,”
and Attainment Date Extension Requests - - Initiation of
Delegation and Procedural Guidance - - Aug. 26, 1994 - - memo from
John S. Seitz
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/0c 1 .... ,D(j ‘90-
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Aur Quality Planning and Standards
______ Research Triangle Park. Nclrth Carolina 27711
- JUN18 IB9O
MEMORANDUM
SUBJECT: Ozone and Carbon Monoxide Design Value Calculatons
FROM: William G. Laxton, Director
Technical Support Division (MD-14)
TO: See Below
In discussions related to the Clean Air Act legislation, design values
for ozone and carbon monoxide are receiving particular attention. Previously,
it sufficed to designate areas as either attainment or nonattainment but now
areas will be further classified into different categories based upon the
magnitude of the appropriate design value. This additional classification
— step places added emphasis on the need to accurately determine these design
values. The classification will be done according to concentration cutpoints,
and on a schedule, specified in the legislation.
Obviously, once this process is set in motion we .ill be working very
closely with you to develop these design values. However, I thought it would
be appropriate to reiterate our design value computation procedures in advance
to help people anticipate the types of data review questions that may arise.
The computation procedures stated here are consistent with our previous
methods. There are differences between the procedures for ozone and carbon
monoxide because the ozone National Ambient Air Quality Standard (NAAQS) is
structured in terms of expected exceedances while the carbon monoxide NAAQS
uses the older “once per year” format. The most .apparent difference is that
the CO design values are based upon 2 years of data while design values for
ozone use 3 years. Another difference is that the ozone NAAQS uses the daily
maximum ozone value while the CO NAAQS considers running 8-hour averages so
that, even though they must be non-overlapping, it is possible to have more
than one CO exceedance per day. Because of these differences, it is
convenient to discuss each pollutant separately. With respect to terminology,
you may hear the CO design value approach referred to as “the highest of the
second highs”, while the ozone design value is frequently simplified as “the
fourth high in 3 years.”
One point to remember is that all locations within an area have to meet
the standard ‘N AQS)r. Therefore, when we do our evaluations, we look at each
individual sit o in ke sure that every site meets the standard. A separate
design alue developed for each site that does not meet the NAAQS, and the
highest of these design values is the design value for the area.
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2
Carbon Monoxide
CO design values are discussed in terms of the 8-hour CO NAAQS, rather
than the 1-hour NAAQS, because the 8-hour NAAQS is typically the standard of
concern. However, a 1-hour design value would be computed In the same manner.
For 8-hour CO, we simply look at the maximum and second maximum (non-
overlapping) 8-hour values at a site for the most recent 2 years of data.
These values may be readily found on an AIRS AMP45O, Quick Look”, printout.
Then we choose the highest of the second highs and use this as our design
value for that site. We then look at all design values within an area and the
highest of these serves as the design value for the area. Note that, for each
site, individual years of CO data are considered separately to determine the
second maximum for each year - CO data are not combined from different years.
It is probably worth commenting on this. The CO NAAQS requires that not more
than one 8-hour average per year can exceed 9 ppm (greater than or. equal to
9.5 ppm to adjust for rounding). We evaluate attainment over a 2-year period.
If an area has a design value greater than 9 ppm, it means there was a
monitoring site where the second highest (non-overlapping) 8-hour average was
greater than 9 ppm in at least 1 year. Therefore, there were at least two
values above the standard during 1 year at that site and thus the standard was
not met.
Hypothetical Case (two CO sites in an area)
(8-Hour Averages)
MAX 2nd High
SITE 1 1987 14.6 8.9
1988 13.9 10.9
10.9 is the Design Value for
Site I
(8-Hour Averages)
MAX 2nd High
SITE 2 1987 12.2 11.1
1988 10.8 ‘10.4 -
11.1 is the Design Value for
Site 2
11.1 DOm would be the design value for the area.
Ozone
The form of the ozone NAAQS requires the use of a 3-year period to
determ ine the average number of exceedances per year. In its simplest form,
the ozone standard requires that the average number of exceedances over a 3-
year period cannot be greater than 1.0. An area with four exceedances during
a 3—year period, therefore, does not meet the ozone standard because four
exceedances in 3 years averages out to more than once per year. Now, if the
fourth highest value was equal to the level of the ozone standard, i.e. 0.12
ppm, then the area would have no more than three exceedances during the 3-year
period and the average number of exceedances per year would not be greater
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3
than one. This assumes no missing data and is how the fourth high value in 3-
years came to be used as the design value. Actually, an adjustment is
specified in the ozone NAAQS to account for missing data in determining the
expected exceedances for ozone. Because of considerations associated with
control strategy modeling, the following basic approach for ozone design
values has been in use since 1981. If there are 3 complete years of ozone
data, then the fourth highest daily maximum during the 3-year period is the
design value for that site. If only 2 complete years of data are available,
then the third highest is used and, if only one complete year is available,
then the second highest Is used. In this approach, a year of ozone data is
considered complete if valid daily maximums are available for at least 75
percent of the ozone season. Note that because of the form of the ozone
NAAQS, data are combined over multiple years but they are not combined from
different sites.
Hypothetical Case (two 03 sites in an area, each year at least 75%
complete) -
FOUR HIGHEST DAILY MAXIMUM VALUES
Max 2nd Hi 3rd Hi 4th Hi
SITE 1 1986 .127 .123 .122 .110
1987 .129 .124 .121 .116
1988 .142 .136 .134 ..115
The design value for Site 1 is 0.129 ppm, the fourth highest
daily maximum value during the three year period.
FOUR HIGHEST DAILY MAXIMUM VALUES
Max 2nd Hi 3rd Hi 4th Hi
SITE 2 1986 .110 .100 .095 .090
1987 .110 .100 .095 .090
1988 .180 .175 .160 .110
• The design value for Site 2 is 0.110, the fourth highest value
during the three year period.
0.129 earn would be the desiQn value for the area .
There are a few additional comments warranted on the ozone example.
First, note that data fro’ 2ach site was treated independently in computing
the design value for that ite. Assuming no missing data, the second site
would meet the ozone NAAQS but the area would not because the other site shows
‘that the NAAQS is not being met. Also, it should be noted that the high
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4
values for a year are considered even if the data for that year did not
satisfy the 75 percent data completeness criterion. For example, if a site
had 2 years of data that met the 75 percent data completeness requirement and
1 year that did not, then the third highest value during the 3-year period
would be the design value because there were only 2 complete years of data but
the data from all 3 years would be considered when determining the third
highest value. This ensures that valid high ozone measurements in a
particular year are not ignored simply because other data in that year were
missing. When computing data completeness, the number of valid days can be
increased to include days that may be assumed to be less than the standard
level as stated in the ozone NAAQS. Also, for new sites that have just come
on line, the 75 percent data completeness requirement for the start-up year
may be applied beginning with the first day of actual monitoring as long as
the data set is at least 75 percent complete for June through August..
A final practical complication that must be addressed in determining
ozone design values is the case where a site reports data but has no year that
meets the 75 percent data completeness requirement. Admittedly, this is an
unusual situation but, for the sake of completeness, it needs to be addressed.
At the same time, however, the reason for this consistent data completeness
problem should be examined because ozone monitoring data completeness is
typically greater than 90 percent. In general, if a site has no complete
years of data and fewer than 90 days of data during the 3-year period, the
design value will be determined on a case by case basis. In such cases, the
data base is so sparse that it would be extremely difficult to describe
general rules that would apply and a careful evaluation, would have to be made
to determine why this situation occurred and what is the most appropriate way
to use the data. For a site without a single complete year of data but at
least 90 days of data during the 3-year period, the following steps are
followed in determining the ozone design value:
I. Divide the number of valid daily maximums during the 3-year period
by the required number of monitoring days per year. As noted
earlier, the number of valid days can be increased by including the
number of days that may be assumed to be less than the standard
level as specified in the ozone NAAQS.
2. Add 1.0 to the above total and then use the integer portion of the
result as the rank of the design value.
These steps are not as complicated as they may initially appear. For
example, suppose a site with a required ozone monitoring season of 214 days
each year reports 0, 121, and 130 valid days of ozone data during the 3-year
period. Step I would give (0+121+130)/214=1.17. In Step 2, 1.0 is added to
this total giving 2.17. The integer portion of 2.17 is 2 and so the design
value is the second highest value during the three year period. Again, this
type of situation should not occur that often and the reasons for the data
completeness problems should be ‘identified.
When discussing data completeness for ozone, it is important to
recognize that monitoring sites are occasionally discontinued for valid
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5
practical reasons. In such cases, if data are available from another site
that is representative of the same situation, tt!en data from the discontinued
site may be superceded by data from the other site. The intent is to ensure
that a single year of data from a monitor that was discontinued 2 years ago,
does not dictate the design value if data are available from another, equally
representative, site. This is not intended to eliminate the missing data
penalty when a site is discontinued and there is no data available from a
similar monitor.
I have not discussed certain basic data handling conventions, such as
computing 8-hour CO averages with missing data, determining the non-
overlapping second maximum 8-hour average, or the definition of a valid daily
maximum 1-hour ozone daily maximum. All of these conventions have been in
place since the 1970’s and are routinely incorporated into AIRS outputs so I
have not bothered to discuss these points.
Addressees:
Director, Environmental Services Division, Regions 1-Vill, X
Director, Office of Policy and Management, Region IX
Director, Air Management Division, Region III
Director, Air and Waste Management Division, Region Ii
Director, Air, Pesticides and Toxics Management Division, Regions I and IV
Director, Air and Radiation Division, Region V
Director, Air, Pesticides and Toxics Division, Region VI
Director, Air and Toxics Division, Regions VII, VIII, IX, and X
cc: J. Calcagni (MD-15)
R. Campbell (MO-b)
1. Curran (MD-14)
D. DeVoe (ANR-443)
J. Farmer (MO-13)
T. Helms (MD-15)
W. Hunt (MD-14)
S. Meiburg (MD-li)
R. Ossias (LE-132A)
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C l ’
,1 :
g tOS?4?
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
— Office of Air Quality Planning and Standards
_____ Research Triangle Park. North Carolina 27711
‘V
NOV i4t990
MEMORANDUM
SUBJECT: Nonattainment Designations and Classifications
FROM: John S. Seitz, Director
Office of Air Quality Plan g and Standards (ND )
TO: See Attached List
The attached package deals with designations, classifications, and
boundaries, and has been developed with the intent of providing information
useful to you and the States for implementing requirements of the new Act.
feel these areas are of particular concern because they require immediate
attention and election of choices by the State Governors that must be
submitted to EPA within 120 days of enactment.
The package was assembled from the perspective of providing you, in as
concise but comprehensive a manner as possible at this time, all the
information available for assessment of air quality and boundary issues that
might be useful in helping States reach their own decisions on these matters.
Included are three basic sections for each NAAQS: (1) air quality tables
reflecting attainment/nonattainnent designations, classifications, and
boundaries--this is the key component of the package; (2) a discussion
describing the data and issues associated with-each pollutant; and (3) a
technical appendix that provides more detail on air quality data computations.
I suggest you share this information with the States as soon as possible for
use as a tool in implementing the designations and classifications
requirements of Title I. Items 1 and 3 were sent to you previously. When you
complete your review of this information, please contact us so we can reach
agreement on any appropriate changes to the air quality tables. Contact Barry
Gilbert (ITS 629-5238) on O /C0, Eric Ginsburg (FTS 629-0877) on SO,/Pb, Dave
Stonefield (FTS 629-5350) ot PM-1O, and Tom Curran (FTS 629-5467) oh the
- technical appendix to facilitate this process and to discuss any issues that
surface as you work through the designation process with the States.
I hope this material is helpful and meets your needs. We will be
following up this information with more comprehensive guidance in the near
future. Toward that end, AQMD will be setting up a conference call in the
next Z &seks with the Regions to review the designations and classifications
procedure.
Attadguelt
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2
Addressees: -
Air Management Division Director, Region III
Air and Waste Management Division Director, Region II
Air, Pesticides and Toxics Division Directors, Regions I, IV and VI
Air and Radiation Division Director, Region V
Air and Toxics Division Directors, Regions VII, VIII, IX and X
cc: State Air Programs Branch, Region I
Air Programs Branch, Regions II-IV, VI, VIII-X
Air and Radiation Branch, Region V
Air Branch, Region VII
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0 3 /CO/N0 2 NONA11AINMENT AREA DESIGNATIONS
Overv jew
The designation and classification requirements of the amendments are
summarized below for ozone (O ), carbon monoxide (CO), and nitrogen dioxide
(NO 9 ). The attainment/nonatt inment status for the 03. CO, and NO 2 NAAQS is
sho n in Attachment 1.
The-listing is based on the most recent, currently available air quality
data in the AIRS system, i.e., ‘1987-1989 data for O and 1988-1989 data for
CO. We believe these are the appropriate years to ise since 1989 is the last
complete year of quality assured data, and the legislative history indicates
that Congress intended the classifications to be based on 1987-1989 data. It
is EPA ’s intention to allow the use of all valid data for those years from
properly located monitors in developing nonattainment lists.
The new Clean Air Act (CM) requires two basic procedures for
designating, determining boundaries for, and classifying O and CO areas.
First, as of the date of enactment, current section 107 de ignations of
nonattainment for all O and CO areas are adopted by operation of law,
including existing boundaries and classifications of nonattainment on the
basis of 1987-89 data (1988-1989 for CO). The boundaries for Serious CO
rionattainment areas and 0 nonattainment areas classified as Serious, Severe,
or Extreme will be revise to include the entire metropolitan statistical
areas (NSA) or consolidated metropolitan statistical areas (CMSA). The EPA
will, upon satisfactory demonstration by a State that emissions from part(s)
of the NSA/CMSA do not contribute to the NAAQS violation, exclude that part(s)
from the nonattainment designation. States also have the opportunity, under
limited circumstances, to adjust the classification under the 5 percent rule.
Second, within 120 days of enactment, the Governor shall submit a list
of all areas, their designations, and their boundaries, in the State. Within
120 days, EPA shall promulgate this list, making appropriate revisions (after
notifying the State). This process nay result in the expansion of boundaries
for areas designated nonattainment by operation of law as of the date of
enactment. In addition, this process may result in the redesignation of areas
designated attainment or unclassifiable as of the date of enactment to
nonattainment based on current air quality. Areas newly designated to
nonattainment will then be classified, and any that are classified Serious or
higher are subject to the MSA/CMSA boundary consideration process.
Designations/Classifications/Boundaries at Date of Enactment
Any area currently designated nonattainment under section 107 at the
time of enactment of the CM Amendments of 1990 is designated, by operation of
law, as a nonattainment area at the date of enactment. These areas are
identified on the attached listing.
Each area desig ted nonattainment for 0. will be classified at the time
of the designation (daç of enactment), by operation of law, as Marginal,
Moderate Serious, Severe, or Extreme on the basis of 1987-89 data. Table I
lists tbe design values nd attainment dates for each category.
I
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TABLE I
OZONE CLASS I FICATIONS
Design Value*
Area Classifica
Standard
tion
Primary Standard
Attainment Date**
Marginal
0.121
up
to
0.138
3 years
after enactment
Moderate
0.138
up
to
0.160
6 years
after enactment
Serious
0.160
up
to
0.180
9 years
after enactment
Severe
0.180
up
to
0.190
15 years
after enactment
.
0.190
up
to
0.280
17 years
after enactment
Extreme
0.280
and
above
20 years
after enactment
The design value is measured in parts per million (ppm).
** The primary standard attainment date is measured from the date of the
enactment of the CM Amendments of 1990. AttaInment should be as expeditious as
practicable, but no later than the date listed.
In like manner, each area designated nonattainment for CO shall be classified
at the time of the designation (date of enactment), by operation of law, as either
Moderate or Serious. Table II lists the design values and attainment dates for each
category. -
Area Classification
Standard
TABLE II
CARBON MONOXIDE CLASSIFICATIONS
Design Value Primary Standard
Attainment Date*
Moderate
9.1 - 16.4 ppm
December
31,
1995
Serious
16.5
and above
December
31,
2000
Attainment should be as expeditious as practicable, but no later than the date
listed.
Boundaries
All areas designated nonattainment at the date of enactment take as their
boundaries their current boundaries.
2
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However, within 45 days of enactment, the boundaries for 0 and CO
nonattainmeñt areas located within MSA’s or CMSA’s that are clas if led as Serious,
Severe, or Extreme are automatically revised to be the entire MSA/CMSA unless the
Governor submits a letter by that time stating that the matter should be studied
further. If the Governor submits the letter, the State may then submit specific
alternative findings demonstrating that the appropriate area is smaller than the NSA
or CMSA. If EPA concurs in those findings within 14 months of classification, the
smaller area will become the boundary; otherwise, the NSA or CMSA will become the
boundary. The legislative history indicates that Congress presumed the boundaries
would be MSA/CMSA, and the test for the State to narrow the boundaries is to be a
difficult one to pass.
For Marginal and Moderate areas, States can consider such factors as
population, population density and growth patterns, coninuting patterns, coninercial
development, Industrial development, topographic and meteorological conditions, and
pollution or precursor transport in defining the boundaries. The default area for
boundaries for 03 and CO nonattainment areas should be the MSA/CIISA.
Classification Adiustments
The Amendments provide that the classification of 03 areas classified at the
date of enactment and all CO areas may be adjusted by the Administrator within 90
days to the next higher or lower category if the designvalue is within 5 percent of
the adjacent classification category. Adjustments of classifications for 01 areas
classified after the date of enactment may be made by the Administrator 90 days
after classification, as described below.
The Amendments grant EPA broad discretion in making or declining to make the
adjustment. The EPA intends to examine the individual circumstances supporting a
request to adjust the classification. Factors to be considered include the design
values of the neighboring areas, the number of exceedances in the area in 1987-1989
-(1988-1989 for CO), the design value and number of exceedances considering earlier
-years, and the area’s geographic proximity to and the prevailing meteorology between
other areas experiencing air quality violations to which the area under
consideration might be contributing.
State list/EPA Promulgation Process
The Act provides that within 120 days after enactment, each State must submit
a list of all 03 and CO areas within the State, designating each area, and
determining the boundary for each area. The EPA must promulgate this list within
120 days (approximately 8 months from enactment), although EPA is granted broad
authority to make revisions (after first notifying the State). If the Governor does
not submit a recomendation for an area, the Administrator shall promulgate the
designation that he deems appropriate.
Under this process, the designations of all areas designated nonattainment
under section 107 as of the date of enactment will simply be affirmed as
nonattainment--such designation may be revised to attainment only through a separate
process for redesignation (which requires a maintenance plan). Because the
designations are simply being affirmed, the Act does not authorize another
classification. Therefore, the classification that occurred for these areas as of
the date of enactment will remain. However, the boundaries of these areas may be
detennined during this process. As described above, for Marginal and Moderate
areas, States can consider such factors as population, population density and growth
3
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patterns, cpmmuting patterns, comercial development, industrial development,
topographic and meteorological conditions, and pollution or precursor transport in
defining the boundaries. The default area for boundaries for 03 and CO
nonattainment areas should be the MSA/CMSA.
Designation of areas designated attainment or unclassifiable as of the date of
enactment (because that was their pre-enactment designation) may be revised to
nonattainment based on recent air quality. Any such newly designated nonattainment
areas will be classified at the time of this designation. If the classification is
Marginal or Moderate, the boundaries will be determined through this process; if the
classification is Serious or higher, the boundaries will become the HSA/CMSA unless,
within 45 days of the classification, the Governor submits a letter indicating a
study. In this case, the boundaries will be determined within 8 months of the
classification. The classification will also give rise to an opportunity for a 5
percent adjustment- -the same as described above- -for 03 areas (but not CO areas
because their 5 percent adjustment applies only within 90 days of enactment).
Transitional Areas
Transitional areas are defined in the Amendments as areas designated
nonattainment under section 107 of the current CM before the date of enactment
which have not violated the primary NAAQS for 03 from January 1, 1987 to December
31, 1989. These areas are currently designated nonattainment but there is strong
evidence that they have actually attained the standard. New ozone-specific
requirements under the Amendments are suspended until December 31, 1991. By June
30, 1992, the Administrator will determine whether these areas attained the standard
by December 31, 1991. If EPA determines that an area has attained the standard, the
State is required to submit a maintenance plan within 12 months of the
determination. At such time as an area is judged not to have attained the standard,
but not later than June 30, 1992, the Administrator shall designate the area
nonattainment with an appropriate classification assigned.
Transitional areas are identif led with a footnote on the attached list.
Nitrogen Dioxide
For NO 9 , the current nonattainment area (Los Angeles) is designated
nonattainment at the date of enactment by operation of law. No other areas are
- currently identified as monitoring nonattainment for NO 2 .
PN-10 NONA1TAINMENT AREA DESIGNATIONS
Overview
Amendments to section 107 of the CM will, upon enactment, designate by
operation of law all areas of the country as either nonattainment or unclassifiable.
First, PM-b Group I areas, as defined in 52 FR 29383 (August 7, 1987), or
subsequent modifications to the boundaries issued before enactment, will become
nonattainment areas. Second, any Group II or III areas where violations of the PM-
10 NMQS were measured before January 1, 1989 will also become nonattainment areas.
Other Group II and III areas will be designated unclassifiable.
4
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PM-1O Designations Under the CM Amendments
The EPA has published a Federal Register notice (55 FR 45799, October 31,
1990) that makes technical corrections to the descriptions of the areas as published
in 1987 (52 FR 29383, August 7, 1987).* The corrections were intended to define
more clearly the boundaries of certain areas that will be designated nonattainment
by operation of law and were based on information the States have provided in the
PM-1O SIP development process. Note that these corrections also identified by
footnote those Group II areas with violations based on data through December 31,
1988.
A subsequent Federal Register notice will be published after enactment
formally announcing the Group II and Group Ill areas that were designated
nonattainment by operation of law because they-recorded violations of the NAAQS
before January 1, 1989. This notice will also reaffirm the. Group I areas as
nonattainment areas. The list of nonattainment areas designated by operation of law
identifies the initial nonattainment areas for PM-1O. Redesignations of other areas
to nonattainment shall follow the general criteria and procedures set forth in
section 107(d) of the CM as amended. Pursuant to these criteria, States will be
asked to redesignate to nonattainment any areas determined to be violating the PM-b
NAAQS based on data collected after December 31, 1988.
Boundaries
Boundaries for initial PM-1O nonattainment areas were based on procedures in
section 2.5 of the PM-b SIP Development Guideline and in section 6.3 of Procedures
for Estimating Probability of Nonattainment of a PM-b NMOS Using Total Suspended
Particulate or PM-1O Data , EPA-450/4-86-017, December 1986. Section 6.3 discusses
three approaches: (1) qualitatively determining the area of air quality represented
by the monitor(s) measuring violations, (2) evaluating the data from a network of
monitors and interpolating the P 1 1-10 concentrations between monitors measuring
violations and those not measuring violations, and (3) using dispersion modeling to
identify the area with violations. Using the above criteria, boundaries of future
nonattainment areas should be specified using clearly identifiable political or
physical boundaries. This could include city, county, or State boundaries or rivers
and mountain ranges. However, the boundaries should encompass the entire area to
which a control strategy is expected to apply. The default area for P11-10
designations are the county boundaries.
*Attachment 2 is a listing of PM-b areas excerpted from the technical corrections
Federal Register notice.
LEAD (Pb) NONATTAINMENT AREA DESIGNATIONS
Overview/Current Status
Under section 110 of the CM, States are required to meet the NAAQS and submit
a plan which provides for the implementation, maintenance, and enforcement of.this
standard. Lead is not, however, subject to requirements of section 107 of the
5
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current CM ‘which required States to designate areas with respect to attainment of
the NAAQS in existence as of enactment of the 1977 CM Amendments (August 7, 1977).
The CM Amendments contain provisions which would grant EPA authority to designate
areas with respect to attainment of the current Pb NAAQS. Where measured violations
exist, the EPA believes States should be required to submit such designations.
Pb Designations Under CM Amendments
After enactment, EPA must notify the Governor of each State of the
requirements to designate areas with respect to Pb. The Governors will be asked to
designate within 120 days of such notification by EPA, all areas listed as either
nonattainment or unclassifiable. Attachment 3 is a listing of 29 Pb smelters which
have been targeted as possibly violating the Pb NAAQS. Fourteen of the smelters are
located in 12 counties which have measured violations of the Pb NAAQS; these areas
should be designated nonattainment. Fifteen are in 12 counties for which
insufficient data are available and thus should be designated unclassifiable. The
EPA intends to incorporate this action on Pb into the overall designation schedule
which provides for promulgation within 120 days following submittal by the
Governors.
Boundaries -
Due to the similar nature of the pollutants, the approach for determining Pb
boundaries will be the same as for PM-b areas. These approaches are found in
section 2.5 of the PM-b SIP DeveloDment Guideline and in section 6.3 of the
document entitled Procedures for Estimating Probability of Nonattainment of a PM-10
NMOS Using Total Suspended Particulate or PM-iD Data . These approaches are: (1)
qualitatively determining the area of air quality represented by the monitor(s) -
measuring violations, (2) evaluating the data from a network of monitors and
interpolating the PM-1O concentrations between monitors measuring violations and
those not measuring violations, and (3) using dispersion modeling to identify the
area with violations. The default areas for Pb designations are the county
boundaries.
SO 2 NONA1TAINMENT AREA DESIGNATIONS
Overview -
Any area currently designated nonattainment under section 107 at the time of
enactment of the CM Amendments of 1990 is designated by operation of law as a
nonattainment area. Section 107(d) of the CM as amended by the 1990 Amendments
authorizes the Agency to notify the State that the designation of an area should be
revised. The legislation requires the Administrator to first notify the Governor of
a State that available information indicates the need to revise a designation. The
Governor is then given 120 days from such notification to submit any redesignations
and/or additional nonattainment areas. The EPA must then promulgate the
redesignation within 120 days after the Governor’s submittal.
6
-------
Q, Designations Under CAA Amendments
There are currently 50 S0 , nonattainment areas designated under section 107.
These designations are made pre ominantly by county, but some States have also
elected to designate areas by air quality control region, township, or other area
within the State. Based on the available data (1988-1989), the Office of Air
Quality Planning and Standards has identified 10 new areas which we expect will be
redesignated as nonattainment. Attachment 4 lists the existing nonattainment areas
and the areas for which information indicates the designation should be revised to
nonatta inment.
Boundaries
The SO 2 program wi )) rely on the current boundaries for existing nonattainment
areas. When States submit their requests to designate additional areas as
nonattainment, EPA will continue to consider other reasonable boundaries. The
default area for SO 2 designations is the county boundaries.
7
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/( t ‘..‘-
O Sr.,,
/ UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
; V Office of Air Quality Planning and Stanciards
_____ Research Triangle Park. North Carolina 2771 1 . H iQ CV
‘4
(0?
DEC 2 1990
MEMORANDUM
SUBJECT: Procedural Requirements for Sulfur Dioxide, Lead, and Particulate
/1 Matter Designations
FROM: John Calcagni, Director i /( j!3
/ Air Quality Management Division (MD-15)
TO: Director, Air Division
Regions I-X
On December 21, 1990, we sent you a draft letter (including a number of
attachments) to be provided to the governors in your Region and discussing in
some detail the implications of Title I of the Clean Air Act (Act) Amendments.
For example, the letter described area designations and classifications for
the various air pollutants as well as specific State planning and implementa-
tion obligations. That letter was provided in modular form so that it could
be tailored to each State’s particular circumstance. This letter is to inform
you about some important requirements that should be observed in carrying out
the sulfur dioxide (SO 2 ), lead (Pb), and particulate matter (PM-b)
redesignation processes described in that letter.
Specifically, you will be notifying your States that certain areas within
their jurisdiction should be redesignated to nonattainment for SO 2 and PM-10
pursuant to Section 107(d)(3), “Redesignations,” of the Act, and that certain
areas should now be designated to nonattainment for Pb pursuant to Section
107(d)(5), Designations for Lead.” These areas, identified in the
attachments to the model letter to the governors, were not designated
nonattainnent by operation of law at enactment. Rather, these are areas EPA
has identified as post-enactment candidates for nonattainment status. The EPA
intends to redesignate as such under the process described in the
aforementioned sections. By your “notification to the States, you will be
initiating that formal process. The Office of General Counsel has advised us
that there are four important requirements you must observe in notifying
States that certain areas are nonattainment candidates for SO 2 , Pb, or PM-1O.
These four requirements are as follows:
(1) The letter notifying the States must be sent from the Regional
Administrator. Section 107(d)(3)(A) states that where EPA believes
designations should be made or modified, the Administrator must initiate this
process. lilma i dmin istrator is expected to formally delegate this notification
authority to the Regional Administrators before the States are actually
notified. Thus, itt is important that the Regional Administrators, and not
other Regional off iicials, provide the States with this letter. Notificat ion
-------
2
for Pb is initiated under section 107(d)(5) by a similar process. The EPA
intends to carry out the Pb requirements on a schedule consistent with that
being pursued for SO 2 and PM-1O.
(2) The letter must be addressed to the governor. While a copy of the
letter may be provided to any other recipients, such as State Air Directors,
section 107(d)(3)(A) expressly provides that the ‘notification” must be issued
to the governor.
(3) Section 107(d)(3)(A) requires that the notification be “public.”
Accordingly, the text of the letter to the governor should include the
following statement: “EPA regards this letter as public notification within
the meaning of sections 107(d)(3)(A) and (a)(1)(A) of the Clean Air Act upon
its issuance to you. Accordingly, our Regional Office will make it available
for public inspection and copying.” In addition, at each Region’s discretion,
you may want to accompany issuance of the letter with a press release or some
other form of public communication. Note also that, within a reasonable time
after you send these letters to the governors, EPA Headquarters will publish a
Federal Register notice indicating that letters have been issued notifying
the appropriate governors that EPA has begun the process of redesignating
certain areas within their State to nonattainment for SO 2 , Pb, or PM-1O.
(4) Section 107(d)(3)(A) also mandates that you provide the basis for
the nonattainment redesignation in your notification to the governors. For
example, any pertinent monitoring data, modeling analysis, and other relevant
information should be cited and briefly described. Alternatively, if
desirable, this information could be referenced and provided as an attachment.
You should also note in the letter that a more detailed technical analysis is
available from the Regions. Therefore, you should ensure that you have the
relevant technical support documents in order.
Finally, I wish to reiterate the importance of coordinating the form and
substance of these letters with the Office of Air Quality Planning and
Standards prior to their release. Accordingly, I am requesting that copies of
these letters be provided to us at least 48 hours in advance of signature by
the Regional Administrator. As discussed in our recent conference call with
the Regional Air Branch Chiefs, we expect the letters to be signed during the
week of January 7, 1991.
If you have any questions about any of these requirements, please contact
Eric Ginsburg at FTS 629-0877 or Dave Stonefield at FTS 629-5350.
cc: Ron Campbell
Alan Eckert
Greg Foote
Lydia Wegman
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23 ‘91 12:32 FROM RTP- QMD )
g4
119
“, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
I Office of Au Quality Planning and Standards
______ Research Trangle Park. North Carolina 27711
‘ 4;
2 2J N 1991
M fORAND1JM
SUBJECT: Guidance on Dcsignations/Classifications for Ozone and
Carbon Monoxide
YROM: John S. Seitz 1 Director
Office of Air Quality P ing and Starlaards (MD—lu)
TO: Director, Air,. Pesticides and Toxics Management
Division, Regions I, IV, VI
Director, Air and Waste Management Division, Regioi II
Director, Air Management Division, Regions III, IX
Director, Air and Radiation Division, Region V
Director, Air --and Toxics Division, Region VII, Vilt, X
Over the last few ‘ieeks we have received many questions from
Regional Off ice staff oi the appropriate air quality data to be
used in the designationfolassification process and the 5 percent
adjustment to the classification of an area..
• • • . Attached is a poliy statement that should clarify the
• Agency’s position on both of these topics. If you have any
questions, please call Brock Nicholson at FTS 629—5517.
Attachment
cc: J. Calcagni
W. Laxton
G. T. Helms
-------
-. 23 ‘91 12:32 FROM RTP-AQMD F’RGE.003
GUIDANCE ON IIESIGNATIONS/CLASSIFICATIONS FOR
OZONE AND CARBON MONOXIDE
Qesianationa and. Air _ Ou lity Data
The 1987-89 ozone and 1988—89 Co data are the foundaticin of
the designation effort. Use of 1990 air quality data for
designations is only i .portant for newly-found nonattaininent.
areas. Existing desigrated nonattainment areas that were in
place under the old Act were reaffirmed as nonattainment by
operation of law on No einber 15, 1990. Thus, the issue of using
1990 data for designating existing areas is moot.
Subsequent years cf air quality data after 1989 may be the
basis for initi il desiçrnations of new nonattainment areas (those
not designated by oper€ttion of law). For such new areas that
have never been desigiutted nonattainment, if 1990 air qua]il:y
data show attainment, zind trends are supportive, then the area
need not be designated nonattainment.
Classifications
Again, the starting point for the initial classificatirn is
1987—1989 ozone and 19138—1989 CO air quality data. subsequ ?nt
years of air quality data after 1989 may be used as long as the
following factors full:, support a different classification:
——what do past ai: quality trends say? Do they show a
downward, stead:e, upward, or uncertain pattern?
—-Are growth proj’?ctions and emission trends supportive?
Are VMT and othar indicators increasing at higher. than
normal rates?
After all factors are reviewed, the principal test for down-
classing an area (basei on air quality data other than 1987-1989
for ozone and 1988—1989 for CO) must be: “can the area seeking a
down stdft reascnably be expected to attain within the time
provided and with t: e measures specified by the Act for the lower
classification?”
5 PercenAdjU eflt s
The Clean Air Act Amendments provide the Administrator with
the discretion to shut the classification of a nonattainmE:nt
-------
i 23 ‘91 12:33 FROM RTP- QMD PRGE.004
2
area that is within 5 percent of the next higher or lower
classification.
Similar to the initial classification’process, subseque.it
years of data after 1981) may be employed to corroborate the
validity of a classification adjustment, especially downward
shifts. However, later years of data should n t be the sole
foundation for classifthation shifts. Do rnward classificatin
shifts should consider all available data, as well as the fa:tors
discussed above.
In those ca;3es whe:?e initial classification is based on use
of 1990 air quality data and the classification is to a lower
category than deEmed b:f 1989 data, the Agency would not al1 w an
additional downward shirt due to the 5 percent provision so ]S to
lower the classificatio; by 2 categories.
Under no circumstaice could the use of 1990 air quality data
be permitted to redesigiate an area from nonattainment to
attainment. The area w uld have to meet all of the requirements
of section 107(d)(3) (iicluding a maintenance plan).
Data A ai1abilit
In order to use data after 1989 for the designation or
classification process, it must be quality assured and publicly
avaiThble in the AIRS s ’stem by February 13, 1991.
-------
• • •-• • i i
Part II:
•: ‘ __
•j.:.
Environmental
Protection Agency
Wednesday
November 6, 1991
4OCFRPart81 -•
Air Quality Designations and
Claselflcatlons Final Rule
-------
;50694- ‘ K Federal’ Eejlster/VoI: 50, No 21 / Wedne da 4o ieiñb r $, i9 17Rales .
• ENV1RONUENTALPROTECTION áthonmono,dde(CO). artIculate thee kterm1nations and4Iflct
AGENCY .. - . matter (PM), and lead nsUonal ambient-, Dew po’Ucy issues and must be rece1ve4
..•.. - .‘ Z • a I r qualitysandards (NAAQSJ.The• onorbeforeDecember0.l O9tSuch
:4O CER Part 81 • tables following this rulemaking set : comments sbonld besond ho to
forth, on a State-by-State, poflutant-by- : the attention oLAlr D,,& 1 ’ No. A-1042.
pollutant basis (as appropriate), the i . US. EPA jLE-131). 401 M SL SW.,
- PIN 206o-AC5O - . . attainment status of the above. .. Washington. DC 20460. Tbe docket is
- mentioned NAAQS as submitted by the:: located in Rio. M-1560. FÜIt Floer ,-
Designation of Areas for Air Quality . appropriate States, and approved or as .e Waterelde Mall, 401 M SL,SW.,
PI8flJIJfl P 1 1P0 5 . - designated and dassifled by the EPA. - ’-.. -.Wasblngton. DC. Materials rctev to--
mental Protectl . Designations and d sslflcatlons re 4sed this rulen nlthg may be Inspected at this
: Agena.u(EPA). . . Ua 5edtofteChnlCO?OcdonslOceU0ndUI4igthehouflfrm83oo.60 .
- -:. - . berepnbllshed. e.• ‘ Ioi2noonandfrom130pJn .to330. ‘ .
e.. - amcTIvI Da,9Th11 regulation will -.i pjn., Monday through Friday. except for:-
IUMMARY ThIs’rulemnidflg sets forth the become effective on January 0.1992 : .lega1hplidays. In addition, the public -.
attnM nt status, Including • - - - ooauev Written the sanie infonnatlon that IC .
designations ad classifications for -.- ru1 mi ’&lng must bell In the docket at the - - ; .
selected areas affected by the ozone, ‘ . addressing the pchn1cal con lóàtlons. - - : •
-... :
: ‘ -‘-‘ •Ge . •;. .
. & 59 e CNeI. Slale A PWu Biaid EPA RegionLiFiC. Federal
- Bo deig, Boe MA 023034511. (617)5654245. FTS 835.324&
&Bch Qial. A k Pru a. .. . Bianch. EPA R*n U. 26 Federal POw.
New York. NY 00276. (212)264-2517; FTS 2644517..
Nerds S di . Odel. Ak Pto ’s , Biald,. EPA Region I I, 641 Cheelmd Bialdeig.
P10sJe jNe . PA 19107. (215)597-0075. FT$ 597.0075.. ‘..
- Torn Hansen, AcGig Odd, Ak Pougrwn . Braido, EPA Region IV, 345 Co a4and ______
so, NE, A5si , GA 30365. (404)3474964 FTS 2574964..
Sisplen 04. Ro9IblaD. OSlO, POiIaSo’l Brnnd EPA Region V. 230
r $O SL,CNcago U. 60604. ( 3 2 ) 3534511; FTS 353.2211.
;Gwy OSlO. Ak Todse uial Red .buñ Bràd EPA Region V.230 South
Si ., Othaga 5.60604(312) 3534559 FTh 353.8555..
George sndd ,, CNsf. Ak Ed ,Iffid1d Branch. EPA Region V. 230 South
‘ 0e,,itorn Si., Cldcago 5.60604(312)353-2065. FTS 353.2065. - - -
Gerald FenIs. . Cidel, Ak l’ro asns Branch, EPA Region VI, 1445 Roes Ave.,
- OaSes, TX 75202.2735. (214) 655-7204; FTS 2557204.. ,. -
• Gale WIIgiII. CNUI. Ak Bisidi. Region VN, 726 h.amoti Av e . ,J(wie Oly, KS
• 66101.( 236 -702 5 .FTS27b .7 02 0 .. .
Daugies U. Rile. Old, Ak. Branch. EPA Rigion VII I. 1861 SI,
• Pious • 3.1.600, iver. 0000202.2405. (303) -t75O FIS 330.
avid ‘AIr Proga,. . Braidv, EPA Region CO, 78 ii...ei,.... . 61,
Sen CA 04105(415)744.1210; FTS 484.1210..
• George AbeI,-CNd,-Ak 8 P- ’n Biwd , EPA Region 5. 1200 Stab Ave.
“s . WA 96101, (206)553.4165. FTS 396.4165.. -
FOR RMThE HIFORMATOON CONTACT
OzOneICO luaueeo
• Barry Gilbert or Valerie Broadwell,
Ozoni/CO Programs Branch,
(919) 541-5238/3310 Fl ’S 629.5238/
3310. • -
Lead, SOs Issüam
[ 4eOsfr d,
SOs/Particulate Matter Programs
Branck,
(919)541-3277; PTS 629-3277.
Particulate Matter Iuueou
• Leroy Wallace,
$03/Particulate Matter Programs
Branch,
(919) 541-0905. Fl ’S 629-0906.
•F 1 natures
Mank Young.
— O_ Brunch,
1l9) S*1 .5543 Fl’S 629-5534.
Air Qeality Management Division
(? fD .1S , Office of Air Quality Planning
derds U.S Environmental
‘ •-: - -
Fkld, iaL Nth
- .. ;. ;- - • .-•
- ç.- - -- • . - . - - - -
lijiow!, . •_, ‘—-‘
k: ’- - -
Mussas, Loo s Ns U Oliduais , seal Te .
__ ___ - ...:
/ ..
At Oi1 5, CaUJ . 0 1w. N , - • - : -
- -
- ,. ‘ - . . --
Protection Agency, Research Tha 1e ‘ - - ilL Claselficatlons! other treatments
Park, NC 27711. - - : -. -- - (a) GeneraL -.
SUPoeIMENTARY uoaes*i’uosm .. - - - (b) Teem of date. - — -
TABLE OF CONTENTS -: (c) Other treatment . -
L Background - (2) SubmarginaL
A. Purpose. •: - -— - - (2) TransItional. - • - - *
- B. Preenactment status and Clean Air (3) o ns Incomplete data areas.
Act Amendments (CAAA) of 1990. • - (4) Ozone “not classified” areas. -
C CA A and SubsequentEPA (3) Rural port areas(ozone). ’
Actlon.s. - - - . • - • . — .: _e • a. -
D Chronol f EPA d State - . q. & ,i&a ,.uu fli W MU3 5
Actions. OStro . . .: .. : ; -: bc rosress,be-gene al .,
tCAAAof1996. - . - ilieinents. -
2.Chronologyofevents. --.: - - 4.Enaetment+9 odays:5pe r cent -. -
3. Presentation of fOdmICal -. classification adjustment. —
Information. - -.. - - a. GeneraL - - -
B.SummsirycfToday is A c t ion :- - bEPAc oiterla. -
A. Ozone/CO - -. c.EPA action.- - - - • --
1. Introduction. -. . . - . d. Reclassification. upward. - -
2. Enactment - . 5. Enactment +120 days: State -
• - a. Designatlons /boundarles/ -- - - submits list of all areas—generaL
classifications. - 8. Enactment + 180 days: EPA notifies
- L Designations. - - - - - . : States of Intent to modify suggested - -
ii. Boundaries. - ‘- - designations for certain areas.
-------
- ‘Federal ReglsterlVol 56,
No. 2l5fWodiieeday, Nàvember 6, 1991/Rule añd Regulations
56695
- -. P. Reactment + 200 day. States :
eepond to EPA’. proposed --
modifications. ‘ “ -••‘
• eEnutment+24Oday.. . :i-
• a. Ozone anc CO areas designated
nonattainment gt date of enactment—
dassified serious and higher. •.
b.,Ozone and CO areas designated
• nonat( ”unentat date of enactment—
ciaseC. marginal or moderate. —
• L Designations.
ILBoundarlee.
• ilL jflfiØ ‘J-
-c.ol treatment. -
- LAñasd anstadentfrely -
• attalninentlunclasslflable at enactment
but now subject to redesignatlon to
nonattalnmen t . ;. .
I Seilous and hlgher. : - -
• • I I. Marginal/moderate.,.
• I II. Other treatment -
9. Piocedural reqtdrements.’
• a. Designations and boundarfes.
I. Notice-and-comment rul. Wi.g
IL Judicial rev1ew.
• b aassj f l stioa . ”:
‘LNoUceandosnzment.’
IL Judicial review., .:,,. ,,
-ftlM-10, -
1. InitIal PM-jo designations. -
2. AddItional PM-b designations.
3. Total .àpended particulates (TSP).
• C. Sulfur Dioxide (SO 1 ).
t Initial SO 2 designations.
2. Additional SOa designations.
D.Lead • -
tBackgthuiut
2. Today s action.
3. AdditIonal actions.
• 4. Miscellaneous. - -
• liLTables- -
1V. Other Regulatory Requirements
A. Executive Order 12291.
B. Regulatory Flexibility Act
L B.thgroimd
itPWpcse
• The purpose of this document Isto -
announce and promulgate designations,
classifications, and boundaries for areas
of the country with respect to the
NAAQS for ozone, CO. particulate
matter with an aerodynamic diameter
less than or equal to a nominal 10
mlm’ometeye (PM—b), and lead In
accordance with the requirements of the
Clean Air Act (CAA).: -.
R P,eeanctinent Stab. ,, and Clean Air.
AcMmendments (CMA) of Ia.,
The nation’s first Federal efforts at -
cantnllkig air ‘lutlon began In 1983
with pmeair e CAA. Four
,wed In lge7, 197n. 77
I1I90. lii . - -‘i7 Amendmazts
- --— -4 the p : ”ioua Department of
Ifr.k* , Education and Welfare to
Identify regional areas with co”o air
masses thràghàut the nation (AIr ’
Quality Control Regions (AQCR’s)j. By
1970,57 AQCR’s were named. Later that
year, 34 addItional areas were -
announced. - -. -
The 1970 Amendments authorized the
Administrator of the newly created EPA
to Identify additional areas, but only at
the State.’ Initiative. As of January1972,
247 AQCR’. were listed. ‘
SectIonbO7(d)ofthelg77 -‘ /
Amendments gave the EPA th, authority
to designate areas nonatf Inin I t I .’...
without a State’s request. After EPA’.
Initial designation of areas as •
atta lnmpntjunclasslflable or-’
nonattahimPnt In 1071, however,’
subsequent designations could be made
only eta State’s request In that same
year, EPA published, for the first time, a
list of all section 107(d) nonattalnment
areaith40CFRpart81. - --
C CAAA and Subsequent EPA Actions
This section summarIzes the relevant
provisions of the CAAA as applicable to
ozone and CO areas. A discussion of the
provisions applicabl, to PM-b, SO,,
and lead areas is found In section. IL B.,
C., andD.of this documant. ’ -‘ — ‘... ,
The CAAA of 1990 authorIzed EPA to
designate areas nónaHalnment end tot-’
classify them according to degree of -
severity. Classification. In turn, triggers
a set of conbol requirements designed to
bring areas Into attainment by their
specified attainment dates. -
Under the CAAA of 1990, - -
preenactment ozone and CO
nonatf Inm .mt areas were classified on
the date of enactment according to the
severity of th’elr problem. States were
required, by 120 days after enactment, to
submit hit, designating eli areu of the
State as attainment, unclassifiable, or -
nonattainment for ozone and CO. The
EPA was required to pa ulgate these
lists by 240 days after enactment,
making revisions. Including boundary -
modifications, as appwprlats. Ozone or
CO areas classified serious or’ higher are
subject to a separate process for
determining boundaries which places a
strong presumption In favor of -
expanding boundaries to the -
Metropolitan Statistical Area (MM) (or
Consolidated Metropolitan Statistical
Area (C/MM) ). -
D. CA wnology of EPA and StataActiazzs
1. CAAA of 2 The CAAA of 1990
reaffhm the majorroleof the States In
developing and Implementing State
implementation plans (SIP’s) to attain
the NAAQS. On -.vember 15 . 1990, the
daytheCAAA’. signedintolaw,
EPA AdminI Willlam K. Reilly
sent a letter t . . ate Covernrrs alerting
them to the significance of the
fégwation and . mnimising the -,
Amendments. - ‘ - ‘ ‘- - - -
Onemonth later, William G.”- -
Ros uberg. AasIs’ nt MMbthtretor for
Air’ • Rediatlor
Nove. rr 15, 199u letler with e
letter State Cevernors This ter
notified Governors of those Initial Stale’
actions or submittals required of States,
particularly those actions needed within
everyshorttlmeperlod. “ - -•
In January1991. a third letter to States
went out from each Regional --
Administrator providing mci. detailed
Information on determining - -
designations, classifications. and -
boundarles notification of SIP -
deflclencles and information about
other early State action.. Attached to
the letterwasa list of current and’
planned guidance materials that would
be provided by EPA to support State
activities.’ ‘ ‘‘ ‘ - ‘
- . • •‘t_ -
2. Chronology of events. The first
official actions the States took came 45”
days after enactment of the CMA -
(December 30, 1990). Preenaclment -
ozone and/or CO nonattainment areas
classified under section 107(dJ(4XA)Uv)
as serious, severe, or extreme would
take as their nonsttalnmàt area - -
boundaries the boundary of their /
respective C/MM unless the State
notified the AsIn .In latrator, no later than
45 days after enactment, of Its Intent to
study the boundaries further (the 45-day
letter).’ - ‘ ‘ -
In addition, under sections 181(aJ(4)
and 188(a)(3), EPA was authorized to
reclassify an area upward or downward
(a “bump down”) If the design value of
an area placed It within 5 percent of the
next classification. The EPA requested
that States seeking a bump down make
the request withIn 45 days of enactment
(Section 181(bX3) provides that EPA
shall automatically grant the request of
any State to reclassify an ozone -
nonattainment area to a hIgb ’
classification.)
The next major event occurred 90
days after enactment, February 13,1991.
when the EPA responded to Stales’
bump down requests. -
On March15, 1991 (120 days after
enactment), State. were required to
submlttoEPAalistofa l lthe lrczone
and CO nonattainment areas, Including
boundary recommendations. States
were urged to submit at the same time
SO,, PM-to, end lead none italanrent
areas, lnclur .g bounA y - -
recommenditions. S • were - -
encouraged to provf this time th
ackiltional boundar idles a’
recammendatlons foc the wit
severe, and extreme ozone ar4 CO
areas covered by the 45-day letters. By
-------
- May14, 1991 (180 days after enacthient) 2. &iocfmanl—a. Desi.gnailons/
EPA Regional Administrators notified . .. boundarfea/ciossificotions—1.
States of any potential modifications to DesignaLian& As described In this ‘.
the States’ recqmmendations. States - section, at the date of enactment, all
were encouraged In the 180.day letter to - areas of the country were designated
respond to EPA’s proposal within 20 - with respect to ozone and CO by -• -.
days (by June 3. 1991. whIch Ia 200 days: operation of law in accordance with the
after enactment) for ozone and CO ..,. preenaciment designations. For areas
areas, and within 80 or 120 days,. . that were designated nonattalninent
depending on the type of modification,., before enactment, EPA Interprets the’. -
for lead. Many States did so.. .. - CAAA to maintain the preenactment
With respect to ozone and CO. designation for the area and to begin a:.
today’s action Is final e ccept for the process for determhiliig ihe boundaries
following counties for ozone: Orange for the area. -. •,
and Putnam (New York, New Jersey-... Section 107(d)(1)(C) provides that.,.
Long Island CMSA): Muskegon - . .. -. each ozone and CO area des gnated
(Muskegon, MI ) : Washington . “ ‘ nonattainment, atthinment, or .. -
• kersburg-Mazletta . OH) and Pasco., unclassifiable Immediately before the.
• (Tampa. FL): and the following counliea date of enactment of the CAAA ‘ Is
for C0. Hancock, Brooke,and Jefferson designated, by operation of law.” as a•-
(Stcubènvllle) aid Utah (Provo, UT). nonav”n”nt, attainment, or
With respect to lead, PM-b. and SOj, unclassifiable area, respectively. -
• refer to the appropriate section below. Section 107(d)(2)(A) requires EPA to -
foradescriptlopofthespeclflcactlon ‘ publishaFedsralReglsternotlcewlth
being taken. • ,.: - . respect to this designation, big does not
• •• -: specify a time for doing so. Accordingly,
information. Copies of all of al vI . this nd n . frfrtg serves the purpose of—
inentlâned conespondenceand other : f11 f 111T g this requirement to prom ulgate
cdrrespondence bet véen the stites, ’ the date-of-enactment desi natLons.
Interested parties, md EPA regarding -.
this process ore available for review In
the Air Dâclet No A-9042 maintained In
Rm.M-1500,4OIMSt.,SW.,. .•‘
Washington, DC 20460 (first floor of the ,
EPA Washington DC, Waterside Mall
Office). Identical Information Is alsó
available for review at the EPA Regional
Offices listed above in the addresses
section of this rulemnkmg package.
Detailed discussions concerning thi.
basis for EPA’s actions and decisions
are excluded from this rulemaking and
are Included in a Technical Support -
Document (TSD). TheTSD is also
available In the Air Docket and
fespective Regional Offices. Where -
appropriate in this rule, the reader is
directed to theTSD for additional
information. ‘ - - . -
ILSn .nm iyofTudarsA c
A. Oiona/CO - •
1. Introducilo, This section wffl
11k. IIA _ 1_ _____ . , —— —. I —
coupled with the requlrament discussed
below, to promulgate the classifications
and boundaries for these areas.
IL Boundorie& As noted above, -
section 107(d)(1)(C) requires that each
area designated preenactment of the.
CAAA be designated again, by-
operation of law, In the eame fashion.
Because the specific boundaries of the
areas are to be determined .r - -
subsequently, as described below, EPA
Interprets the section 1Q7(d)(1)(C)
requirement as generally specifying that
the appropriate areas be designated, but
-not necessarily as solidifying their pie-
enactment boundarIes. For example, as
of the date of enactment, the Tampa,
Florida, area became designated
nonattainment, but the specific
boundarie, of that area were to be
determined subsequently.
Nevertheless, for certain purposes,
each area designated by operation of
law under section 107(d)(1)(CJ retained
its preenactment boundaries at the date
of enactment For example, locations
within ametropolitan area that were
designated nonattainment at enactment
remnined subject to the nonattainment
new sowus review (NSR) requirements
of-the NSR programs EPA had
previously approved for the
nonattainment areas (under Part D of
Title lof the Clean AirAct prior to the
CAAA). The preenactinent boundaries
are identified In the version at 4OCFR
part 81, Subpart C-Section 107., . -
Attainment Statue Designations (part 81
tables), preceding the enactment of the.
CAAL -
56696 Federal Register/VoL 58, No,i215/Wednesday, Novembe?8 , 199*!RuleS and RegulaUons -
• --. . -:
(a) Cenerol -M daedInthI 1 ’ 4
sedtion ,allareasfrlthomtala
exceptions) designated n Ii.k_. 4 -
byoperaliondlawasofthedatc of - - -
enactment were dauifle4 so of the date
of enactment in w Ith aIr ’ - -
quality. - - .-. ::
Section laltaXi) inoshlee: -i . .:;
Each area designated nonsttslnmsnt for’.’,
ozone pursuant to section 1W(d) shell be
classified at the time of such deslgnatlour •- -
undertablel,byoperatiorroflaw,ast .
Mnal Area, a Moderate Alel. a Serjsus
Area. a Severe Area, or’ an Extreme Are$ ‘.
based 9 desipvalulfcr’theaiss. ! - --
Section 186(a)(1) Includes an iden lca1
provision for CO areas (except that Iie:.
classifications are limited to mbderqt -
or serious). - • ;
Based on these provisions, EPA hai,
taken the position that ‘-L ui1flriitlona
for areas designated nonattaInin nt
prior to enaclment:occuraed at the same
time that those areas were designated
by operation of law as nonatf lmrant,
under section b07(d)(1)(C)(l), which was
the date of enactment As discussed,
below, EPA has taken the position thit,
for metropolitan areas that Included at
least some locations desighated ‘.
nonattnIn iit at enactment, such
dassificatlon I. not delayed until the ’
time of the designations required lobe
promulgated 240 days after enactmânt
under section 107(d)(4)(A)(iI) . ;:
For ozone, daesiflcatfon Is to be
based on the following table of des
values (section 181(a)(1). labial):.
r!-.
MerØnl___
• -
5 .138sl s i 5 rat..
0160
5IeOs Ibm*n
j o1eo
015 0ib(br 5uat
kd4n O .1I0
II0i An
0260 - .
G O orid move -.
-
Seiba
.
Severs-IS - -
• -
Genr e -I? .
•
um s
- . ‘ o erwv U wierpreinuon. UL W5
designat lo i rs/classlflcauonslboundarie ,
requirements applicable to ozone/CO
.areas; and It will describe EPA’s actions
In promulgating or annoulcing thesi
decisions.
• This section is organized
thr c ll Eb reader is invited to
refer to the chronology of CAM. -
lequ. r m n endEPAlState
a4r.. isfraljveacUons described above.
The most Important submissions by the
Sates, an Lpre1imlnazy and final EPA
actions, are summarjrmtln tebles - -- - —
Inciudedaspaitofjhlsruio. ..., • - h
Seveie-15 and .17 areas (EPA’s -
nomenclature) face the same : . —
requirements but differ in their • - - -
attainment dates (15 years for severe45
17 years for severe.17 ) . Severe-Il
applieitoar eaaw lthadesignva lueof
.190 to .280 for ozone years 1986-1988.
For CO, classification is to be based
on the following table of design values
(section 186(e)(l). tableS): • , -
kesdu [
oat
01.12.? • - — -
124-104.. - •.
-------
Federal RegIster/Vol. 86, No. 215/Wednesday. November 6, 1991/Rules aiid Regulations 56697
Nes • - tA.. . OSIigII .is pi$
Siitam 113 md -
EPA Is distinguishing moderate-i from
moderate-2 (EPA’s nomenclature) -
because of the significant additional
regulatory requirements for those areas
with a design value above 12.7 ppm.
For both ozone and CO. the design
value Is to be calculated accordingLo
lb. Interpretation methodology Issued
by the Mmlnlstrator most recently -
before the date of the enactment” of the
• CAAA. This methodology Is contained
for the most part In a memorandum from
William Laxton, Director, Technical
Support Division, the Office of Air
Quality PIm nIng and Standards, dated
June13, 1990 (“Laxton Memorandum”).
• This memorandum Is contained In the
• TSD, item #1.. -
Section 181(a)(3) requires the
publicst lonlntheFederalReglsterof.
ozone classifications at the time of the
publication of the notice under section
1O7(d)(4) (concerning designations).
Section 180(a)(2) Includes a comparable
• requ1re rent for CO. This rulemnklng
• fulfills those requlrements.-’
- Alistingof the class lflcationsuthcy
stood at th, date of enactment can be
found lit the preCAAA 40 CFR part 81
tables mentioned prevlously.
(b) Years of data. The primary years.
•theEPAusedforpurposeeof-
- designations and classification.
pursuant to this notice were 1987-1989
:‘ (8-year er1od) for ozone nd 1988-1989
1 (2-year period) for CO. . - ‘
• In some cases, the EPA Used complete
L988.191!0 (ozone) or 1989-1990 (CO) data
If they were quality assured and
publicly available In the AIRS
(Acroni tr4c Information Retrleval
System (EPA ’. National Air Quality
Database)) by February 13,1991, and the
Staterequested the EPAto use It.
For areas designated attainment prior
to enactment, the EPA relied on 1990
data(Ifqua l ityassuredandlnA lRSby
February 13,1991) to continue an
attainment designation In cases where
an area violated the standard during the
• primary ozone or CO years, but then
• revealed attainment once again using
1990data. . • -
• There are several reasons why. the
EPA began with the data years 1W-
• 1889 for ozone and 1988-1989 for CO.
The CM required the Mmlnl.b ’ator to
make a determination for 5 percent
rta .ifk tj 0 i downshifts no later than
go dapafter nac1ment (February 13,
1991). No later than 180 days after
.“ tm ”,t ( P19,1991). the EPA was
requimc . Ionz. !yStatesof its Intent to
uL4 te areas. Although some areas
had 1990 data available as early as
February 13,1991 and EPA considered
It, most areas did not. Thus, In order to
meet the deadlines set forth In the Act
the EPA was compelled for timing
purposes to use 1987.1989 for ozone and
1988-1989 for CO as primary data years
I . determining designations and
cLLssiflcatlons pursuant to this notice.
(c) Other troolment. Some
nonatlaInin ut areas were not classified
In accordance with the classification
tables under section 181(a)(1) or
188(a)(1) because of specific statutory
provisions or because their air quality
valuesd ldnotaccordwjthth ,
classification tables. —
(1) Submarginal. The EPA has
determined to treat certain ozone
nonat’ 1 ’ ent areas as “submarginal.”
This category Includes areas that -
violated the ozone standard durIng 1987-
1989 and that had a design value during
the relevant period of less than .121
ppm. The submarginaL category can
occur when there Is nota complete set
of data so that the e pected exceedance
ratelshlgherthantheNAAQS. • . -
exceedance rate of 1.0 per year even
though the estimated design value Is less
than the level of the standard. More
discussion of EPA’s data requirements Is
contained In the 1’SD, hem *2.
The SIP submittal requiremenis of.
section 182 (concerning ozone) do not
apply to these areas. A detailed
discussion of these requirements will
appear In the Title I General Preamble
In a Federal Register scheduled for
January1992 publication. - -
(2) Transidonal. Section 185A
provides that an area designated
nonattainment by operation of law
under section 107(d)(1)(C)(iJ (by virtue of
Its designation as nonattainment prior to
enactment of the CAAA), which ‘has
not violated the (NAAQSJ” for ozone
during the 1987-1989 period is to be
treated as a transitional area. Section
185A further requires EPA to determine,
by June 30,1992, based on the
transitional area’s “design value as of
the attainment date” whether the area
attained the NAAQS by December 31, -
1991. • -•
- The EPA Interprets this provision to
require EPA to use Its standard methods
for determining attAlninAnt or-
nonattalnment to ascertain whether an
area isa transitional area and to -
determine whether the area attained the
NAAQS by December 31. 1991. There
must be sufficient cata (75 percent
completeness for each year to
• determine that the area has not violated
• the tit mdard. A brief discussion of these
proca.lures Is Included In the TSD, item
*2....
• (3) Ozone incomplete dote areas.
Certain ozone areas designated -
nonattainment prior to enactment do not
have s JficIent air quality nenlitozlirg
datr ‘ t etermbe wb.tbcr tl-’y wens
are not violating the NAAQS. Under
these circumstances, the EPA does nst
believe sufficient data (75 percent
completeness for each year) rdst to
warrant a classification for the area.
• The EPA terms these areas incomplete
Data Meas.” -
As a result, the SIP submittal
requirements of section 182 (concernIng
ozone) do not apply to these areas. A
detailed discussion of these
requirements will appear In the Title I
General P eambIe In a Federal Register
scheduled for January1992 publication.
(4) CO “not daulfied” areas. Certain
CO areas are designated adnattalument
byoperatlonof lawasofthedateof
enactment by vlrtië of theIr ‘ -
preenactment deilgzratloi of ‘
nonattainment. These areas did not -
experience a violation of the 1988-1989
NAAQS. Where there was Inadequate
monitoring or Inauffident data, EPA
looked at historical trends to determine
whether thi area would have violated
the NAAQS In 1988-1989. Vhóre EPA
concluded there would have bOn a
violation, the aree was classifled .
appropriately. Where EPA believed
there would not have been a violation,
the area was “not classified.”
Ala result, the SiPsubmittal
• requirements of sàtlon 18? (concernIng
CO)donotapplytàtheseareas.A
detaIled dlsàsston of these - -
requirements will appear hr the ml. I
General Preamble in a Federal Register
scheduled for January 1992 publIcation.
• (5) Rural téonspoztareosfozone t
Section 182(h) sets out general criteria
for deter nInIng whether an area
qualifies as a rural transport area. The
statute defines Its. an area which Is
designated nonattalnment and neither
Includes nor Is adjacent to any part of a
C/MSA. In such cases, the
Ailmbthtrator In his discretion may
treat the area as a rural transport area
based on a finding that the emissIons
within the area do not make a
significant contribution to the ozone
concentrations measured In the area o
In other areas.
For specific criteria in determmin
• when anarea isa rural transport ai a, .
refer to the procedures contained In
technical document * EPA 45014-91-OIL
“Criteria for AssessIng the Role of
Transported Ozone/Precursors In Ozone -
Nonattainment Areas.”
This section also provides that .. rural
transport area, regardless of Its
claisificatlon, Is treated as meetlpg the
-------
- sppllcable requir en1z dse oe 1
(generallyielatbg to sthmlaslora . ‘ . -‘ -
required for enoae areas dussifred from
marginal to ex1reme if the area meets’
the siabmimion requirements of a
marginal are& -
The tlmist of this pruvzaion Is toallow
a rural transport area, the design value
of which would otherwise indicate a
classification for the area dmoderate or
btgber. to be treated as is ii I area.
3. Enoctment +45 doyer C/MSA
boundoiypro.xas&qàw—ge veruJ
ieqakemenS. Sec oa 107 d)(4)(AJ(lu .
provides that areas designated
nonattainmental the dale .1 enactment.
• and d.uthed as sedans or higher.
- would. by . er.tIoncf Jaw d5dayaafter -
th iflc doa, takeas their
he ” ’4es the MM or CfMSA. unless
he Slate , nhfil&ffDd a latter before that
dale bi .ling tha I 11 wIshed to study’
thq boundary question further.. Because
• areas desirAt d aonaUaIrn nI by.
operatloeoflawat
. nAct %I werefllso daulfied at that -
time, esdesoribed above, this 45 .day
- period began koin the date of enactment
and áded.on December30. 1590..
• Areas ior which no 45-day letter was
submitted loch as their boundary the
larger of their preenactment boundaries
or the CIMSA.Thése areas are -
ilpvttffied In section aa(1) of This
•doc i m ent .
Areas for whlthn IS-day letter wis,
• submitted are Identified In the7SD, ftem
#4 andcop4e.oftheleUersaru1n
Doshet A-9042. For These areas, The
State was given the eppoutunfly to
submit to EPA * study describing why
parts of the C/MSA should not be
• Induded l the nonattalirment area. In
lettese from E PA to the relevant State air
agency director., EPA urged that ‘the
Ststo iubndt their analyses by March
15,1991, end seqoested that the stpdy be
epleledby,aithe latest 4 Auguail5,
1991. EEPA concurs hr the finding.
based en the Stale study, by 14 months
alter daulflcatlon (Jarrearyls, 1992),
the boundaries will be reduced -
accordingly. If EPA doe, not concur by
that date, the boundaries will become
the CIMSA by operation .1 law.
4. Enactment + aa tkyw Speivent
dazsificotimr oirnaatwenl—.. GenesvL
UndrIi5i(a [ 4J and 186(43)-
an ozone or CO nonattalnarent area may
here ase lfled tothenezt l tigheror
lower daulflcatlrm If Ms d eIge value
places twithinS therrext
d calian For
1S1(aX4) provides thai such
ethasaiflcetjon must oc w no later (ban
4) days after the Initial classification.
wbith ls(llWdaysafterthedathof
V 1991J foe.
aasgn&lfrdaonatialnment by
lo7(dj(l)(q (try of
designation us nonattainmeot-
pmenscbneut) or (2)90 days after the
effective date of this rule for areas -
designated nonettaizmtent for ozone for
the first time pursuant to this rule (by
virtue oltheirdesignation as attalmnen’t
preenactinent). For CO section 186(e)(3)
provide, that such reclassIfication aunt
cceriro laterthan90 days after -
enac nL The provisions grant the
Adrninlstretor broad disuetion is
mnldn&ordetenatdng trot to make. the
b. EPA cutede. Section 181(44)
provides general guidelines In -
determkthg whether an area qualifies
for a d ..’ficationadjastment
In .k ln g each sdJw” .mI the
Admmnlatretor onyomsider the n.arbes of
oxceedances .1 the maMn ai praryarablent
a, . .I1fz .i l ,d for mane laths area. the
level alpoflulicur tv pr. tbetwesn the area
and other alfected areas, Incladlug both-
lntr ..nd1 .a at.ir.esnsport and the
mlxofs.. .u end *LIw in the area.
The EPAhas developed more specific
criteria (discussed below) to evaluate
whetherit Is appropriate to reclassify a
- parmudar area. These criteria are - -
• prIma I, applicable to downsblfts. ’The
EPA &p uuvud downablfti when the
area met the first requirement Ia request
by theState toEPA) and at least some
of the other àlteula (emission,, -
reductions, tr ds , etn. ) and did not
violateeny of the criteria. -
- fteqi restbyS(atr. EPAd id not
exeruise Ito authority to dowudass (or
updau) areas on EPA’ own Initiative.
Rathez EPA requelted that the State
submit a request for a downshift. - -
Discon&inuky A 5-pereentdownsblft
. em.ti rotaafllog lca lor - -
excessive dieconthrulty relative to
surrounding areas. lnpailictder. is light
of the area-wide nature olozone
formation, a downshift should not create
a “donut bole” where en area of one
dassificatlon Is sarrounded by areas of
higher Claslif icatiorL -.
Retaiianeni EvIdence should be
aVailable that the proposed area would
be ebleto attain by the earlier date
specified by the lower classIfication.
f m.&fon, reduct,orn Evidence should
be available that the area would be vary
likely to achieve the appropriate total
emission redaCtion neCesUTy In
order to attain In the shorter time
Thesafr Near- and long-term trends in
emissions end air quality should support
a downshift. Historical air quality data
should Indicate substantial air quality
Impro ’e t.-Crowth proiectiqas and
emission trends should support a
downshift. VehIcle miles traveled (VMT)
and othei lndk*tórs of einlsslonishould
not be Increasing at higher than normal
rates. • - •
Tears of doUr. For o,one the tSW.
1989 period Is tral Wdr.tenrrinh g
classification. Years of data aiim 1999
may be employed to . ou . .ob . .le the
validity of. downa3riMlawev later
yearuofdattshovldnotbetheaele
foundation for downshlfts. ... .- -•
Only one downshift Is allowed,
meaning, If downclas.ed, en area c ot
present data from other years as -
ustlficat1on fore semmd dowadass.
Under no clrenmstanc om the nee
ofta9Oalrqualitydatabensedto ,_.
redesignate an area from mfllatllIInment
to attainment For redesignatien br
attainment, the area mast meet aflvf ’a
requ lreinent seise c tlonw(d)(3 ) • -
(Induding a nralrrtenanceplsn). ‘:
- c. EPA action. Areas requesting a ”.
downshift per section 181(a)(4) and .
EPA’s response to Those requests are.:
contained In the YSDI Item *S,;::
- . d. fl dassWcatirnszipwwrL 5e 4ih1. .
181(b3 (33 provides that EPAd raU
automatically grant the raqueit oiar*y.
Statelo reclauI!yan iv’rnA j s t-
nonat . t ” '”t atea là alilgirer ‘..
daselflcatlozr . Thi requmaaLá’p kes
EPA to “publish a notice In the Fedmal;
Register of any such request and darq
action by the Administrator In granting
such request.” . . . . . -
On December V, 1990, EPA .ecelved a
request from the State of Maine to
‘ e’ 4 a ”Jfy UnOO nI nmrty upward from
marginal to moderate. By this entice,:
EPAIsgrangtlmtieqiesL -’ , . -q ’
On Decesaber . 1990. EPA ieLJ ,sd a
request from the State of Cohfmnla to
reclasalfy Ventura Coenty fawn salons
to severe. Ventura County Itpart of lbs
Los Angeles CIMSA. which I. classified
as extreme, and e4ihcla has
requested (pursuant to the 45 .d.yf 14-
month p w ss described above) that
Veidara County be treated as a separate
nos.ifalnmøntazes. Califotetab request
to reclassify Ventura County to severe là
based on en assumption that V...L..a .
County would be treated as a separate’
nonailnimxent area. As dis”oed
6898. Federal 1egister/VoL. -58.-No 2t5fWednesday TNor rnber e.l99lJRuIéi andReEulaii’ñrs .
below, EPA I., by this notion, aprwwlud
California’s request to treat Ventura -, -
County asa a rath area classified as
severe. - - - .:
- Section 1$Z(b )(3) doee not by Its terms
place time limIts on the opportunity of a
Statetorequecta voluntary - -
reclassification upward. Accordingly, -
States may continue to submit such
requests. H er. ouch rectasslflcathm
will not delay the SiPfsubznittal dates’S
otherwise applicable under subpart 2
TiiIefo(thCAAA. :- ‘ ‘ r ’
-------
L Enactment + Wdays State., . By letter, daTed on or about May14.
submits list of all oxeos—general. . 1991 (at least 60 days before the -
$ecJoz 107(dJ(4)(A)(I) requires States to promulgations and announcements set
wbmit a t designating. redesignating, forth In this document). EPA proposed
or afffrn . . he desi r.ation of all areas modifications to various State; -
of the Stj Lu as nonattainnient, submlsiiona. These modifications are
attainment, or unclassifiable for ozone summarized later In this document and!
and CO by 120 days after enactment. or In more detail In the TSD.
Virtually all the States met this - - 7. Enactment + 21)IaysStotes
requirement on a timely basis. Copies of respond to EPA proosd. . -.
the States’ 120.day letters are included- modifithilons. Conslstentwlih sectlon
In Air Docket A.90.42. -. . 107(d)(4)(A)(ll) and (1)(B](l1), EPA
For arias designated nonatt.lnment provded the ffected States with an,
at the date of en4ctment of the . opportunlty(o demonstrate vhy any of
and classified as marginal or moderate,. EPA’i p opo$ed modifications wEre
.thls list must Include the b undaries of flaPPrOPriat . The EP requested that
• I the areas. - I - . the affected States sul mlt such
. For areas deslnAted nohattainment - . demonstrailons by Jui e 3.1991,10 that
at the date of enactment o the c AA,. .EPA could n pet the st tutory deadline..
and classified serlousor above, and for promulgatloh of final designitlone,
which the Covemor submitted a 45-day e ,i tbons, and boundaries. The
letter EPA encouraged the States to States’ reeponseeare Included In Afr -.
submit their supporting analyses as Docke A-9O42. -
as possible, and EPA stated that If & Enactment + 240 doi’& Th1s section
possible, EPA would make a , describes the actions EPA Is t king with
determination by thlsnotice Instead of . thls notlce. - • - .
byJanuasy 15.1992 (the statutorily -linda sétlon ’107(dX4)(Bi(i l) ,!PA is
rerjifred to promulgate the new,-
pr scribtd deadline). Sevçral Stetes did .a rined, and reaffirmed dndignatlons,
:sub 5ilt helr boundary.analyses, : - -
Mdentlyearly’to allow EPA to take - lñdudlngboWtdarleijorarea(
designated nbnattaInn ent. ittainment,
action In this document. The actions - ofundassiflable with respect to z ne
EPA Is tAfring on the boundaries for.-.• ad . ThQEPA iátidn -
• theseStates are dlscussed:later In thIs.
..documeñt and tnuiore detail lithe ThD thoae actlon4 thie ,er l sOparitO tarts:’
.. For ireas deslénated at Inmént or 1 11)Areas 4eslgnate4 nônittalnment at
àclasslflable at the date of enactment, date ofeniltment—.classlfled serlóus
States were required to redesignate -. and h1gher ’ ’
these areas to nqnat*elnm itt If thetr; : • - (2)
-.anren* air quallçy reyealed -: date of enactment—o oñë ateai -
nonatthlnm.lIt These areas classified marginal ofnioderEte and CO
Identified In Part ilL The applicability to areas classified moderate, “S -,
these areas of the opportunity fortheS - ( )Otherareasdeslgnated
!)ercent teclaulflcatlon and, In the case nâblftalnment at the date of- - —
areas classified serious or higher, the enactment—treated separately from the
C!MSA boundaries procedure, 15 . classified areas. • .. -
described below. Although for these (4) Areas designated entirely
ureas this procedure for reclassification attalnmentFunclas.lflable at enactment,
and boundary determinations may take • but now redesignated to nonattainment.
place after,tj ie cl sslficatlón, which Is . (5) Areas designated attainment!
uccurring by thls’notlce, E4)A requested unclassifiable at enactment and that
In letters sent to the States in January - now retain that desIgi atlon.
that any affected States submit wtth . a. Ozone and CO areas designated -
.Ihelr 120.day (March15) s ibmittals any nonattainment at dat, of enactment-
analyses supporting a reclassification or -classified serious oxid higher. With -
- boundary revision, and EPA would - respect to areas designated
co sIder taicing final action on these nonattalnment for ozone or CO at
issues with today’s nqtlce. - . enactment and classified serious or
a. Enactment + i&3 days’ ER ,, - -hIgher and for which the Governor did
nofifies Etates of intent to modifr not submit a 45-day letter, the area took
sr esLed designations for certain as Its boundarIes, 45 days after
areas. Section 107(d)(4)(A)(li) and enactment, the larger of their
1](llKii) provides that EPA may modify preenactment boundaries or the C/MSA
e desirnations, classifications, and boundary. Today’s notice affirms those
s bmitted by the State at 120 boundarIes. Any areas not included In
days,bntthat-jf EPA Intends to do so, it the boundaries of these nonattainment
ma aa 4 the State of EPA’s proposed areas pre-enactment, but now Included
aiothfiraiioni at least 60 days prior to within the nonattainment boundaries by
EPApromu lgatlon, - virtue of the expansion of the
. 7 nJ RegIsisr/VoL.:5Ø Jo. .215/We nesday..Nqvethlier. 6, lS9ljRulés dRe flojç5 9: .. -
- nomattalnn)eit area *9 IncLude the Cl-.;
LISA axe g neally treated is bavlng ...
been esignited ma i IIed- the.
date • enactment. an desaibedt .
V. ‘.. respect toaians-designa -
nonet!ninmenl far c ane W - - -
enactment, classified . , g1uu . igher.
for which the Governor submIH a 45-
day letter (thereby b. ’- ’ ”g4ss ci. -
LISA boundary-determInatIon process) .
and hs submitted the relevant
boundary data, this notice promulgates
thesebounda e 4 , j.:
(1)EPAAø ’ew
-• FoUowlngaretheserlousandhlgber:..
classified areas fqr which the entire C/
LI Awas already designated at .. .
enactment by operation of la (because:
the preertactmepLboundaiies of die -.; . -
nonattalnznent area igcluded the Cl
MSA), or the remnip ’1g attalnment.
areas were add ed by the State. (S9e AIr
DocketNo.TA-90-42 oroTfld - -
designation correspondence betweEn —. -
the States and EPApn each area.) In - -
addition, for two areas, the Wash ngton,
DC, MSA and Philadelphia I&SA, -.
entire C/MSA Ii designate duo o? . :
absence of aytetteri on .the taj
reqqestlng nfdre,tI iet6 ov uatà ., .
___ bouztdarles (StáffoxdCo., VA , 6ecarne
part of the Washington, DC, :. , -
nonattalnment urea and Cedi CE Mb,-::-
• became part of the Pliilade phIa -: :. ;. ‘.
nonattainment ares). • .‘. - -. — . -
San DIego, CA- . - ; — ;- -
____ San .Joa4uln Valley,
Philadelphia, PA-NJ-MD-DR s-, - -
____ __ • .Waeblngton, DC-MD-VA. - - - . ;. -
Baton Rouge, LA. . —.- :;. .
Boston, MA . -. - ., : ... -
Greater-ConnectIcut (New London -
portIon) — —. . . . — —. - .- • -
• New York City (New Jersey portion)
Springfield, MA . • e -
- Beaumont,TX . , - .‘. -
ElPaso, Th . . - ..- . .; - —.
Houston ,TX .• - , — -
Milwaukee, ‘.ifl - • , -: - ‘
• Sheboygan.Wl - - .- . . . .
-The San Joaquin Valley, CA, area ...
Includes the MSA of Bakersfield, -
Fresno, VlsalIa-Tulare -Porterv llleo - -
Modesto, Merced and Stockton, and the
counties of Kings andMadera. -The
Greater Connecticut nonattalnment area
consists of the Hartford-New &Itabi-
Middletown CMSA, the Waterbury, CT,
MSAI the New London-Norwich, CF-RI, -
MSA. and the New Haven-MerI& . CT,
MSA, including some of -. previous
planning areas In the Sk e.
By this notice EPA Is promulgating the
boundar -• t’f the following seven areas
ac aUer an the C/MSA. For these
areas, the portions of the C!MSA not
Included In the nonattaI” t area
-------
56700 Federal RegIster/Vol. 56, No. 215/Wednesday, Noveniber 6 1991/Rules and. Regulations - - -
become eIther (1) separate
nonatlainmerd areas with a lower
dassificatlon. or 2) adjoined to another,
contiguoiis nonattainment area with the
same or lower dassification. ’The State.
and EPA me in agreement with respect
to these actions. Under section
1O7(d)(4)(Aj(v), EPA may promulgate
boundaries irnifler than the C1MSA 1111
concert wfth a State finding That sourcas
In the exeluded portion do not
contribute .1 Il1cant1y” to lb. violation
• of the NAAQS The provision Identifies
several factors that maybe considered.
In general, EPA supports ft. desision -
to w with the State’s finding with
respect to The ,. areas on the basis of a
facta.and .drEmmstances test that -
focused on wbethersorrce . In the area
at Issue contributed significantly to
NAAQS violations In the CJ.ISATh
EPA did uot4evelop brigId-ilne criteria,
but Instead, wnhied such factors as
the amount of iinte I a from within the
• areaat lssueand ltspercefltage
• conlrthetlontotheVJMSAtor ..
surrogates Ln emisalpus dais, such as
• population) and Ifavaflable, Th. result. -
ofmode1lngstudlee. •.
Baltimore, MD.-lCent and Qaeea
• Annes Counties.become a separate
- Los Angeles, CA—VantussCcon1
ben.mes a Sep . ste aevare-25area . ...
Southea.* aert niIifi,,iI LAQMAJL
becomes a separate u 5re47.area.
,• Portemouth,.NH -ME-glssMaIne .-
p.rtIon .f thbsoamepartof -
• m e o nfMbim.nt
• area — ’ —. - . —. , —•• ‘ —. — -
Chicago, U —lCenosha 1 t 7
becomes part of the MUwaelme athre
___ - -.
New London-Norwich MSA (Rhode.’
-Ismund poitlcn)—We.teity and
Hopldngton become part of the
Providence nonaftalnmenlarea.
• New York Cit 7 (Counecticat
portlon)—Ansonla City, Beacon Palis
Town, Derby City. Milford Qty Oxford
Town, Seymour Town and Shelton City.
become part at lb. Greater CwmecL at
nona -ard a. -
Boston, W .- fl ).&umathusetfs
towns whidi were previously part of The
• Providernee D A become part of th
Bo 1oe nonatWameat area.
In addition. EPA believes that It may
S psition a!
Ib. C1I MD another nunatlalumeni
results In
‘lie The same, -
dassthcatiea—runjerThs damhffmis
•dyatAfl IJw r Coy:
m R 3908 )I S fDC,
• Cir. 1980).Thsca,elield that EPA may
lecenapt tie mlnlmls situations bern a.
statutory requirement when the burden
of regulation would yield little or no
value. In these cases, EPA believes that
applying the contrlbutes significantly”.
test to these areas would yield no gain
In air quality since control requirements
remain the same despite the
reassignment and thus neither area’s
prospects for reaching attatnmpnt and
maintenance Is jeopardized. Applying de
minimis authority to these cases
remains r nnRWeui with the underlying
purpose of the nonattalument --
provisions, which Is to assure
attainment and maIatenarw , of the
NAAQ (See the 1SD. Item #% for -
technical documentation supportlng
these detmmtnAIInns ,) ,• -.. - -
In addition, by this imlice EPA Is,
promulgating the boundaries c i the -
following five areas as smaller than the.
C/MSA. For these areas, the removed
portions of the C, MSAs r m hed
*ffelnment (See the TSD, Item #7, for
tea4uilr*1 documentation supporting
these det rm1natlons.)Fo1low1rrg Is a
listing of the C/MSAs sod theconnH.
which remain aI Inm.nt The State.
and EPA are In egeement with respect
to these -: : ‘--‘
• ,_.-;.y,? .J_
• Atlanta, GA-&Us,Baorow, NewIon,
SpaulRTitg and Walton C’ ” ’ j nain
itt a1 ent - .
Los Angeles, CAllliaàu?11,A14
desert portion (eastern 3jj evnid Counts
and northern and eastern San - - - -. -
Bernardino 1 inIy ) of the I A QIS& -
remains f$ ln m,+ ‘• -
Sacrathento, CA—TheLako Tahoe Air’
• Basin portions of lDorad sndP1acer’
Counties remain 1t 1nin nh • -
Chicago, 11,-Portions 0 f y. ui.fl g
Cremy t nH. . 1f Iti f
Los Angeles, CA—All D I V.&IIm
County md the southeast desert - - -.
portions OIL S. Angeles, 1r raida , and
San Bernardino I nunfles
attainment - .• • •
Far the IoU.wb*g salons areas, States
requested Ins letter (45 day letter) more
time toev.iuaii thelrbc” '’iesper
section 1W(d)(41(AXIv),-The - - - - -.
-Mmfnlatrstor has not yet mode - : -
finding on these two ames, -
M egon.ML .
i ewYorlc QtflCnjeandPni u.n
Counties, NY). • : -
• InaMayl4.l2tiulettertotbeie-
Slates, EPA requested that all.
documentation pertaining to any:
proposed boundary lutrtgi’.be - -.
submitted as soon as possible, but no
IaterthanAzzgu s tizlo oL’ -
• New York State foflowdd witha letter
on 7mm. 4,1902, requetting more time to
evaluate the bf
Putnam Counties and lofonmiedEPA that
the appropriate u, 1 he’
submitted nolaterlimo
1991 deAItIInP . -
The State o! llc an-’-- --- Bo
Intent to continue ath yiegBeli whegie -
boundary Issue IuaJuan14,11 ,,
tOEPA. -‘ -
On January15, 1992,
boundaries will become the entire Cl
MSA for both the New York arid
Michigan areas discussed above unless
the Administrator bai conourred with 3 .
the Governors’ finding that a arnaller.
boundary Is more approprlate.The EPA.
Is awaiting the State’s studies. The final.
determinations will be promulgated In i -
separ”e Federal Register nolIce.. . . ,
Ofl S and CO areas_____
nonaftcinmeat at daze of enentmeni— 1 .:
cJasaiJedmar JnaIarmodervt.—L
Des ‘adoas. Par areas Aà.!gnaM I
nonattaInmeat!oroziraiorI Obj.. .
operation oflawundersection
1W d) [ 1J(C) at the dale p!.n 4n nt ,
EPA, with today’s action, reamrms thai. 1 .
designation. S oniwd) (4)fA) [ 1U ) , ,
preclude. redesignathig an area to
athrnmentun this ,;
IL Boundaries. Atainh huiim ,th. .
nonaHtIi , nl boundaries -
Include those sreasA . gnaitfed . ‘ :‘- ‘ - -
nonattalument prior to j wIininLFor
purposes oldalermlnlng sources aubjàd.
to new sourcs review, this prsal h I’ :
boundary ap Iaa.Wli re ltinaybj. i
approptiate.tn expand the ,,..:.-
nonattsin ’n nl houndarybeycuid
.id.tlng boundary. State. should that -
these additional areas as subJect todha:
appropriate other CAA requliwnants. —
Section 1O7(d)(4)(A)(jMUj utha 4n .
PA to p nmulga±a a d 4 ’ 1 1 ”n of
“nonat mmI.t ” for an area. Section- -
1O7(dX1XAJØJ ” a .t ,N
area as-. - ••. -
-
coultibats. to aml4en air quflty to a meiby.
area that does not mee ThelNAAQS). -
- Thu prevision base , lb. .
defm ht*Iln,i of whether snares Is
nonallslnni.ni on air quality . - - • -
slderatlons—If the air ‘1 ’tydan
area ,I i ia NAAQS, cr1fscr ‘
In that area contribute to NM -
violations In a namby area, il a area
must be dml,gnated nonaftainm L -
However, the provision doe. not by Its
terms eped t ”4” for d g the
extent to which sowno
m iwI te AAQignation as nona 1
Accordingly, the statute rants EPA -
discretion hi mahing ibis determination. -
Section 1O7 (d) 1) (Aj aid (BjftJ and iw
and 1w d (4ffAJ(Ljand4II)aqm±eI the ,-
State toñbmlta UsfcIaU areas4 tha’.
Staid, with Its deslgnatloirs.-d .•. ,-:
-------
Federal Register/VoL 56, No, 215/Wednesday . November 6, 1è91/Rulesa$! ..
• authorizes EPA to make “such -_
modifications as the Admlnktrator
deems necessary to the designations of
the areas (or portions thereof)
(including to the boundarif s of such
areas or portions thereof).”
These statutory provisions provide
guidance for t e determination of
whether an area Is to be designated
nonattainment. They do not, however
provide explicit crfterl a for determining
the specific boundaries of the
• .nonatfkln!n.nt area. They do not -
specifically address the Issue of whether
a geographic area designated
nonaftalament must be one -
aonatt Imvi.nt area, or whether the
State or EPA may divide that area Int o
two or more nonattainment areas.
• Accordingly, the statute grants EPA
dlsoretlon Is making this determination.
The EPA will grant a strong -
presumption In favor of the designations
and boundadas put forth by the States.
The EPAbe l levesthat this Is an
acceptable approach since by definition,
the nonattainment areas ekesified as.
marginal end moderate have less severe
ozone Ot CO problems and are likely to
reach attnhiivis’nr through Federal •
measures which generally apply
Independent of boundaries.
Accordingly, EPA baa determined In
most cases to accept the State-proffered
designations and boundaries. In general,
EPA I . not discussing In this document
or In the TSD, designations, boundaries,
and/or classifications Issues where EPA
Is In agreement with the State’s request
However, where EPA Is disagreeing
with a State’s proposed action, a
detailed discussion of the tune,
Inriuding EPA’. reasons, follow..
The EPA, In several Instances, Is still
studying whether to expand ozone
nonattainment areas within a C/MSA to
Include additional counties In that C,
MSA when those counties may be of
such great population or such a large
percentage of the C/MM’. population
that sources In those counties may be
contributing to the nonatthlnmnnt
problem In the C/MSA. These counties
arm Pasco County In the Tampa,
Florida, MSA Washington County In the
Parkersburg.Marletta, Ohio, MSA. Far
these areas, as noted In the
accompanying tables of this document,
the listed designation does not reflect
EPA action under section 107(d)(4)(A).
At the date of enactment of the CAAA,
these two counties wer designated
attainment, by operation of law, under
section 107(dXi)(C). The State and EPA
are ravIewiv whether to confirm or
reverse their present .IiIlgput lon under
the process set out under section
lwtdJ(4)(A) and will publish a separate
ioUc to that effect.
lnanumberoflnstancesoccurrlng
across the nation, counties that may
generally bn considered to be rural due
to relatlvel small populationa and a
relatively low degree of urbanization.
have contained a monitor that has
recorded a n ozone NAAQS violation, In
some of these In&nm , the States, In
the th-day submissions of the lists of,
areas, elected not to designate these -
areas as nona 1 m.1tL In these cases,
EPA Informed the State In EPA’. lao-.
dayletter thatsuch counties (or
subcountles) must be designated as
nonattainnient on the grounds that, -.
section 107(dXl)(A)(I) defines a
nonattainment area as, ain iug other.
Il hi g. “any area that does not meeL.
the LNAAQSI.’ t j
Some States did not wish to designate
the entire county. In these cases, EPA -
generally agree4 to ll *1gtiate only a
portion of the county nonatthInm L To
determine the bopndaries of these
nonattainment areas, or the extent to -
which neighboring non tf*Inm nt areas
shouldbeexpandedtolnciudeallor -.4
part of these c unUes, EPA has
detcemined to apply th. following
criteria.’ •:
Presumptively, the ncnats him nt
area should Include the entire county. If
the county does not adjoin any
nonattainment area, the presumption In
favor of an entire county 1. stronger. The
boundaries may be reduced to less than
anentirecountylf ltispo .sjble to
delineate the boundaries of the area -
Involving the NAAQS violation, and If It
can be shown that certain other areas
within the countylikely donot
contribute to the NAAQS violation.
In particular, If a county adjoins a
nonattainment area, the presumption In
favor of designating the entire county
nonattahiment may be rebutted, and
EPA will designate boundaries narrower
than the entire county, In anmrdance
with the following miterla.
The portion of Ike cu w1y designated
nonattainment must be contiguou. with
the adjoining nonatf Inm.nt area,
Include the area surrounding the
monitor, and Include .11 adJoining areas
with populations of sufficient density
such that these areas are likely to
contribute to the NAAQS violation. -
Further explanation of these criteria and
of their application to Individual cases Is
Included In the TSD. Item #8.
Based cn these critc- a, EPA Is today
romu1gat1ng the follow! g
nc ta1nment as
.M,,th Carolina “- -
On May 13, 1091. EPA Region IV
wrote to Governor Martin (180-day
i!tt TeVO °a”nd -
( .u. *ty(I .- . )atII
‘e è.teI” ’ !at
- iced enSvStI I4tOIInS
data. -
Based
data provide4 *IS9 JNoilh
Carolina, EPA bslW” eaiisions’
orginatinthS ’ and
1 j 1 ,*ouofeach
entire county 5$ z-
However, since ibes - -
monitored violatWM .ttbe tlMQSb at
least iportIot of lb. c tLmu5t be
designated EPA It’
therefore desigrisIM” °
the counties 1510 5151 t for Davis
and Granrifle he boundaries
chosen for etch .tth. 51 05 clude the
monitor and i n t s% l etudes the
poitLoI%$ ,fgti county-
that Is c attguSlt$* ’ thO St of the 1-
nonattalnmslt% in (lbS
High nt.Wt0 tSi UM
Davis Countyt ai d he
MM for GIIIIVUL’ CO’U I
rationale for hIS IStIOS 1 II this .ft-.
boundaryInut h 1
air quality Is flofl t In
which . cus likely % tbute to the
nonattaluntilti prOLII’ I tS tOGit -
outhCar1lM . - .
TheCosMM0h l - -
northwest corner Of C 110 County -
(non.MSA) msssurld V 10 11 1t10° 5 of the
NAAQS durini the I ,4009 period and
therefore mull be 0 IgnhItsd - •• -
nouattalnmoflt. -
rety s tthIsUme1sb0thed1 n -
of the source of be coiIiPt0 ’ causing
the violations inCIisrOk1 1C0tmiY and
EPA believes that UterI IPSO basis for
designating be U
less than a countY, the 1 nlIri county Is
being designated nun0tIR 11 hu1t - -
(Cherokee Couflh? II canhINUO’ ’ to the
Charlotte MBA (ha tttitlhP” t and the
GreenVffla.8Ps$ 1fluti MM -
southwest.) -
-------
• county Is designated nonattainment md
classified as a rural transport area. (See
the TSD, item #9, for documentation
• sUpporting a rural transport • -
• classification.) -
• Virg!nio. -
• Virginia proposed that Charles Clty.
Count j(Rlchmond MSA) and the Cily of
• Suffolk (Norfolk MSA) remain
attainment. 5 y today’s notice. EPA Is
designating both of these counties as
nonattalninent because qf monitored
violations within them. -.
CO . -. . -
:1-
— : . •‘ — -
. The State of New Jersey stated in a -
letter dated June 28, 1991, that, while it.
Is willing to accept EPA’s nonattalnment
boundaries forCO. It requests that these
- nonattsJninent areas be classified as
low moderate” (12.7 ppm and below).
TheEPA’believcsthatthe:
:.- nonáttaInh ,th t area Is comprised of the
‘contiguous]wlsdicllons of New York
Clty Nassau and Westchester Counties
In New York, and Bergen, Hudson, .
Essex aird Union Counties and the cities
of Passaic, Clifton and Paterson In New
Jersey. The highest CO concentrations
measured Within this area are In
• Manhattan, In the center of the
• metropolitin area. The measured
- : concentration places the area In the-
- high moderate” category. Since -
• : vehicles semmute throughout the entire
area and acertaln proportion have
Manhattan as their destination, these
vehicles have the potential to contribute
to the maximum measured levels.
-The-New Jersey counties In the area
rank among the State leaders In such
• categories as vehicle miles traveled and
population density per square mile.
These New Jersey counties are not
distinguishable fi-cin the New York
counties surrounding Manhattan.
Therefore, based on this rationale and
the measured concentrations In
Manhattan (13.5 ppm), the northern New
Jersey portion of the New York.New
Jersey-Long Island Q lSA
-nonattainment area retains the same
classification (high moderate) as the -
CMSA, which Includes northern New
Jersey.- - -
!enne s
• On March 12,1991, Governor
McWlinrter and Cgmmiicsioner Lana
si*mitted the n ”daflon that the
OtyofM ’ p 1 ’°beJ igratedas a
- moderate It ! t%Pnf ar for CO.
1 ci was designated-
nonatta lnmentforCOpriorto • -
- enactment of the CAAA. -
On May 13, 1991 In a letter to L -
Covernor McWherter, EPA
recommended that the CO . “ - -
nonattainment area be expanded from
the City of Memphis to all of Shelby
County. This designation Is based on
contribution to the mobile source CO -
emissions In the portion of Shelby - - .
County outside at the City of Memphis,
and on the practical problems of- -
attempting to administer a partial.- ,:.
county rather than countywide
automobile inspection and maintenance
The Xi óurceconfrlbüt1on froi
vehicles In the portion of Shelby County
outside of the City of Memphis Is 132
tons per day, or 26 percent of the total
CO emissions from mobile soürcès In
Shelby County. Currently, the I/M - -
program Is requiredonly for the Cityof
Memphis, Since automobile registration
I. dons on a countywide basis without
regard to whether or not the-vehide là - -
located Within the City of Memphls ,-lt Is
difficult if not impossible to Verify- - 1.-
whether the appropriate vehicles are -
actually subject to the I/M program The
expansion of the nonattainment area to
theentirecountywlllglvetheSlatea.
basis for expanding áoverage of the tIM
program. . ,- ‘ ‘- ‘: L.:.-
On May 31,1991, CommIssioner tuna
wrote a letter to EPA RegionaI -
Administrator Greer Tidwell disagreeing
with the Region’s proposed boundaries
for the ozone nonattainment areas In:
Tennessee. In that letter, there was no
comment on EPA’. proposal to expand
the Memphis CO nonattalninent area.•
Utah -•
The EPA Is still sti dying whether to
expand the Provo CO nonattnlnnwnt
area. As noted In the accompanying
tables of this document, the listed
designation does not reflect EPA action
under section 107(d)(4)(A). At the date
of enactment of the CAAA, that portion
of Utah County outhide the city limits of
Provo was designated attainment by
operation of law under section
107(d)(1)(CJ. The State of Utah and EPA
are reviewing whether to .. nflrmor.
reverse their present designation under
theprocess.etoutundersectlon. •., -
107(d)(4)(A) and will publish a separate
notice to that effect. • - • -•
- - I lL C/ass,ficationsAreas designated
nonattainment by operation of law at
the date of enactment were classified at
that time, and by today’s notice. EPA Is
announcing the classifications as
required under sections 107(d)(4)(A)(il).
107(d)(2), 1$1(a)(3), and 186(a)(2). Areas
designated nonattaInment at the date of
enactment are not being classified anew
by today’s notice: rather, that -
classIfication occurred at the date of -
- ,— --• ‘a_ li •t_ • %.
• enactment, and EPA Lodeylsnierely ..
• announcing and cèdlfylng in the CFR the
classifications that b!-;
areas at enacthient.— ’ _.‘ n ,...
The EPA bamo ibis . , 1 uwthi a - -
primarily on the piv iJ of
181(afll) and section 1I aX1), each at
which provides (in relevaid part ening
- Identical terms): “Each area
nonattainment ...pursuant to section -,
107(d) shall be classified at the time of
such designation.” Section - .-... : -r - -
107(d)(1)(C)Ø) provides that each ozone
and CO preenactment nonat* tnment
area Is “designated, by operatIo of law,
as a nonatthImn t area.” This ‘r’-
designation occurred at the date ot’
enactment—.-.a. -i --: v : -. •T t
The fact that.classlflcatlon octiurred at
the date of enactment means that the ’
dockbeganUckIngonthedateof -
enactment for certain events trlggered-,
by the classification, specifically, the
9O-dayopportunit or5percent :-i ri
reclassification, and the 45-day period
for States to submltrequeeta to study-’ .
:the boundaries of areas classified “ - 1 .r -
serIouiandhIgher.ForCO-r- :
nonattalnznent azeas section 188(43)-’
provides that the 5 percent v .
reclassification must occur 4 ’wlthln 90’
days after the date of the eäact inent, ’
thereby confirming that clauIflcafioi for
CO under section 186(a)(1) occurred, on
thedateofenactment.Becausethe
relevant provisions of sectIon 181(41) - -
for ozone are Identical to the .ecUon - -
186(a)(1) CO provisions, section
186(a)(3) Implies that classification for
ozone also occurred on the date of’ ‘
enactment, at least for areas containing
locations designated nonattalnnrent at:
enactment The House Commlttee -
Report confirms this view by tatlng that
the 5 percent reclassification adjustment
for ozone may occur “twlithln 90 days of
enactment” (HR. No. 101-490,101st
Cong., 2d Seas. 231-32(1990)].- - a -
Areasclass lfiedatthedateof-
enactment aie not reclassified again by -
virtue of the fact that today’. notice
reaffirms the designation of thoseareaa
and Includes certain nearby locatIons -‘
within the boundarie . of those areas.
The EPA takes the position that because
they are not again classified, they are -
not again given the opportunity to make
s5percent reclassification, or, lathe .
case of areas classified serious or - -
higher, to Initiate new efforts to adjust
the boundarIes to smaller than the C/ -
MSA. Interpreting the CAA to allow.
such opportunities would be - - -:
Inconsistent with congressional latent to
expedite the preliminary questions of
designations, classifications, and -:
boundaries In order to assure that the -:
heart of the program—the pollution -
- . . - ,. • ,,— •••.•_• - . •. , . .r — i- ’— -j.,,—-- • . - -.
!‘ 56702 - PéaeriI Register! Vol. 56: No
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Federal Register/VoL 56 No. 215/Wednesday. November.O .1991/Rules and Regulatloits
56703
controls themselves—are in place u
quickly as possible ieee H.R. No.101..
490,101st Cong., 2d Sees., 232(1900)
(stating that a period of only 90 days Is
provided for the 5 percent
reclassification ‘to assure that State and
EPA resources are devoted to efforts to
attain the standard, and not to rh ges
. the classification of azeas ’)J...- • . .
• Mthough in same cases the -.
boundaries for an area z ’nu ’lned
imdeteii th ed until today’s notice (I.e..
areas con’ ”I’ig at least some portion -
which was ettAlltmPnt at enactment), all
areas ultimately determined to be within
those boundaries and promulgated In
this document are considered to be part
of the nopaltelnmcnt area desIgnated . ,
‘end classified at the date o enactmenL.
Asareeult,wlthrespecttoauy
ueIghbor1n area that Is ultimately
Included In the nonattainment area, no
new classification has occurved,with ’
todajsnolica,andthereIano
opportunltyfora spercent,
re ’ 4 ”.IflcaUon or a 45-day.C/MSA.
process..- , . ,. ,• - .
• The fo1k ii1n.g are specific actions
EPA lstaldngw lthrespectto
the,WcaUonL’
• • — .. • — ‘ •‘ •. — •
- . .-
In a May15, 1991 letter, Govei ior . -
Symlngtonof the State of Arizona .
recommended an ozone classification of
• Irmzsltiodal for Maricopa County
• ( Phoenix area) pending verification of
• ozone data for calendar year 1990 and
additional studies to be conducted
durIng 1991 1. determIne the appropriate
de’fgn value. Additional quality-assured
monitoring data for 1990 from two
monitoring sites In Maricopa County-
(Papago Park and Vehicle ‘,lons
Lab) made available since receipt of the
Covenims original recommendation
Indicate that • classification of
moderate Is more ippropriate for the
Phoenix aria. used on this additional,
quality-assured data, EPA Is classifying
Phoenix as a moderate area for ozone.
Ohio-• -
On March 15, 1991, the State of Ohio
recommended that Mahoning and
Trumbull Counties be redesignated from
nonatteln ,n t to attainment The EPA
prevlousiy disapproved a redesignatlon
request for this area on July 10,1990 (see
55 FR 28199). hkhnnlng and Trumbull
Countie. will remain nonattainment
bom se .44i ,u 107(aX4)(AXII1) does
not permit iedc. guationa to attainni t
aapadalthi sganeralrev lewof
d ignaflam and dasslflcationt .-.
Mabmiñtg and Ttumbuli Countie. are
beI as a marginal ozone
nens .. .”tsree along with Mercer
uuuty Pennsylvania. There are two
ozone monitors located In this area. One
Is located in Youngstown (Mahonlng :
Count s Ohio). This monitor Is located In
the urban area of Youngstcwm and may
not represent the woret .cas ozone
concentration in the area. This is due to
the suppression of ozone formation by.
NOxinthe urban . rea. The monitor in--
Youngstown has not recorded a .’;.
violation of the ozone NAAQS based on
1987 through 989 monitoring data. The
second monitor Is located downwind in
Farrell, Pennsylvania (Mercer Cóunty,
Pennsylvania). This monitor has
recorded a violation of the cvm.-
NAAQS based on 1987 through 1989 alr
quality data (2.1 average expected • -
exceedancea per year). A violation of.-
the NAAQS occurs when the avarage
expectedexceedanâesperyear ls-
greater than to. The monitoring site In -.
Farrell, Pennsylvania, is approximately.
lto2mllestothieutofTrumbull ••
Count y ,OhIo.The l l pAhaedoterm lned.
that the monitoring site In Farrell,,.
Pennsylvania. may bav been adversely
Impacted by emissions from Mahoning.
and Thunbull Counties (see 55 FR 28195,
July10, 1990), ThIs I based on the.
prevailing warm weather (ozone
conductive) winds In the upper midwest
Since the winds typically blow from the
quadrant bounded by the directions -
south andweet, the Farrell .it . I i
expected to be downu 1nd on these daye.
Based on this Information Mahoning and
Trumbull Counties, Ohio, are being - -
classified. along with Mercer County, -
Pennsylvania, as a marginal ozone
nonattainment area with a design value
of. lS4ppm.: ‘: •‘
- -
In aMarchl, 1991 letter,
Pennsylvania proposed that Lawrence
County be designated “cannot be
classified or better than primary
standards” for ozone. To support Its
recommendation, the State pointid out
that ozone NAAQS attainment has been
monitored at a location In that county.-
Per section 1W(d)(IXC)(l), an area - -
designated nonattainment preenactmeut
of the CAAA of 1990 must be
nonattainment postenacterent. -
In the same letter, I’ nnayIvan1a - -
proposed that Allegheny County be
designated “cannot be classified or -
better than primary standards” for -
carbon monoxide. The State base. its
recomme”datlon on the fact that the
cour ’y Is monitoring attainment Again,
as Allegheny County wee designated
nonattainment prior to passage of the
CAAA. the area remains nonattalnment
by operation of law until a carbon
monoxide NAAQS maintenance plan is
developed and approved by EPA. In the
tables section of the 107 classificatIon!
designation notice EPA recognizes the.
fact that Allegheny County is not- - ‘ -
violating the NAAQS, Le., that It Is - -
monitoring attainment.
c. Other treatineaL With todays
notice. EPA Is alse romulgat1ng the
affirmed or reaffirri d designations (end
new, affirmed, or reJflrmed boundaries)
of nonattalninent areas to be treated as
transitional (ozone), submarginal -
(ozone), incomplete data (ozone), not
clauifled (00), and rural imnsport - -
areas (ozone); and codifying Its - - -
conclusion that those areas should be
accorded that treatment These areas
are llated ln theTSD, item #10. - - - -
d. Areas designated entirely’
auoinment/unc!assifiable at enactment
but nowsubject toredesfgnation to’ -.
nonanmezL&asandh lglier. -
OhioandWer1VLI iflia-!:..-Y. 4 ”
• Aa noted In the npeh 4ngiable,’
of this document, the listed designation
for the Steubenvilla, OH-WV - - - -
nonatf*Imnent area does not reflect EPA
action under section 107(d](4XA ) .At the
date of enactment of the CAAAthe --
three counties whl h makeup the
Steubenvilie MSA—Jefferson County, -
Ohloi Brooke County, West VIrgInIa -‘
and Hancock County, West Virginia—
weredesignetedatta lnmentby
operation of law, under section
107(d)(1J(C). The States and EPA are -
reviewing whether to confirm or reverse
this present designation under the ,
process set out under section • , - -
10Y(d)(4)(A)• The EPA will publish a -
separate notice to that effect.
IL Margind/modercl.. WIth today’s
notica, EPA Is promulgating the.
designations, classifications, and
boundaries for three areas, Smyth
County, VIrgInIa Essex County, New
Yar n and Jefferson County, New York.
These areas were designated entirely
atf lnment as of the date of enactment;
however, current air quality necessitates
- a designation of nonattalnment under -
section 107(d)(4)(A)(i)-(ii). For new
ozone nonattalnment areas, because
they are classified as of the effective
date of today’s notice, any
re 4 as.Iflcatlon based on the 5 percent
provision of section 181(a)(3) must occur
wIthin 90 days of that effective date. -
The criteria for mAW ?l g the 5 percent
reclassification will be the same as
discussed above. Smyth and Essex,
Counties are rural transport areas.
Th refore, a 5 percent dowiu .lft law
applicable to either area. -
On March 21. 1991. the Governor of
N ’v York requested a 5 perre l
d’ ushiftforJeffersonC ’ ’ ‘ stnce it S
det gn value of .243 ppm fe. withIn 5
percent of the marginal “-I”. 1øcalion.
-------
oday ’ . notIce approves thi, request-
and reclassifies Jefferson County as a
rqarginal nonattainmeni area per section
181( )(4).:. . :.. - -
Essex Cdwr Arew Yoi*
•. New York State requested in its -
March 21. 1991 letter that Essex County:
• (non-MM) be designated attainment.
The State based this request on the fact
that the monitoring station on which the
designation Is based Is part of an .. . -:
atmospheric research station on the top
of Whiteface Mountain, and on the.
belief that the measurements taken at.,
this station do not reflect general air :‘t
quality In the region. New York State.
furthet cninnimltqd In a June 4,1991
letter drat the exoe èdàces all occurred.
at night when the public could not be
exposed. New York noted that thitlme
of the exceedances Indicate that long-
- range transport of ozone Is the cause of
the violations.. :-. ...
His EPA’, position that the violations
of the ozone NUQS recorded on
•iIt f MountaIn are based ãñ valid
measurements and the State does not
dispute this. However, the fact that the:
ozone violatloirido not originate In . . -:
éxCounty l .notsufficientbasls for
signating the area attainment -
?urthermoie, the area where the
.rolatlon, ate observea I accessible to
the public. The.Wblteface Moántaln
area Ispart of the Lake Pladd ,
recreational area,Adlrondack Parka -
-year-round resort location. Since the -.
Stale’s June 4,1991 letter. addltloiial.
- exceedances of the ozone standard,
Including some day-time readings, have
been recorded at this location.
The EPA does agree that long range.
fransportappearstobeasubstantial
contributor to the NAAQS violations on
Whlteface Mountain. Given violations
have occurred only at a higher elevation
while attainment Is measured at the
base of Whiteface Mountain, EPA has
determined that a smaller boundary, as
defined by those areas on Whiteface
Mountain above an elevation of 4,599 : -
feet; Is more appropriate and a
classification of rural transport --
accurately characterizes Whiteface
Mountain (asproposed in on October 4.
1991 letter from New York8tate to EPA)..
The EPA accepts this boundary to
define the nonattalñment area on
Whiteface Mountain. allowing the rest
of Fa , County to rpm bi atI .m ent- :
The EPA believes this bàndary
‘eqontely the monitor, located
Ine2evatlcnof4 ,8 ’feetanda - .
maHo awroumlhrg area.
léct lug4 ,S OOketasthe -
boundary marking the nonattainment ,:
area. of.Whlteface Mountain. EPA elso
believes that the air quality in the.
Adirondack Park area, an area
frequented by the public, will benefit by
designating this por on of Essex County
as nonattainmez)t. - - . ---
The EPA also agrees with the State
that a rural transport status more
accurately reflects the ozone- ’ ” -.
nonattainpient problem In Essex County
at Whiteface Mountain. Doc imentation
supporting a classification of rural
transport Is contained In the ThD, Item t
# 1. • ••• —. . :.:,—
‘.-
SmythCouaty .Vkginia
lnaMaich15,1991l ttertoEP, j
Goverpor Wilder of the Cómmonwéalth
- of Virginia proposed that Smyth County
(non-MSA) remain attainment for ozone..
Oil May14. 1991, the EPA opp osed -
this request and notified the Governor of -
Virginia that, while acknowledging ‘
strong evhl.pi of.!on*-raizge ozone
fransport,atleastaportlonqfSmyth
County must be designated -
nonattainment. ,-.: - --‘ . ;: -
‘-In a June 3,1991 letter to EPA Region
ilL the State of Virginia racommsmded
• designating the area In Smyth County
above 4.500 feet as nonattainment and -
continued to request a classification of-
rural transport. , ‘ . ., - - •. :•...- -
The EPA recognizes the monitded’: -
violations by designating the area In -
Sinyth County above 4.500 feet elevation
as nonattalnment. as reoomm nded by
the State of Virginia In their June.5, 1991
letter to EPA. The EPA accepts this - ,
elevation u a boundarjp to define the.
nonattalnment area as EP believe. It
adequately Includes the monitor, located
at 5,520 feet, and a reasonable area
surrounding It.
SelectIng 4.500 feet as the boundary
marking the nonattainment area of - -
Sinyth County also ensures that the
Appalachian 1 all, an area frequented
bythepublic,isindudedinthe
nonattalnorent area. - - - - -
The EPA agrees with the State that a
rural transport status more aceurately
reflects the ozo . nonattainment
problem In Smyth County -. . - -
Documentation supporting Smyth
- Countyasarurultransportareals-
contained In the TSD. Item *12.
lit. Other b’eatmenL The City of -
Osbkosh, attainment for CO prior to
enactment, Is hereby designated -
unclassifiable for CO. (See the TSD,
Item *13, for documentation supporting
this designation.) . • -
9. Proceduzoirequiremenls.As
described above, today’s notice
promulgates designations. - - -
• classifications, and boundaries for -
ozone and CO areas. This section -.
describes the procedur frequlrementa:
concerning notice andcomment and ’, ’
-Judicial review applicable to the’ h’
actions.— -: --
a. Designations ád 2 .ies : I.
Noiice-and-conursera tsukmoIieg.
Today’s notice awrouuees and -.. -
promulgates the I -ti I - ‘“
occurred under section IWIdX1XC)
(designatiâns by operation oflaw at t
date of enactment of the CAAA) aid the
designations (Including boundary :
determinations) under section 1O7(d)(4) -
(designations submitted by the States ‘
and promulgated by EPA). The EPA -,
takes this action In accordancewith -
section 107(d)(2)(A). which requires
publication lit the Federal Rsglster?f a
notice announcing or promulgating,
designations under, among other thinga ,
- eclion 107(d)(1) and (4). Beyond that,.
however, section 107(d)(2)(B) provL4e
Promulgation or anno1w i of. :- - .i
designation under paragraph (1), (4) or(S) . -
chaflnotbesubjecttotheprovtslonsof
sectlone553thnwgh557ofdtle5ofthe
United States Code (relating to notice and: -
comment), except nothing herein shall be ’
construed as precluding sush public notice -t
and comment whenever possible.--
By Its terms, this provision exempts .
the designations announced and -. -
promulgated by this notice from the -‘-
notice-and-comment procedures undor
the Mmhihtrative Procedures Act.
Through various publicly availabLe .c.
letters to the States, EPA described Its-
prPllmlnfiry views at various points In -
time as to the designation and -:4
classification of areas, and Interested —
persons had the opportunity to give their
views on the subject to EPA. In addition.
the tight timetables Congress set out In
section 107(d)(4)(AXIHII) made It
difficult to engage In notice-and-- •. -
comment rulen ldng. Therefore, as -:
permitted under section 107(d)(2)(B),
EPA Is today t Wng final action without
notice-and-comment rul.mAldng . In
addition, sectIon 807(h). added by the
CAAAprovldes - -‘•-
It I. the intent of Congress that, Iste,t
with the policy of the M .nInI fratIve .
Procedures Act, the Admmnisiratur In. .. -
promulgating any regulatlon.nnder this Act,
Including a regulation subject to a deadline, -
shall ensure a reasonable period for public -
participation of at least 50 days. us
otherwise expressly provedin section 107(d),
172 (a), 181 (a) and (b), and 180(a) and (hi.
The EPA Is interested, however; In the
public’s vlew4 on whether EPA has - —
made significant errors which could
have been avoided had notice-and- -.
comment rulemaking been possible.
Accordingly, EPA will allow 30 days -
from the date of this document for public
i lmvnenton any such errors, and, if -
suth errors arebrought to EPA’s..;:.::
attention. EPA will cored any technicaL
58704 - ,Federal:Rê lster/Vól 6;- Nd . :Z15/Wednisday. N 4
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Federal R Wer /VoL56, No. 215/Wednesday,- November 6,1991/Rules md R gulat1oni
56705-
errors made. In additloil, if anyone
raises significant new policy Issues. EPA
will pursue notice-and-comment
rulemaking to resolve such Issues. This
• notice will take effect 00 days from the
date of publication, except to the extent,
if any, that EPA determines corrections
are necessary In light of errors
elucidated by timely public comment —
I I. Judicial to view. The CAAA provide
no additional limits on Judidal review of
the designations, Including boundaries.
Accordingly, if a pirty follows the -
appropriate silminlatrative procedures’
under CAAA, sectIon 3O7 the party I.
not barred from challenging EPA ’ . . -
action In this regard through litigation. -
b Classifications— L Notice and 1
comment Sections 181(aJ(3) and
186(a)(Z) rovlde that at the-time EPA
publishes the notice designating ozone-
and CO nonattainment azea ’
The Adinhil.tritor shall publish. notice -
• announcing the classification of (such ozone
or COj nenattainment area. The provision, of
- section 172(s)(1)(B) (relating to lash of notice
and;v n I inaiit and judicial r,vI,w) shall apply
tosucr4II uFIflcatlon.
8ec172(a)(1),whIcblafoundIn-
subpart I of part D, deals primarily with
classifications that EPA may make upon
promulgating a new or revised NAAQS
.and designating areas In accordance-.
with that-new or revised NAAQS. - -.
Section 172(a)(1)(A) authorizes EPA o
make classificatIons; section
• 172(aXl)(B), which Is referenced by -
sections 181(a)(3) and section 186(a)(2),
provideg, In releyant part — - •..
The Adnilniofralor shall publish a notice In
the F.dss.l Register announcing each.
classification under subparagraph lAb e ept
the Mi” trstor shall provide aa
opportun ltyofat lea.ta odaysforwr ltte n
comment Such classification shall not be
subject to the provisions of sections 553
through 557 of titles of the United States
Code (concerning notice end cnm.u .nt ) and
shall not be subject to judicial tevIew until
• Ispecifled timesj.
The EPA interprets the reference
section. 181(aJ(3) and 186(a)(2) to “(t]he
provisions of section 172(i)(1)(D)
(relating to lack of notice and conim t
and judicial review)” to refer to the
second sentence in section 172(a)(1)(B),
not the first sentence. As a result, the
provisions of the first sentence requiring
iSO-day comment period do not apply
to the clomificaflons under section
181(a)(3) or section 188(a)(2), which are
• the sublect of this document The EPA
interprets the parenthetical phrase in
sections Zi(3) and 186(aXZ) to limit
the app&abk previsions of section .
172(a)(lj(B) to those that eliminate the
notice-and-comment requirement, which
are found In the second sentence. This.
riading Is consistent with the fact that
the first sentence In section 172(aJ(1](B)
sets out the requirement For publishing a
notice announcing a classification, a
requirement that Is separately
Incorporated In sections 181(a)(3j and
186(a)(2). This duplication suggests that
the first sentence of section 172(aJ(1)(S)
does not apply.. . -
Similarly, EPA takes the position that
nolice-end-comment rulemaking is not
required for any decisions by EPA under
section 181(a)(4) or section 180(a)(3) to
make, or not to make, reclasefficatlons
on the grounds that the air quality of an
ozone or CO nonattalament area Is.
wIthin 5 percent of the cut-off for a
different classification. Sections
181(aJ(4) and 188(a)(3) provide that EPA
Is to make these decisions ‘by the -
procedure required under paragraph -
(section 181(a)j(3)” for ozone, or “by the
procedure required under paragraph
(section 180(a)(2)j” for CO. As just
discussed, those procedures eliminate
the requiregient (or notice-end-comment
rulemaking. — . : • -
IL Judicioi review. As noted above,
sections 181(a)(3) and 180(a)(Z) provide.
that the provisions concerning Judicial
review found In section 172(a)(1)(B)
apply. Those provisions state that
Judicial review may occur only aften
mbe ftiimInIatr tor takes final action
undersubssctlon(k)orO)ofsect lonl l o -
(concerning action on plan submissions) or
section 179 (concerning sanctions) with
imy to any plan submissions required by
virtue of such cleulflátlon. - -.
AccordIn g ly,j rdIc1 IrevIewon the -
classification decisions ((lncludlhg the -
decisions to niakp, or not to ma1
reclasslficatlona under theb percent
adjustment provisions of section
181(a)(4) and section 186(a)(3)J may be
had only atthose time S.
APM-1O -. -•
1. Initial PM-JO designations.
Previously, EPA published a Federal
Register notice announcing the
designations and classificatIons-for PM-
lOoccurrlng by operation of law upon
enactment of the CM.A (see 58 FR
11101, March15, 1991). In addition, EPA
has published a follo*-up notice
correcting the bounddries and -‘
desl.gnationi of some areas In light of
commc ’nts addressing the March1991
notice (see 56 FR 37634. August 8, 1991).
Both of these notices provide a detailed
discussIon of the history and current
status of ‘—10 areas nationwide. An
abbreviate discussion Is provided here.
Generaky. EPA .‘dopted a PM—b SIP
development policy “grouping” all areas
of the country Into three categories -
based on their probability of violating
the standards when EPA revIsed the
Indicator for particulate matter to PM—b
(seegeneraly 2FR2634,Julyl.1987)
(revising particulate mattr; ndicatcr
from total suspended par Iicu’ates to
PM—la). Th- EPA announced the inttl
groupings - r PM-lOin a Federal -
Register r. ce published on August 7.
1987(52 Fk 29383). The EPA modified
the groupings and boundaries In two
subsequent Federal Register notices
published on March 28.1989(54 FR
12620) and October 31,1990(55 FR
45799). . -
The CAAA provided designations for
PM-b for the first time, using EPA’s
grouping scheme as a starting point.-’ - -
Specifically, the amended law provides
that each former Group I area Identified
in 52 FR 29383 (August 7,1987). except to
the extent modified before enactment of
the CAAA (November15, 1990),waá -• -
designated nonattainment for PM—b
(see 107(d)(4)(B)(I) of the amended ActJ.
The Federal Register notice published
on October31, 1990(55 FR 45799) •‘ -
clariflsiFor ’modlfled” EPA’. ‘.
Identification of the Group I areas listed
- In the August1987 notice. Thus,
general matter, the former Group! areas
listed In the October1990 notice became
nonattalnment for 131—10 by’operatlon
of law upon. enactment of the CAAA
(the October 31,1990 notIce reflects the
revisions announced In the notice - -
published on March 28,1989 (54 FR
12620fl. Any other area (I.e., Group liar
Ill) violating the PM-b NAAQS (as
determined by 40 CFR part 50, Appendix
K) prior tojanuary 1,1989, also was -
designated nanattalnment for PM-b by
operation of law npon enactment of the
CAAA (see section b07(dj(4)(Bj(H) of the
amended Act). All other areas were
designited unclassifiable for PM-b by -
operation of Law upon enactment of the
CAAA (see section b07(d)(4)(Bj(ill) of
the CAAAJ. Finally, all of those areas
designated nonattainment for PM—ia
were classified as moderate by
operation of law at the time of the
designation (see sectIon 188(a) of the
CAAAJ. The EPA will be redaselfying
some of these Initial PM-la
nonattalnmenl areas from moderate to
serious If EPA determines they cannot
practicably attaIn the PM-b air quality
standards by December31, 1994 (see.
section 188(b)(1)).
In the Federal Register notices
published on March 15, 1991 (56 FR -
11101) nd August 8, 1991 (58 FR 37654)
the EPA applied sections 107(d)(4)(B)
and 188(a). and other operetive legal
provisions, and unnounc-d the
designations and classifications for PM—
10. In today’s notice. EPA formally
codifies the desl9natlons and -
classlflãatlons for PM-b announced In
these priOr two notices. Further, In a
-------
• letter dated October 2, 1991. Governor
Stephdns of the State o’ Montana
Wormed EPA that the Augusta, 1991
e rredilons notice contained an editorial
error in the boundary for Libby,:
Montana. The EPA has reviewed the
Governor’s letter and the boundary for
Libby, The EPA concurs with the -.
Governor’s comment and has corrected
the boundary for Libby. Thus, the. - ,
codification of the Initial designations
and classifications for PM-b are en set
• forth In thetable below. Note that.
today’s codification of the Initial
designations for PM-b [ under section
107(d)(4)(S)jln4OCFRpaltB l.
represents Sill agency action for the
• purpose of s!ctlon 307(b) of the CAA.
.2. Addlio, WI PM-IC designaUons. As
diw’u . c 1 above, all areas of the country
were designAted either nonattainnient or
• nnv]auifl ble for PM—b by operation of
law upon cIment of the CAAA • -.
pursuant to section 107(dJ(4)(B) SecUoit
107(dli3) of the CAM authorizes the:
• A”nl”l’tr!tor to redesignate as:.
- nonatf nIIAnt tho.e areas leltilily”’
designated as unrlaasiflable for PM-b.
- (see section 107(d)(3)(A), (B). and (C)].
The EPA has Initiated the redesignation
process for some areas. Specifically. In
January and February of 1991. EPA.
Regional Mmlnlstrators provided
letters to the Nation’s Governors,
Initialing the process o! redeslgnating
- additional areas as nonatfQlnment for
PM-IC. as callid for In seátlou
107(dJ(3)(AJ of the CAAA. In addition. In
a Federal Register notion published on
April . 1991 (56 FR 16V4), the EPA.
Identified those PM-b areas for which
EPA bad notified the Governors of•
affected States that an area’s PM-b
designation should be revised to -
nonattaln .niut4Tl e need to revise the
designation for the section In LaSalle
County. Il 1 Innlç that EPA had Identified
In the April 22, i9 I nQtlce has been
rendered moot. In the correction notice
for the Initial nonattalnment areas
published In the Federal Register of
Augusta, 1991 (56 FR 37654). EPA
Indicated that this section was
designated nonattainment and Included
as part of the Initial Oglesby. illinois,
PM—IC nonattalnnient area.)
In a separate Federal Register notice,
H’A will propose redesignatlons for
these areas In light of comments
received flem the affected Slates. A
more detailed discussion about the
• bW(d 3) zedesignatlon process
and the actions being proposed will be -
describedfn that notice. [ Note that the
section 1O7(dj(3) redesignatlon process
Is different from the lection 107(d)(4)(B)
designations occumng by operation of
law upon enactment ‘of the CAAA In
that the section 107(d)(3) redesignaflons
are not exempt from the notice-and-
comment rulemaking procedures of the
Administrative Procedures Act 1s ction
107(d)(2)(B) of the CAAA).J
As mentioned. EPA Regional
Admtntetrators have corresponded with’
some of the Nation’s Governors,
Initiating the process to redesignate
additional areas of the country as
for PM-la In some,of the
responses to these letter.. States -
requested that EPA expand the
boundarie, of former Group I areas and
make the expansion area part of an
Initial nonattainment area. In the - -
situations where EPA believed there
wasno legal basis to make such an
adjustment, EPA has InilIr ted that It
would treat the State’s request as an
unsolicited request to redesignate the
additional area as nonattainment within
the ‘ nøanlng of section 107(dfls)(D) of
the CMA (56 FR 37654, August 8,1991).
Accordingly. In a separate Federal
Register notice, EPA will determine
whether such submittals Cre complete
and. If so, will propose to approve or
deny the State’s redesignatlona request
[ see section 107(d)(3)(D) of the CAAAI.
3. Total suspended po4lcviates aSP).
Section 107(d)(4)(B) of the CAAA
provides that the designations for
particulate matter measured In terms of
TSP existing Immediately prior to
enactment of the CAAA (November15,
1990) rpmAl ,t In effect. The TSP
designations are to r.m in In effect until
the MmIid trator determines that the
designations are no longer necessary for
Implementing the maximum allowable
Increases In concentrations of
particulate matter, measured In terms of
TSP.pursuant to section 163(b) [ section
107(dX4)(B)J..
Thus, by this notice, EPA announces
that the TSP designations existing
before enactment of the CMA shall
remain In effect for now. Further, EPA
notes that it will review The need for
these designations and provide notice at
such time EPA determines these
designations are no longer necessary far
the purpose of Implementing the
Increments In section 163(b).
C Suif ur Dioxide (SO,) -
- 1. Initial SO, designations. Section
b07(d)(1)(C) of the CAAA generally
provides that those SO, designations
existing before enactment of the CAAA
were affirmed at enactment by
operation of law. Thus.. the designation
of an SO, area ex lst lngjuetpr lorto
enactment of the CAAA [ November15,
1990) become the designation of the aiea
upon enactment end at this time. To
avoid unnecessary duplication, EPA will -
not reprint the codification table for SO.
in today’s notice. For the status of BOa
areas, readers should refer to tbe - -
codification tablescw entlysetlorth Ii
40CFRpart81 ulyb.199l)andtOanY
subsequent modIflcatIan b these SO,.
tables that havebeenpabfl hedInthe’:
FederalReg istar. • •
2AddiUor aISO , dgnotton&As
with the additional PM-10’ ‘ -
nonaltAinment areas. EPA has Initiated
the redesignation of some SO,azeas.
pursuant to section 107(d)(3) of the:
CAAA (section 107(d)(3)(A ) . (B), and
(C)]. In January and February of 1991.
EPA Regional Mmtnhafrators provided:
letters to the Nation’s Governors
Initiating the process of redesignating -
additional areas as nonattalnment for
SO,. as called for In section 107(d)(3)(A)
of the CAAA. In addition, In a Federal
Register notice published on April22,,.
1991(56 FR 16274), EPA Identified those
SO, areas for which EPA had notified
the Governors of aff cted States that an
area’s SO, desIgnation should be ,•.
lsedto nonattainment , • .. : ::
In a separate Federal Rsgid.EPA ...
will propose designations far these:,
areas In light of ,n menta received from
the affected States. A more detailed ,.
discussion about the section 107 (d)(3) ’.
redasignatlon process end the actions
being proposed for particular areas will
bedescrIbedInthatnotice.,.-
uz d ‘- -- ,
: -.
promulgated the lead NAAQS the . -
• Agency believed that Implementation
and maInt.it ncn of the lead NAAQS
shouldbe i naccordahce with the SIP’.
i qu1rements set forth In sectIon 110 a
the CAA and lot Part D. Thetefore, EPA
did not designate areas for lead. The
Agency believed that section 107 and
the Part D requirements were Intended -
by Congress to apply only to NAAQS
which were set prior to 1977. The CAA.
as recently amended In 199( clearly
authorizes EPA to deslgnate.arsas for’
the lead standard in effect at the date of
enactment of the CAAA. Once an area,
Is designated nonattainment for the lead
standard lneffectatthedateof - -
enactment the SIP requirements for the
area axe asset forth In sectIons 191 aqd
192 of the CAM.
Section 10t(d)(5J of the CAAA -.
authorizes EPA to require States to
designate areas (or portions thereofl as
nonattainment, attaInment or
unclassifiable with respect to the lead
NAAQS In effect en of the date of
enactment of the CAAA. As provided In
section 107(d)(5). these lead areas are to
be designated pursuant to the - -
procedures outlined In section
107(dXl)(A) and (B) of the nmaniIe..
66706 ic.’ Fede al Register/Vol 56, - No2l5lWednesday , November 6, iO9ilRules and. RegulaUona . .
-------
F t èt r/ / ó It 215/Wne day Nóvètñb r’61991/Rulü i R g i1at?6 S
•Mptthat r, • noticepublisbedonAprila2, 1991(5SFR Isacthgonlyonthesol ldtedport lonof
subparigraph (B) have been modified by 16274), EPA Identified thoie areas for. . the eubmittals for which EPA h a -.
section 107(dfls). . . which EPA had requested designations ‘det rm1ned madificaliois are nst
Section 1O (dJ(1)(A) of the amended .-. for lead. - eec . . . iy. Th€ unsolicited portion of Ike
CAAA permits EPA to require the The designation requests submitted subrn .r l wifi be addressed In a
i Governors of affected States to submit by the Governors have created several separc’e notice. -
their recommended designations for the different situations which require that A b id desctptian of the
I areas EPA seeks designated In a . EPA act on the designations in several nönattalnment and niwLic iflable lead
tlmefra4ie that EPA deemireasonable. -- actions. The EPA has termed the EPA- areas is provided below. The legally
This thneframe, however, can be nO requested deslgnaUons submitted by - blndlná description of the ñonattalnment
sooner than 120 days, nor later than 1- Governors as “solicited designationaN and unclassifiable area lead boundaries
year, after the date EPA notifies the bod the dei(gnations ubmltted by - for each affected State ii provided In the
State of the requirement to submit such. Governors dn hlsIhem own Initiative as.’ rul,ivu kfrrg tables at the end of this -
designations. Section 107(d)(1)(B) of the “unsolldte4 designations.” The different doaiment.’ “:
CAM tequiries ‘EPA to promulgate these situations and when EPA Intendalo . A lead nonattainment area consists of
des1gnationsnolatertha 1yearafter formallya tonthedèeignafionaarou -thatareawhlcbdoesnotmeet(orthat
nótifyingtheStateoftherequlrementto •-followm . . contr lbutestoamblenta lrqualltyina
designate areas for lead. The EPA may.. . (1) Solidt d designation request. nearby area that does not meet) the lead
• make any modification, deemed - ubmltted viltbln a tifliOfrime sufficient NAAQS (see section 107(d)(1)(A)(flJ. A
necessary to the suggested designations? enough for EPA toreview and process, lead unclassffiable area consists of any
submitted by the State (see generally - . and which EPA does not Intend to • area that cannot be classified on the
section 107(d)(1J(B) of the CAAAJ. modify, are addressed In this document . basis of ivallable information as
Rowev4i no later than 120 days before - - (2) Solicited designation requests . meeting or not meeting the-lead NAAQS
promujgatlng a modified area. EPA must which EPA Intend, to modify will be (see section 107(d)(1)(A)(Ili)J. Generally.
notify the affected State and provide an addressed at a later date. (As mentioned EPA has recommended that the lead
opportunity for the State to demonstrate. earlier, EPA must notify the affected nonattainment and undassiflable
whyanyproposedmodificatlonis : Statel2Odaysprlortothepromolgatlon’- bdariesbedeflnedbythecounty
Inappropriate. If the Governor of an:.,.. of a modified area an 1 I provide d i i perimeter forthe county In which the
• affected State falls to submit the - opportunity fo the St ite to ilenionsirste ambient lead ijonitoife) re ord1ng the
..requlred lead designatlong, In whole or - —*hyany proposed ni pdiflcatlon Is q -. violation of the had NMQS and/or tl?e
In part, EPA Is required to promulgate ! -1nappropz4a a. The EP A notified affected- lead source Ii located. In eome-
the designation that Is deemed . -“ - - States In M y 1991.) 4- - s ltüaUoná, howdveI a boundary other
appropriate for any area (or portion ‘-‘ (3) Unso1I lted desibnation re4uesta than the county Irerimeter iey be ,
‘F’ thereof) not designated by tb State: whlthEPAfniyor iMy notinodify wiul appropriat . Statesmayá ek to (• :. -.
• ;.. -,ln January anlI Februar , 1991, EPA . be addresathlat a later dató.(Although - altirnatlvCly define the lead :-‘ - -
notified the GoVernors of affected States the affected-CovernorehavO be r - - nonattaifimenforlinc lato lflablo .
- that they should proceed to designate as notified widiin the re 9 ulred Umefra iès boundary by aIng ne,or’i: ‘. ‘
: nonattalnmentthoseareqsthathad -: thatEPA1n( ndston odlfythe “I- -comb1natibn qfthefoUowing -m ’
-recorded violatfons of the.lead NAAQ&-.- deslgnaUon subm1ttaL EPA has decided - techniquem (1 Quahtattve naIyaIs. (2)
In addition, EP has requested the - - - - - that I a order to provide adequate time -. spatial Interpolation of air monitoring
- Governors to designate u unclassifiable for the affected Govertiors to respond data, or(3) air quality siMulation by
those areas that contain stationary lead and for EPA to review any response. It - dlspèrslorr modeling. The techniques are
- sources which EPA believes to be would be more appropriateto address described In more detail In ‘Procedures
capable of violating thelead N MQS - theunsol lclteddeslgnatlonrequeets lna- forllstimatingProbabllltyof-
but for which existing air quality data- separate notIca ) - -. - -. NonattaInin nt of a PM-b NAAQS
are Inauffident at this time to designate 2. Today’s action. In today’s notice. - Using Total Suspended Particulate or
as attainment or nonattalnment (section EPA is ecting on those State subinittals PM-b Data;” EPA-450/4-86-017. -
107(d)(IXA)(lll)l. For ailmInl tratlve which were received by EPA In a - - - December1986 If a State seeks to-- -
- efficiency reasops. ln 4 the January and- timeframe sufficient nough to revIew alternatively define a lead” -
February lettets, EPA requested the - — -and proces and which EPA does not zonattaln rñent area. EPA recommends -
States to submit the designations by.- . - Intend to modify. The EPA Is publishing that It submit a reasoned and - -s -
March 15 1991 (the date the Hsts.of. . these designations a cafled for In -- documented Justification-for the
designations for all oso ” and CO areas - section 107(d)(2)(A) oJ the CAAA. The - boundary Identifledi - . %.; I .
- were due from the Coveráor of each -- - States affected by thI notice Includar - - Finally, the air quality monitoring Oats
- State pursuant section 107(d)(4XA) of’ Alabama, Florida, Gargle. Indiana, - and other technical Information . - -
the CAM). In any event, EPA Indicated LouIsiana. Minnesota, Missouri. -. .uppoith g today’s action are available
-. to the States that they had to submit — - Montana. Nebraska. NeW York, Ohio, from the respective EPA Regional Office
- their designations not later than 120, Tennessee, and Texas. The States of - which serves the State where the -
days from the date EPA notified them of Montana. New York. and Texas affected area Is located. The addresses
the requirement to submit such •. submitted both solicited and unsolicited of the Regional Offices are Listed In the
- iioiigruition& lisa Fet :uJ Reg st designation requests. In thIs notice, EPA ddresses section of this document --
I —- -
pet JeII c - Co,edy
- Silef Oeea $ ci L d Mc
- I ,
-------
56708 Federal Register/VoL 5th No. 215/Wednesday, . No ember 8. 1991/Rules and Regulations-.:- .
- WD Lssdks ‘. - - - I f ’ :
• .• P
‘ —“—U — .. —.
• . - . -
- P -
• I-
• - . - ••• -
- . .::
• ---I .-
i__; . — -.
4 - . I .. •.—, • . .•
-- . .
with an opportunIty to demonstrate why CO. The SO 1 NO 1 . and TSP tables axe
EPA ’s proposed modification Is..... not modified by today ea tion but will.
Inappropriate. The EPA also will In the future be revised, as appropriate,
addresi these unsolicited deelgnadoni. to this new format Lead tables Include
In a separate Federal Register notice, to the areas currently designated as -• .
be published In the near future. nanattainment and mirLiglflable. 71 .
4. MIscellaneous. The EPA ffl - ‘• PM-b tables Identify -
continue to assess ambient monitoring.. . currently designated ar nonatt&n!
data as they are received. Areas that. for FM-b. As provided In secfton .
record violations of the lead NAAQS bo7(d)(4)(B) of the CAAA. all of those-
will be reviewed. If EPA determines that areas In a State not designated -
a nonaftaInn iit designation for an area. noDatt (nmPnt for’ FM-1Owere: -.
is approprlate,EPA will so luform the . designated i,,wl ’i .taable for PM-10 . .. . . ,.
Governor of the affected State-and - - The tables do-not specify thePM-10.. . -
require the Governor to submit a - . unr1 . .ffiAble areas but by Implication
designation request. [ section 1W(d)(5) of all those areas not currently designated
the CAAA and muss reference to .. nonst 1 n ent for P11-10 a le L . .tl,gn.ted.
section 107(d)(1)1. - -. . unc l*a elfiable. -••. -. ..:‘ —
Additionally, sectioi 107(d)(i) A) of. • . . •
the CAAA authorizes Governors to . Other’ RS$UWOcy Req mmsnts
eubmlt,atanytlnrethecovernordeerns. - -
appropriate, a list of areas designated as
nonattainment, attainment or, - - . - Under E.O. 12291, EPA Is reqtdred to
unclassifiable for lead. Section . - Judge whether an action Is ‘jajor” j •
b07(d 1)(B](W)oftheCAAAreqihes I therefozesubjecttoth. x equ lrementofi
that EPA must then act on regulatory Impact analysis. The Agency
designation request. In accordance with erni ____
the procedures In section 1o7(d)(3). • nonattainment, and classified -•
• designations end classifications made
DL T.bk . •:: . •- . - • a .i today would result In none of
The tables codified In today’s action àlgnlflcsnt adverse economic effects leL
are significantly different from the . forth In section 1(b) of the E.O. as- •-
tablesnowizcludedIn4oCFRpart8L groundstoraflndlngthatanacftonli
The current 40 R part 81 designation: nraJor.w The Agency ha., theicfous.
listlngs(rev lseduofJuly l, lgPo) concludedthattblsactlon lsnota
Include by State and NAAQS pollutant, Hmajor action under E.O. 12291. ThIs ‘.
a brief description of areas within the rule was submitted to the Office of.
State and their respective designation, Management and Budget (0MB) for..
The EPA has modified this format in review under this EO. -
order to better desaIbe the areas and - A copy of the draft rule as submitted
their attainment status and to account to the OML any documents • .
for the pollutant classifications required. accompanying the draft, any wntten.
by the CAAA. Today’s action Includes- comments received from other agèiej .
completely new tables for ozone and (lndudbj 0MB), and any written
•
• .
LaiJsrana________________
paii 0 MBliOfl taiIU ’
. .i ——
ue,ionco rn
East Baton Rouge PeW’
-. - .- -
i.r 4 J .k
Si kw
pail ot ko*a Co mty .
- - ‘ - t
- - - - • - -
-
— ot c t (teo separate e ” ’ -
p a ilolfleraonCoimly
. . , a.iL
OUeCOmIy .•
J1L11 5
Hcacw lIy - . 1
pail ot Lesb ond Cbt Ca s -i v -
,ensuthuni iil
•
Nsw Ycik
pail at P I cuu*y
Onondaga Cairn - - a
lbUl ...d1
fLL .
ONe -
p a it a tO a t --geco im .
I_E.LL .
T. . -a.
pet c i siisa,cosrn
-I
.
-
use l c iWt,.co ig i
-
Fst,edaCon .
psi .
..O.. .U.l1. .....
tbbgtan
pursuant to section 107(d)(5J of the
CAAA. As with the section 107(d)(4J -
designations for ozone and CO areas,
toe designations under section 107(d)(5)
-are exempt from the Administrative -.
• Procedures Act requirements for notice-
- omment an .frhig (5 U.S.C.
as 553-557) jsee Bection.. •. -
.J(2)(B) of the CAAAJ. Nevertheless,-
- aswlththeozoneandCOdee lgnaUons
- - In today’s notice, EPA will entertain any
comments-on-these actions that are
-------
- Federal Register/VoL 50 No.. 2lslWednesday, November 0, l99lfRules and .Regulat1on .:_50709
responses to these comments have been
Included hi the Docket.
3. Regulatory Flexibility Act
Whenever an agency Is requirec by
law to p .Uish a general notice of
proposed rulemaking. the Regulat y
flexibility Act of 1980 (5 U.S.C. 6(i -612)
generally requires that the agency
prepare a Regulatory Flexibility
Analysis describing the Impact of the
proposed rule on small entitles. Because
this nile Is not required lobe published
first as a notice of proposed rulemaking
under section 553 (the Administrative
Procedures Act) or any other law, It Is
not subject to the requirements of the
Regulatory Flexibility Act.
LLstofSubjectsIn4OCFRPaztu l
Air pollution control. National park.,
Wilderness areas.
Dated October21 1091.
WI1 5.m K. Railly,
Admlrdst rotor.
Therefore, 40 CFR part 81 Is amended
as follows:
1. The authority citation for part 81 is
r ev lsedtoreadasfoflows:
Autboult 42 U.S.C 7407.7501-7515.7001:
S. Sect lona l.300 Is revised to read as
follows: - ‘
•*SI . S00SoopS
(a) Attainment status designations as
• approvedordesl .gnatedbythe .
Environmental Protection Agency (EPA)
pursuant to sectIon 107 of the Act are i
• listed In this subpart Area designations
are sub ject to revision whenever
sufficient data becomes available to i
warrant a redeslgnatlon. Both the State
and EPA canlnltlate t hange to these ;
designation, but any State
redesignation must be submitted to EPA
• for concurrence. The EPA hai replaced
the national ambient air quality
lOb Ona
‘4—
C. --
Cc
Occt C w
a .
standards for particulate mattes’
measured as total suspended particulate -
(TSP) with standards measured as
particulate matter with an aeri. i am1c
diameter le s than or equal to a . uminal
10 mIcrometers (PM-to). Accordingly,
area designations for PM-la are
Included In the lists In subpart C of this
part However, the TSP area
designations will also remain In effect
until the Administrator determines that
the designations are no longer necessary
for Implementing the maximum
allowable Increases In concentrations of
particulate matter pursuant to section
103(b) of the Act, as explained In
paragraph (b) of this section.
(b) Designated areas which are listed
below as attainment (“Better than-
national standards”) or unclassifiable
(“Cannot be classified”) for total
suspended particulate (TSPJ, sulfur
dioxide (SO 3 ), and nitrogen dioxide
(NO .). represent potential baseline
areas or portions of baseline areas
which are ‘used In determining.
compliance with maximum allowable -
Increases (Inrrements) hr concentrations
of the respective pollutants for the
prevention of significant deterioration of
air quality (PSD). With respect to areas
Identified as “Rest of State” It should be
assumed that such reference comprises
a single area deslgnatlon’for .
baseline area purposes. However, for
PM-10, the use of the terra “Rest o
State” lean Interlurmeamire to ‘
designate as unclassifiable all locations -
not originally deslgnated’nonattalnment
for PM-b In accordance with section
107(d)(4)(B) of the Act
(c) For PM-b areas designated’
nonattainment, pursuant to section
107(d)(4)(b) by operaUon of law upon
enactment of the 1990 Amendments to
the Act, the boundaries are more fully
described as follows: .
(1)-For cities and towni, the boufldary
of the nonat$ h ment area Is defined by
the municipal boundary limits as of
November15. 1090, the date the 1990
Amendments weri signed into law.
e c ept for areas wiuich were formedy
catc rized as “Group I areas”. tha hicb
case the nonattainment area’Ie defined
by the municipal boundarylirelts aid
October31. 1990.
(2) SImilarly, for ptzrnnii areas. air
quality maintenance areas, air baslns,
and urban growth boundaries the • -
nonattainment area Is defined by the:
entire planning area, air quality -.
maintenance area, air basin, or urban-’
growth boundary as of November lL
1990, except for areas which were -
formerly “Group I”, In which case the -
boundary Is defined by the entire’
planning area, air quality malntpn nr
area, air basin, or urban, growth
boundary as of October 31, 1900, The -
foregoing Is true except to the extent the
plpnnIng area, air quality inainteizance
area, air basin, or urban growjh....
boundary Is further defined. e.g., by
township, range and/or section. Such -‘
geographical descrlptorsremafn a fixed
part of the nonattalnmentboündarle
Irrespective of whether they ace ... ,
Induded In the planning aze air quality-
maintenance area, air bisln,cr urban’
growth boundary. -
(3) boundartes-ofP4 .10 rii*
subsequently redesignated purmiant 10—’
sect lon b o7(dX3)oftheActw iflbe _-,.‘ -
defined by the city, town, pinning area,
alt qualitymaintenance area. air bas1a.
or urbais growth boundary lneffect the’.’
dateth. designation Igps’vnwlgated.’
3. Section 81.3011. amended by • , -
revising the tables for”Alabama—O.”
and “Alabama—GO”, and by adding a -
new table titled “Alabama—Lead” to be
Inserted In alphabetical order
Immediately following the tabular entry
top “Alabama—SO.” to !..8 !Ollows:
*.t i ---• —
• • • • • • .• -
- • r
AObesM- ban U J .
• -,. .. Tb,.
Dew.
I
- 1
ø4 ‘1 L U
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56762 Federal Register 1 Vol.57 , No. 230 / Monday, November 30, 1992 / Rules and Regulations
Regional Offices
Siman S?udHsn Chief. Stale Air Programs Branch. EPA Region I. .1 .K. Federal
Buildmg. Boston. MA 02203-2211. (617) 5654245.
William S Baker. Chief, Ac Programs Branch, EPA Region I I, 26 Federal Plaza.
Plow York. NY 10278, (212) 264-2517..
Marcia Spinli. Chief. Ak Programs Branch. EPA Region Ill, 841 Chestnut Building.
Philadelphia, PA 19107. (215) 597-9075
Tom Hanson. Acting Chief. Ait Programs Branch. EPA Region IV. 345 Courtland
SI.. NE.. Atlanta, GA 30365. (404) 347-2864..
Stephen H. Rolhblatl, Chief. Regulation Development Branch. EPA Region V.
230 South Dearborn St.. Chicago. IL 60604. (312) 353-2211.
Gary G ezIa,i, Chief, Air Toxics and Radiation Branch. EPA Region V 230
South Dewbom St.. Chicago. IL 60604. (312) 353.8559.
George Czernlak. Chief. At Enforcement Branch. EPA Region V. 230 South
Dearborn SL, Chicago. tL 60604. (312) 353.2088.
Gerald Fonteriot. Chief. Ak Programs Branch. EPA Region VI. 1445 Ross Ave.,
Della.. IX 75202.2733. (214) 655-7204.
Gale Wright Chief, Air Branch, EPA Region VII. 726 Minnesota Ave.. Kansas
City. KS 60101, (913) 236-7020.
Douglas H 8kw, ChIef, At Programs Branch. EPA Region VIII. 999 18th St..
Denver Place . sij 500. Denver. CO 80202.2405, (303) 293-1750
DaM L Calkina, Chief. Air Programs Branch. EPA Region IX, 75 Hawthorne St..
San Fransisco. CA 941d5. (415) 744.1219
George Abet, Chief, At Programs Branch. EPA Region X, 1200 Sixth Ave.,
Seattle, WA 90101, (206) 442.1275. -.
States
Connecticut, Maine. Massachusetts. New Hampshire. Rhode Island. and Ver.
mont
flew Jersey. New York. Puerto Rico, and Virgin Islands
Delaware, DIStriCt of Columbia, Maryland. Pennsylvania. Virginia, and West -
Virg ’mia
Alabama, Florida. Georgia. Kontucky. Mississippi. Noflh Carolina. South Carolina.
and Tennessee
Illinois end Indiana
Michigan and Wisconsin
Ohio end Minnesola
Arkansas. Louisiana. New MexIco. Oklahoma, and Texas
Iowa, Kansas, Missouri, and Nebraska
Colorado, Montana. North Dakota, South Dakota. Utah, and Wyoming
ArIzona, California, Guam, Hawaii. and Nevada
Alaska. Idaho, Oregon. arid Washinglon
Ozone/CO Issues:
Valerie BroadweU/Barry Gilbert.
Ozone/CO Programs Branch, (919) 541-
3310/5238.
Lead and SO 2 Issues:
• I,.awie Ostrand SOilParticulate
Matter Programs Branch, (919) 541-3277.
Particulate Matter issues:
Larry Wallace, SO2/Particulate Matter
Programs Branch, (919) 541-0906,
Issues of a general nature:
• Hank Young. Regional Operations
Branch. (919) 541-5534.
Air Quality Management Division (MD-
15). Office of Air Quality Planning and
Standards. Environmental Protection
Agency. Research Triangle Park, NC
27711.
SUPPLEMENTARY INFORMATIOf
Ete cr . c Availability: This document is
as an electronic file on The
federal LhiUc ir &ard atO am. the day
c pubhcaifiori in tha Federal Regint .
Fuir t e c anve!’ir ‘ of the reader, EPA
a ‘ c±atcd vcreicn of the
kd v ’iduefState air designation listings
that were amended in the Federal
Register of November 6. 1991 (58 FR
56694), merged Into the 1992 Code of
Federal Regulations and further
amended by this document. The updated
files are also available at 9 a.m. the day
of publication. By modem dial 202-512-
3187 or call 202-512-1530 for disks or
paper copies. This file Is available in
Postscript. Wordperfect 5.1. and ASCII.
In the Federal Register of November 0,
1991 (50 FR 58894), EPA issued a final
rule promulgating or announcing the
designations, boundaries, and
cla pifications of virtually all ozone and
CO areas, all PM-b areas, and some
lead areas. Under sections 107(d)(2)(B)
and (d)(5), 172(a)(1)(B). 181(a)(3),
186(a)(2), and 188(a) of the amended
Clean Air Act (CAA). EPA was not
required to solicit public comment prior
to these promulgations, and in view of
the tig 1 it time frames imposed under the
amended CAA for designations,
classifications, end State
implementation plan (SIP) eubmittale,
EPA determined that a formal public
comment period prior to the
promulgations would not be appropriate.
However, in the November 8 rule. EPA
entertained public comments addressing
the technical correctness of its
determinations and significant new
policy, issues. The EPA indicated that
the rule would lake effect 60 days after
the date of puulication.
The designations and bounda ties
promul n ted by the rule took effect on
January 0. 1992. During the comment
period. EPA received comments
addressing typographical errors, 40 CFR
part 61 table presentations. and
technical errors. Independent of the
comments, EPA identified errors in the
40 CFR part 81 tables. With this
Issuance. Ei’A Is making corrections to
some of the designations. boundarIes
and clitssilications that were
pronnilgated or announced in the rule.
These corrections are macic under
section 11O( )(6) of the CAA which
proYidcg as folldws:
Wia’ sever the Administrator determines
that the Admlnistrator’a action approving,
disapproving, or promulgating any plan or
ENVIRONMENTAL PROTECTION
AGENCY
4OCFR Part $1
lAir Docket Na. A-90—42; FRL ”4060-9)
RIN NO. 2060. ’AC5S
Designations of Areas f or Air Quality
Planning Purposes; Amendments and
Corrections
SUMMARY: The EPA Is issuing
amendments to the State-by-State
designations and classifications for the
status of ozone, carbon monoxide (CO)
lead, and particulate matter nominally
10 microns and less in diameter (PM4O)
areas. These are changes based on
Information identified by EPA after
publication of the original rule which
established the current designations and
classifications or information that was
brought to EPA’s attention by comments
A-90-42, located in Rm. M-1500, First
Floor. Waterside Mall, 401 M St.. SW..
Washington. DC, and may be inspected
at this location during the hours from
8:30 am. to 12 noon and from 1:30 p.m.
to 3:30 p.m., Monday through Friday.
except for legal holidays. A duplicate
copy of the docket for each effected
area is located in the EPA Regional
Office of the Region in which the area is
located.
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
on the rule.
EFFECTIVE DATE December 30, 1992.
ADDRESSES: Materials relevant to this
rulemaking are included in Air Docket
FOR U?tThER INFORMATION CONTACT:
For questions relating to specific areas,
please contact the appropriate EPA
Regional Office:
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Federal Register I Vol. 57, No. 230 ‘ Monday, November 30, 1992 1 Rulc and Reguletfous 56763
p!an revision (or pert thereof), area
designation, redesignation, classification, or
reclassification was In error, the
Administrator may In the same manner as the
soproval. disapproval, or promulgation revise
such action as appropriate without requiring
any further submission from the State. Such
determination and the basis thereof shall be
provided to the State and public.
The EPA Interprets this provision to
authorize the Agency to make
correction. to a promulgated regulation
when III . ehown to EPA’. satisfaction
that (1) EPA clearly erred In failing to
conelder or Inappropriately considered
Information made available to EPA at
the time of the promulgation, or the
Information made available at the time
of promulgation Is subsequently
demonstrated to have been clearly
Inadequate; and (2) other Information
persucelvely supports a change In the
regulation.
Following!. a discussion of the
corrections made to the November 0,
1991 final rule. All other comments
submitted with respect to the rule are
diecussed In a Technical Support
Document contained In Air Docket A-SO-
42.
• Commands Relating to Typographical
Errors and 40 CFR part 81 Table
Pre aentat lon
Carbon Monoxide
California
The Air Pollution Control District of
San Diego County commented that the
boundary description for the San Diego
Co nonattainment area Is Incorrect in
the November 0, 1991 document. The
Area’s preenactment boundary and the
boundary described by the State In a
December 28,1990 letter to EPA are
Identical. However, EPA Incorrectly
expanded the nonattainment area in the
Novcmber 6,1991 document. The EPA
acknowledges this error. The correct
boundary description for the San Diego
area CO nonattaininent area now
appears In the tabular entry of this
document.
Virginia -
The Commonwealth of Virginia
questioned why the following areas that
are part of the Air Quality Control
Regions (AQCR) and are in attainment
are separated out from their respective
AQCR’s in the November 0.1991 rule:
AQCR 047 (National Capital Interstate),
AQCR 223 (Hampton Roade Intrastate).
• and AQCR 225 (State Capital Intrastate).
The.xp&anationlathatlntherule,
- EPAfo&wed the same listing format as
- bnmedydescribedIn4OCFR 81.348.
IL _ ,.,.. . EPA will combine the areas
ondrsilsair respective AQCR’s in a
1al .hi ’ei*y of this document since the
mcmveafth baa requested this. The
Commonwealth should be aware that
doing so may affect the prevention of
significant deterioration (PSD) baseline
study area.
AQCR 223 Hampton Roads was
Incorrectly listed as”AQCR 223
Hampton Roads.” The area is now listed
correctly as “AQCR 223 Hampton Roads
Intrastate” In the tabular entry of this
document.
Ozone
Illinois
The townships “Goose Lake” and
“Aux Sable” were Incorrectly listed as
“Gooselake” and “Auxsable” in the
November 6. 1991 document. This error
Ia corrected In this document.
North Carolina
The word Bumcombe” was
incorrectly listed as “uncombe” In the
Designated Area column of the
November 6, 1991 document. This error
Is corrected in thia document.
Virginia
The Commonwealth of Virginia
commented that “Hampton Roads Area”
Is the preferred description for the area
that EPA describes as the “Norfolk-
Virginia Beach-Newport News Area.”
Although EPA’. original description Is
consistent with how other areas are
named, I.e., by using the Metropolitan
Statistical Area (MSA) name, EPA
concurs with the Commonwealth’e
request and has revised the description
to read “NorfoLk-Virginia Beach-
Newport News (Hampton Roads) Area.”
The Richmond nonattainment area
was listed Incorrectly as the “Richmond-
Petersburg Area.” Since Petersburg Is In
attainment, th area Is now described as
the “Richmond Area” In the tabular
entry of this document.
The Commonwealth also commented
that the title for AQCR 207 is Incorrect.
The ozone table Is corrected by
changing this title to “AQCR 207 Eastern
Tennessee - SW Virginia Interstate.”
Ozone and Corbon Monoxide
Oregon
The Oregon Department of
Environmental Quality commented that
the Salem area was listed In the
November 8, 1991 notice as the “City of
Salem” for both ozone and CO.
However, in an earlier letter to EPA
(March 15,1991), Governor Roberts
recommended that these ozone and CO
nonattoinment boundaries be reaffirmed
as the “Salem Area Transportation
Study (SATS).”
Accordingly, the subheading “City of
Salem” is replaced with “Salem Area
Tr nsportation Study (SATS)” as
requested.
Also. in her March 15, 1991 letter to
EPA, the Governor recommended that
the carbon monoxide nonettainment
boundary for Medford be established as
the “Medlord Urban Growth Boundar
The rule Incorrectly designated the
“Medford-Ashland Urban Growth
Boundary.” There Ia no such
geographical entity: therefore, the
description Is corrected In the tabular
entry of thia document to read “Medford
Urban Growth Boundary.”
Virginia
Since Nansemond County Is no longer
a governmental entity, the County Is
removed from the tabular entries of this
document. Nansernond County has been
annexed by Suffolk City.
EPA-Discovered Errors In 40 CFR pan 01
Tables
PM-JO
The EPA Inadvertently erred In
crafting the PM-b tables Included In the
November 6, 1991 fInal rule. The PM-b
tables appropriately Identified those
areas currently desIgnated as
nonattalninent for PM-b pursuant to
section 107(d)(4)(BJ of the CAA.
However, all of the areas In a State not
designated nonattalnment for PM-b
were designated unclassifiable under
section 1O7(d)(4)(B)(lii) of the CAA (see
56 FR 56705). The PM-b tables
published In the November 6, 1091
document omitted the “Unclassiflabli
designation for the “Rest of State” ar
not otherwise designated
none Itainment. (If the State currently
has no PM-b nonattalnment areas, then
I I follows that the entire Stale Is
designated unclassifiable for PM-b.)
(See section 107(d)(4)(B)(iii).J For
administrative efficiency reasons, EPA
Is not codifying in 40 CFR part 81 these
State-wide unclassifiable designations.)
The 40 CFR part 81 tables appearing In
this document correct the oversight. Tho
PM-b table headings are also modified
by removing the word “Initial.”
It Is Important to reiterate that total
suspended partlculales (TSP) national
ambIent air quality 8tafldflrds (NAAQS)
designations will remain In effect for the
purpose of Implementing the maxhnum
allowable Increases (Increments) In
concentrations of particulate matter,
measured In terms of TSP, pursuant to
section 103(b) of the CAA. until EPA
- determines that the TSP designations
are no longer necessary for that purpose
(see section 107(d)(4) and 50 FR 50706
and 50709; November 0, 1991).
Carbon Monoxide
Connecticut
A typographical error Involving th
New Haven-Meriden-Waterbury eni
corrected. The tabular listing lncorrti
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56764 Federal Register / Vol. 57,
No. 230 f Monday, November 30, 1992 / Rules and Regulations
included the classification description in
the designation column. The error Is
corrected.in this document.
Michigan
The tabular listing for AQCR 082
incorrectly omitted “South Bend” in its
title. The correct entry ‘AQCR 082 South
Bond-Elkhart-Benton Harbor Interstate”
is included In this document.
Minnesota
In the November 8. 1991 rule, portions
of three Minnesota Counties (Benton,
Sherbume, and Stearns) that make up
the City of St. Cloud were listed as
“Unclessifiable/Attalnment.” However,
the table should have included a
footnote explaining that the area is in
the process of being redesignated to
attainment for CO. and until such time
as the redesignation approval is
finalized the listing will have no force or
effect (see the footnote added to the
Minnesota — Carbon Monoxide table
for clarification).
West Virginia
A footnote explaining the attainment
status of Brooke and Hancock Counties
was accidentally left out of the
November 8, 1991 final rule. The
footnote is included In the tabular
scëtion of this document.
Comments Relating to Technical Errors
Lead
Georgia
The Georgia Environmental Protection
Division (on behalf of the State of
Ceorgia) submitted comments
requeating a revision to the lead
nonattainment boundary for Muscogee
County. The State proposed to change
the boundary of the lead nonattainxnent
area from the entire County to a circle
with a radius of 2.3 kilometers. with the
CND. Inc.. lead smelting and battery
- production facility in the center. Georgia
submitted dispersion modeling
‘demonstrating that this boundary is
more appropriate than the entire county.
In the preamble to the November 8.
1991 rule. EPA described its policy for
determining the boundary of a lead
nonattainment area. The EPA indicated
that the definition of nonattelnment area
in section 107(d)(1)(A)(i) of the CAA Is
the controlling legal standard. The EPA
noted that generally It had
recommended that the lead
nonattainment boundary be defined by
the county perimeter for the county in
,.lnch thc s thient lead monitor(s)
r erdzng the vkdation of t ’.e lead
- San4/c ’iesdsource is located.
Thi’D ,a1sn r 1eth .at there may’ be
tuiznmg w cna bc’ ndery other then
ti:e” typeaimeter may be
.pproprfafe
States may seek to alternatively define the
lead nonatteinmeni or unclassifiable
boundary by using one, or a combination, of
the following technique.: (1) Qualitative
analysis. (2) spatIal interpolation of air
monitoring data, or (3) aIr quality simulation
by dispersion modeling. The technique. are
described In more detail in “Procedures for
Estimating Probability of Nonattainment of a
PM.1O NAAQS Using Total Suspended
Particulate or PM.1O Data.” EPA.450/4-86-
017, December 1908. If a State seeks to
alternatively define a lead nonattainment
area. EPA recommends that it submit a
reasoned and documented justification for
the boundary identified (56 FR 58707).
Also in the preamble to the November
6, 1991 rulemaking. EPA indicated that It
would entertain comments on the
technical corrections of its
‘delemuna lions and significant new
policy issues (56 FR 50094). The
dispersion modeling and associated
documents submitted by Ceorgia reflect
a reasoned and documented justification
for defining the nonattainment boundary
to include only the area within a 2.3-
kilometer radius of the CND facility. The
State has demonstrated that the 2.3-
kilometer boundary includes both the
portion of the county that does not meet
the lead NAAQS and the source of the
nonattainment problem (see section
107(d)(1)(A)(i) of the CAAJ. Further.
Georgia’s submittal called into question
the technical correctness of the earlier
boundary determination for this area.
For these reasons, relying on its
authority under section 110(kfl8) of the
CAA. EPA is modifying the lead
nonattainment boundary for Muscogee
County. Georgia. from the entire county
to that part of the county which Includes
a circle with a radius of 2.3-kilometers
‘with the GNB lead smelting and battery
production facility in the center.
As provided in section 191(a), the Part
D SIP for that portion of the County
remaining nonattainment for lead will
be due 18 months from the effective date
of the nonattainment designation for
that area (i.e., 18 months from January 6,
1992, the effective date of the November
6, 1991 rule).
Ozone
Michigan
As described in the November 6.1991
final rule, EPA generally relied on the
years 1987-1989 for ozone designations
and classifications. However, in some
cases. EPA used complete 1988.1990
data if they were quality assured and
pubhcly available in the Acrometric
Information Retrieval System (AIRS) by
February 13. 1P91. qnd the State
requ -ated a Ii em classification for the
nonr. • nment area. I: the November 6,
1991. ‘.aI rule, EPA announced the
classification of Muskegon County.
Michigan. as serious based on 1967-1989
data. Based on correspondence with the
State and upon reviewing the record,
EPA has determined that the 1988-1990
ozone concentrations data for Muskegon
County. Michigan, were eubm tted
before February 13, 1991, and justify a
moderate classification based on the
design value. In addition, the Slate of
Michigan requested that EPA classify
the area as moderate. Thus, Muskegon
meets EPA’. criteria for classification as
a moderate area.
Washington
In a letter from Governor Booth
Gardner to the Administrator, dated
December 18. 1991, Washington State
presented a case that the Puget Sound
Region “experiences unique geographic
and urbanization patterns and
climatologlc l conditions” and that a
rigorous evaluation to establish more
appropriate boundaries than those
proposed is warranted. The State
submitted a specific boundary
recommendation on January 17.1992. in
a letter from the Assistant Director of
the Washington Department of Ecology
to the Regional Administrator of Region
X. This letter contains the technical
details and justifiration for the State’s
boundary recommendation.
In light of this inforina lion. EPA is
correcting the Seattle ozone
nonattainment area boundary under
section 11O(k)(6) of the CAA as
amended. In nmen ing the
nonattainment boundary. the State
relied on a variety of informaiion,
inciudin8 air quality data, point source
information, land use patterns and
projections, climatic and meteorological
data, ozone generation and transport
dynamics, and population density data.
The State obtained population density
information from the Puget Sound
Regional Council and compiled it into
zones which are nearly Identical to U.S.
Census tracts. The population in each
tract was ranked by density and then
accumulated and mapped by
percentages of total population. The
population data were mapped into a
band which represents 95 percent of the
population in the three-county area. This
information was compiled for 1990 as
well as projection years of 2010 and
2020. The map encompassing 95 percent
of the three-county population for each
was the preliminary step in establishing
the boundary. The State then compared
the map with the other criteria. Land
uses such as major industrial eite’.
cities, and transportation corridors were
reviewed, and boundaries were
expanded o necessary to assure
inclusion. Finoliy. the boundary was
expanded further to account for ozone
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Federal Register / Vol. 57,
No. 230 I Monday, November 30. 1992 I Rules and Regulations 5 5
transport. Meteorological conditions and
a limited amount of special study ozone
data were considered in this final
adjustment. The final boundary
recommendation by the State covers all
the urbanized area as defined by the
[ IS. Census Bureau. The boundary
covers all of Pierce County. nearly all of
King County, and the urbanized portion
of Snohomish County. The boundary
contains greater than 95 percent of the
current and projected population.
virtually all of the sources of oxides of
nitrogen and volatile organic compounds
In the three-county region. the
monitoring sites, and areas that are
likely to receive transported ozone. In
this document. EPA I. correcting the
boundaries to conform to the State’s
recommendation.
Wisconsin
As described In the November 6. 1991
final rule. EPA generally relied on the
years 1987-1989 for ozone designations
end classifications. However, in some
cases. EPA used complete 1988-1990
data I I they were quality assured and
publicly available in AIRS by February
13.1991 and the State requested a lower
classification for the nonattainment
area. In the November 6. 1991 final rule.
EPA announced the classification of
Sheboygan County as serious based on
1987-1989 data. Based on
correspondence with the State, snd
upon reviewing the record, EPA has
determined that the 1908-1990 ozone
concentration data for Sheboygan
County were submitted before February
13.1991 and justify a moderate
classification based on the design value.
in addition, the State of Wisconsin
requested that EPA classify the area as
moderate. Therefore, Sheboygan County
meets EPA’s criteria for classification as
a moderate area. In this document, EPA
is correcting the classification to
moderate.
Carbon Monoxide
Massachusetts
Several commenters questioned the
use of 1988 data to classify the Boston
nonettainment area as Moderate, and
argued that the area should be treated
as attainment on the basis of 1988-1989
date. EPA is continuing to review these
comments. As a result, EPA Is not, in
this notice, revising the designation or
classification of the Boston area, and
EPA intends to respond to the
In a Suture action.
New Y sk
U—.- ’”-4oftheCAA
of i 90, the existing
nonattaininent areas, Including the New
York-New Jersey-Long Island
Consolidated Metropolitan Statistical
Area (NYC CMSA). were reaffirmed as
nonattainment for ozone by operation of
law. In addition, on November 15. 1990,
the NYC CMSA was classified as a
severe ozone area with 17 years to
attain the standard based on its
calculated ozone design value of 0.201.
part per million. Section 107(d)(4)(A)(iv).
(v) of the CAA requires that the
boundary for a serious, severe, or
extreme area become the entire CMSA
unless the Governor of the respective
State notifies EPA that more time is
needed to study the boundaries. A
finding concluding that a smaller
boundary is more appropriate had to be
completed and EPA had to concur In the
finding by January15. 1992, or the New
York City nonattainment area would
automatically become the entire CMSA.
On December 28, 1990, New York State
formally requested additional time to
study the appropriate boundary for the
NYC CMSA as it relates to the air
quality designations for the Counties of
Orange and Putnam. In a March 21, 1991
letter and In a June 4, 1991 letter, New
York State again requested additional
time to evaluate the boundaries of
Orange and Putnam Counties. On
January15. 1992. New York State’s
Department of Environmental
Conservation (NYSDEC) formally
submitted a study (NYSDEC had
previously submitted drafts of the study)
to the EPA Region I I Administrator
discussing the designations and
classifications of Orange and Putnam
Counties. New York State made the
following boundary recommendations In
the study based on population densities,
population growth, and air quality in the
area:
Orange County—Town. of Blooming
Grove, Chester, Highlands. Monroe,
Tuxedo, Warwick, and Woodbury
remain with the New York City
nonattainment area and are classified as
severe-Il.
Orange County—Other 16 towns and
cities are designated as attainment.
Putnam County— Entire County Is
designated as nonattainment and
classified as marginal.
The primary reason for exduding
portions of Orange County and all of
Putnam County from the NYC CMSA
was that the excluded areas do not
contribute significantly to ozone
violations in the NYC CMSA. The State
reviewed population growth in Orange
and Putnam Counties for the last 10
years and found that the sevef Orange
County towns listed above experienced
high population growth rates of nearly
30 percent. These seven towns are
located in the southeastern portion of ‘
the County ixnznediately north of
Rockland County along the Huds 1
Valley, and they are closest to thu
of the CMSA. By way of contrast.
population grew much slower in the
remaining portions of Orange County
and in all of Putnam County. The towns
In Putnam County experienced only a 3-
percent population growth.
The study also examined the
attainment status of these and
surrounding areas. Although there is no
permanent ozone monitoring station In
either Orange or Putnam County, a
properly sited, temporary EPA
monitoring station In West Point,
Orange County. measured ozone
concentrations in the severe
classification. These violations are
believed to be the result of transported
ozone from the NYC CMSA. Based on
the high population growth rate in the
southern part of Orange County, Its
proximity to the rest of the NYC CMSA
severe nonattalnnient area, and the
measured violations at the West Point
monitor, New York State recommended
that the southern seven towns of Orange
County be designated nonattainment
and classified as severe, thus being part
of the NYC CMSA nonattainment area.
Similarly, based on the small
population growth In the northert 1
portion of Orange County, New Y
State recommended that the northern
portion of Orange County be excluded
from the NYC CMSA and designated
attainment. The State recommended
that Putnam County be grouped with
Dutchess County and classified as a
marginal nonattaininent area. The State
concluded that the Putnam County
classification should be marginal, based
on the fact that the County will be
surrounded by nonattainment areas.
most of which are classified severe, and
that the population density of Putnam
County (362 people per square mile) is
comparable to Dutchess County (321
people per square mile), a county
immediately to the north of Putnam
County which is classified as a marginal
nonattainment area.
It should be noted that New York i .
located entirely within the Northeast
Ozone Transport Region, and all areas
of the State are subject to certain
controls regardless of their attainment
status. On January15. 1992, the
Administrator agreed with the State’s
finding that northern Orange County
end Putnam County do cot significantly
contribute to ozone violations in t’
NYC CM&A nonattainment area.
January 15, 1992, letter to the NYS
Commissioner, the Administrator
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567&S Federal Register I Vol. 57, No. 230 / Monday, November 30, 1992 / Rules and Regulations
approved the State’s request to exclude
ortions of the NYC CMSA.
By letter to the U.S. EPA
Administrator dated May 21,1992. a
commenter objected to the exclusion
tram the NYC CSMA nonattainment
area of the northeastern portion of
Orange County on grounds that the total
population, population density, prior
population growth. commuting patterns,
and growth projections indicate that
sources in this area do contribute to the
nonattainment problem. Dy letter to the
U.S. EPA General Counsel dated july 23.
1992. (hi. cominenter extended it.
objection to the exclusion from the NYC
CSMA nonattainment area of all of
Orange County as well as Putnam
County.
Due to the facts that these comments
wc e submitted recently, and that EPA
must coordinate its analysis with the
State, EPA has not, to date, been able to
complete its evaluation ol these
comments. Accordingly. EPA plans to
proceed with the designation and
classification of Orange and Putnam
Counties as described above; however.
EPA will continue to review the
coinznents received to date, and will
entertain any additional comments on
this action that are received by
Pecember 30. 1992. for the purpose of
correcting errors In the determination
that the northern portion of Orange
County and all of Putnam County should
be excluded from the NYC CMSA
nonattalrment area. Following this
period. EPA. in consultation with the
State. will come to closure on the
boundaries issue, and will provided the
appropriate notification.
Florida and Ohio
As of November 6, 2991. thu EPA and
the States of Florida and Ohio were still
discussing expanding the ozone
boundaries olihe Tampa. Florida. MSA
and the Parkcrsburg. West Virginia.
Marietta. Ohio. MSA to Include,
respectively. Pasco County. Florida, and
Washington County, Ohio (see 50 FR
56701). At enactment of the CAA
Amendments of 1990, both counties
were designated unclasslfiable/
attainment by operation of law. The
EPA and these States were reviewing
these designations under the process set
out in section 107(d)(4)(A) of the CAA to
determine whether these designations
stLouldbe confirmed or reversed. The
EP.t has completed Its review and
ctr.curs withitheStates of Florida and
01;3 that Pasc County and
Wa ngtan Cotr y. respectively.
- n1taInmr
Cdrôon Monoxide
Utah
The November 6, 1991 notice
reaffirmed the designation of the City of
Prove as nonetteinment for CO (50 FR
56846). However, the listed designation
of Unclassiiiable/Attainment for the
remainder of Utah County did not reflect
EPA action under section 1O7(d)(4)(A).
At that time, the State and EPA were
reviewing whether to confirm or revise
that designation, and EPA committed to
publish a subsequent Federal Register
document to that effect. During the
designation process, EPA received
numerous comments both In support of
expanding the existing boundary and in
opposition to expansion. The nature of
this issue, coupled with the many
comments received from the public.
made it apparent to EPA that more
information was needed In order to
adequately define the boundaries. With
receipt of the Covernor’s commitments
to carry out a comprehensive analysis in
developing the SIP (due in November
1992), EPA agrees with the State that the
SIP development process is the
appropriate vehicle in which to obtain
this additional information.
Therefore. EPA reaffirms the existing
designation of Unclassifiable!
Attainment for the portion of Utah
County outside of the Provo City limits.
fulfilling EPA’s responsibility wider
section 107(d)(4)(A).
All comments and official
correspondence between the Stale of
Utah and EPA on the subject of the
Provo nonattainment boundaries for CO
are available for public review in EPA
Air Docket A-U0-42..
Effective Date of Designations.
Classifications, and Boundaries for
Ozone and CO Nonattainment Areas
For ozone and CO areas, corrections
and other revisions made by this
document will take effect December 30,
1992. As explained in more detail in the
Technical Support Document, the
effective dale of the designations.
classifications, and boundaries of ozone
and CO areas established In the tables
in the regulatory text, as may be corrected
or revised by this document, may differ,
depending on the area and the partlcuiar
requirement More specifically, for the
portions of ozone and CO
nonattainment areas that were
designated nonattainment prior to the
date of enactment of the amended CAA.
the relevant elfectivo dnte is November
15, 1990 (the date ole” -tmenl).
For arena thr.t wcrc signaied
ettainment prr’rnncth. but i re pail ol
a larger area ‘hich contains
preenactment nonattaintnent portions.
the effective date of the designation to
nonattalnment is November 15. 1990. for
the following purposes oniy (1) the 5-
percent classification adjustment under
section 1B1(a)(4) (ozone) or section
186(a)(3) (CO); (2) the C/MSA boundary
adjustment under section
107(d)(4)fA)(iv)-(v): and (3) determining
the scope of a ‘covered area” under
section 211(k)(10)(d) and opt-in under
section 211 (k)(6) for the reformulated
gaspllne requirement. For all other
purposes the effective dcsignatinn dale
is january 6.1992 (except for a
nonattainment portion of Orange
County, NY. and for Putnam County.
NY, for whkh the effoctive date is
January 15.1992). These other purposes
include the applicability of new source
review provisions and other substantive
Stale or Federal pollution control
requirements.
For current none ttalnment areas
dc Ignatcd attdninent preenociment
and not contninln,j . ny preenactmcnl
nonattainment portions, the effective
date for all purposes is January 6,1992.
Subjects In 40 CFR Part 81
AIr pollution control. National parks.
Wilderness areas.
Datc& November 17, 1992.
William K. Reilly,
Adrninisimlor.
PART 81—f AMENDED)
Therefore, 40 CFR pail 81 Is amended
as follows:
1.The autho ty citation for part 81
continues to read as follows:
AutborltT 42 U S C. 7407.7501.7515. 7Utfl.
2. In 81.300. by adding new
paragraph (il) to read as follows:
81.300 Scoru.
(d) For oz ’: ’e and carbon monoxide
(CD) areaq the effective date(s) of air
quality aic desigr.ations and
classiflcatons are described as follows:
(1) For the porti-nc of ozone end CO
nonattainment aaea3 that were
designated nonatteinment prior to the
date of enactmei t of the Clean Air Act
Amendments of 1990 (preenaclment).
the effective date is November15. 1990.
(2) For the portions of nonattainment
areas that vcre designated attainment
prior o November 15, 19 0. and
included as rail of an area desigr’ated
nonnl ai : ii . nt prior to November 15.
1990. the cffcr: ivc date of the
de igniition to nonaltainment is
Nu rnber 15. 1990 Ion
(I) Purposes of determining whether
the portion of the nonatlalnment ares is
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Federal Register / Vol. 57, No. 230 / Monday, November 30, 1992 I Rules and Regulations 56767
eligible for the 5-percent classification
adjustment under section 181(a)(4)
(ozone) or section 186(a)(3) (CO):
(ii) Triggering the process for
determining the C/MSA boundary
adjustment under section
1O7(d)(4)(A)(Iv)-(v);
(iii) Determining the scope of a
covered area” under section
211(k)(1o)(D) and opt-in under section
211(k)(6] for the reformulated gasoline
requirement.
For all other purposes the effective
designation dale Is January 6. 1992
(except for the nonattainment portion of
Orange Co., NY, and for Putnam County.
NY. for which the effective date is
January 15. 1992).
(3) For nonattainment areas
designated attainment preenactment,
and not included as part of any
nonattoinment area that was designated
rtonattainment preenactment. the
effective dale for all purposes is the d
of the designation.
3. Section 81.302 is amended In the
table for “Alaaka-PM-lO” by removing
the word “initial” from the heading of
the table and by adding an entry at the
end of the table, to read as follows:
81.302 Alaska.
a a.
Alasita—PM-1O Nonattalnmont Areas
Designated Area
S
San Diego Area
ego County (pam
The Western Section of Atr Pollution Control District of
San Diego County is defined as eli that poltion of San
Diego County. State of California, lying westedy of the
f000wliig desathed tie:
1. Sagonlng at the Nwth,mt of Towi,stiip 9 South,
Range I Weal, San Bemai* o Baa. and Meslthan;
2. thence nsv*ig Southerly along the West o of said
ID the .ouut le thacot:
3. ce E l iteng uald South a e to the range
Rai I West and Range I East.
4. Raali&p ng ead range bne to the town.
eean T shg I I South and 12 South,
5 £ e along eaid tcwnsh line to the range
Oe m— ’ Range I East and Range 2 East,
4 4e 1L ‘ “
: tb
f V.,
Designated Area
Designation
Classification
Date Type
Date Type
S S
Rest of State .
—
S S S S S
11/15/so Unclassifiable
• • S • the word “initial” from the heading of 81.303 Adaona.
a the table and by adding.an entry at the • . a • a
4. Section 81.303 Is amended In the end of the table, to read aa follows:
table for “Arizona—PM.i0” by removing
Mzona—PM-10 Nonattaunment Mesa
Designated area
Deugnatlon
lasstfication
Dale Type
Date Type
• S
Rest of State........._............................_........... ........
S S • S S
11/15/90 Unclassifiable
• • • a S (Remainder of)” and by amending the - entry at the end of the table, to read as
5. Section 81.305 is amended in the table under ‘California—PM.10” by follows:
table for “California—Carbon removing the word “initial” from the
Monoxide” by revising the entries “San headin of the table and by adding * 81.305 CalIfornia.
Diego Area” and “San Diego Air Basin S. a •
Calilomia—Carbon Monoxide
Designation
Classification
Date’
Type
Date’
Type
S S a •
Nonattainment
Moderate 12.7 ppm
-------
UZ/UJ/ 4 ij :i 41 U 4
AQMD RTP ...... OGC
I j 002/006
fri — &fiu ,
5r 4 ,
4,
l
SUBJECT:
FROM:
TO:
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
Research Triangle Park. North Carolina 27711
FEB 31994
Procedures for Processing Bump Ups and Extension
Requests for Marginal Ozone Nonattainment Areas
D.Kentrry,ActingDector (ZbID 15)
Director, Air, Pesticides and Toxics
Management Division, Regions I and IV
Director, Air and Waste Management Division,
Region II
Director, Air, Radiation and Toxics Division 1
Region III
Director, Air and Radiation Division,
Region V
Director, Air, Pesticides and Toxics Division,
Region VI
Director, Air and Toxics Division,
Regions VII, VIII, IX, and X
PURPOSE
This memorandum provides guidance to the Environmental
Protection Agency (EPA) Regional. Offices and States on two
important sections of the 1990 Clean Air Act Aiuendinents (Act)
that currently impact marginal. ozone nonattainment areas. The
provisions cover bump ups for failure to attain the national
ambient air quality standards (NAAQS) and attainment date
extension requests. Additionally, this memorandum clarifies the
impact that bump ups have on ozone nonattainment rural transport
areas, and discusses State submittals of air quality data on an
accelerated schedule. Finally, this memorandum outlines the
steps States need to taice when requesting voluntary bump up or
attainment date extensions and the process for EPA action en such
requests.
BACKGROUND
Section 181(b) (2) of the Act states that within 6 months
following the applicable attainment date for ozone nonattainment
areas, the Administrator shall determine whether the area
attained the standard by that date. For areas that have not
a.tta ned the standard, the Act states that they shall be
reclassified by operation of law (bumped up) to the higher of:
1. the next higher classification; or
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02/03/94 09:18 ‘ ‘919 541 0824 AQMD RTP -.- . OGC I J003/006
2
2. the classification associated with the area’s design
value. -
The Act requires the Administrator to publish a notice in
the Federal Register identifying the areas that have not attained
the standard no later than 6 months following the attainment
date. Section 181(a) (5) of the Act gives the Administrator the
discretion to grant up to two 1—year extensions of the attainment
dates specified in section 181(a) upon application by any State
if:
1. the State has complied with all requirements and
commitments pertaining to the area in the applicable State
implementation plan (SIP); and
2. no more than one measured exceedance of the NAAQS for
ozone has occurred in the area in the year preceding the
extension year (e.g., in marginal areas no more than one ’zneasured
exceedance of the NAAQS could occur in 1993). This requirement
does not preclude areas that have more than one measured
exceedance of the standard in a year preceding 1993 from
requesting and receiving an extension.
POLICY SUMMARY
This policy statement is directed to bump ups, extension
requests, rural transport areas (RTA’s), air quality data, and
submittal and processing.
Bumri Ups
When making the determination as to whether an area has
attained the NAAQS, EPA will use the most recently available,
quality-assured air quality data covering the 3-year period up to
and including the attainment date. For ozone, the ‘average number
of exceedances per year shall be used to determine whether the
area has attained. For marginal ozone nonattairiment areas, this
means that the air quality data for the period 1991 to 1993 will
be used to determine whether the area attained by November 15,
1993.
Extension Reciuests
When requesting an extension, States should consider the
consequences of eventually not attaining the NAAQS. Although
areas can request two 1—year extensions, those that ultimately
fail to attain th NAAQS will be bumped up to at least a moderate
classification by operation of law upon a determination of
nonattairiinent. Areas that are bumped up will be subject to the
SIP requirements applicable to the new classification (see
subpart 2 of the Act). Section 182(i) of the Act states that the
attainment dates for reclassified areas cannot be adjusted. For
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b2 03/94 09:19 919 541 0824 AQMD RTP OGC I j004/OO6
3
moderate areas, the attainment date specified in table 1 of
section 181 is November 15, 1996. Consequently, areas that are
bumped up will be under very tight tiinefraznes to implement the
new SIP requirements, in addition to achieving the reductions to
meet the new attainment date. If a newly classified moderate
area does not attainthe NAAQS by November 15, 1996, it could
then be bumped up to a serious or severe classification, which
would impose even more st ] ingent requirements for the area to
meet.
The EPA, therefore, encourages any State that believes it
has an area that will be unable to attain by its applicable
deadline to voluntarily request bump up early to maximize the
available time for implementing the requirements of the next
higher nonattainment level. Early bump up will help areas avoid
sanctions and/or Federal implementation plans that could result
from failure to meet SIP submittal requirements.
Thus, marginal areas that request extensions under section
181(a) (5) should document that they have initiated rule
development activities in order to meet the Act’s requirements
associated with the new classification. The following are
examples of such activities, but States should not necessarily
limit themselves to these:
1. Documentation that the State has planned or begun the
necessary monitoring activities to develop information for the
modeling analysis that will be required forthe new
class if ication.
2. For certain control measures such as
inspection/maintenance, documentation that the State has examined
its legislative authority and regulatory procedures to determine
whether or not it can quickly adopt and implement the emissions
cont ro1s needed to meet the new attainment date.
3. A plan to meet the SIP submittals and attainment date
required by the higher classification.
The EPA is interpreting the requirement that the State is
complying with the commitments and requirements in the applicable
implementation plan, as referenced in section 181(a) (5) of the
Act pertaining to extensions, to mean that the State is
implementing the EPA-approved SIP [ see section 302(q)]. Thus, in
any request, the States must also certify that they are
implementing the EPA-approved SIP.
Rural Transport Areas
In the November 6, 1991 designations and classifications
final rule (57 FR 56694), a number of areas were designated rural
transport. Under section 182(h) of the Act, RTA’s are treated as
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.02/03/94 09:19 919 541 0824 AQMD RTP •... OGC ! jO05/0O6
4
meeting section 182 requirements if they make the submissions
required of marginal areas in section 182(a) of the Act. The
provisions for bump ups in section 181(b) (2) and extension
requests in section 181(a) (5) are applicable to any RTA that
fails to meet its attainment date. Thus, RTA’s that are bumped
up will be subject to the attainment date for the higher
classification, but will be subject only to the SIP submittal
requirements for marginal areas. However, if the characteristics
of an area drastically change, the Administrator has the
discretion to revise an area’s treatment as an RTA, and if that
occurs, the area will be subject to the new SIP requirements
associated with that classification.
Air Quality Data
States that have marginal ozone nonattairnnent areas have
been asked to submit to the EPA Regions their ozone air quality
data on an accelerated time schedule. (Please refer to the
memorandum entitled, “Accelerated Reporting of 1993 Ozone
Monitoring Data in Marginal Nonattainment Areas” dated
December 21, 1993 from D. Kent Berry and Robert Kellam which
describes the requirements for submission of air quality data on
an accelerate4 schedule.) Early reporting of data will enable
EPA to make attainment and bump up decisions in a tiineframe
consistent with the Act. It will also alert the State and EPA to
the need to begin developing and adopting the additional measures
for the appropriate higher classification.
SUBMITTAL AND PROCESSI
State requests for a 1—year attainment date extension or
voluntary bump up, as appropriate, should be made coinciding with
the submittal of the air quality data. Requests for extensions
of the attainment date should be submitted as soon as possible in
order to avoid confusion and allow EPA to expeditiously process
the extension requests at the same time the bump up decisions are
made.
When requesting an extension, the following materials must
be included in the submittal:
1. letter from the Governor or the Governor’s designee
requesting a 1—year extension of the attainment date;
2. certification that only one or fewer measured
exceedances of the ozone standard occur ed at any valid site in
the nonattaininent area in 1993, supported by the final, complete
quality-assured 1993 ozone monitoring data;
3. certification that the State is implementing the EPA—
approved SIP; and
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• 02 ’03/94 09:20 U919 541 0824 AQMD RTP -... 0CC I j006/006
5
4. documentation that the State has initiated rule
development activities associated with the moderate
classification.
Upon submittal of these extension requests, the EPA Regional
Office will be responsible for review and evaluation to determine
if all of the elements described above are included. The
Regional Office will also be responsible for making the initial
determination on the extension request.
Bump ups and extension determinations must go through notice
and comment rulemaking. Consequently, bump up decisions and
attainment date extensions will be published in the Federa) ,
Reaister . O ur intent is to publish the bump up determinations
and attainment date extension requests in a national notice to be
signed by the Administrator and to process it as a direct final
rulemaking. -
If you have any questions on bump ups or attainment date
extension requests, please contact either Sharon Reinders
(919/541—5284) or Denise Gerth (919/541—5550) of my staff.
cc: Alan Eckert
Bill Becker
-------
. itO Sr .,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina 27711
AUG 2 6 1994
MEMORANDUM
SUBJECT: Nonattainment Area Attainment Determinations, “Bump
Ups,” and Attainment Date Extension Requests --
Initiation of Delegation Proced l Guidance
FROM: John S. Seitz, Director
Off ice of Air Quality P1, n g and Standards (MD-b)
TO: Director, Air, Pesticides and Toxics
Management Division, Regions I and IV
Director, Air and Waste Management Division,
Region II
Director, Air, Radiation and Toxics Division,
Region III
Director, Air and Radiation Division
Region V
Director, Air, Pesticides and Toxics Division,
Region VI
Director, Air and Toxics Division,
Regions VII, VIII, IX, and X
Purpose
The purpose of this memorandum is to advise you that a
delegation is being prepared which will authorize the RA’s to:
1) make attainment determinations, 2) make bump up
determinations, and 3) approve attainment date extensions for
ozone, CO, and PM—lO under title I of the Act. In addition, this
memorandum provides procedural guidance relevant to the required
upcoming marginal ozone nonattainment area determinations.
Specifically, the Regions will be publishing notice—and-comment
rulemaking on the bump up determinations and attainment date
extensions. Regions will also be making attainment
determinations, but will not need to publish these through
notice—and-comment rulemaking.
Background
The Act addresses attainment and bump up determinations in
three places: section 181(b) (2) for ozone, section 186(b) (2) for
CO, and section 188(b) (2) for PM-b. Section 181(b) (2) refers to
ozone marginal, moderate, and serious areas; and sections
186(b) (2) and 188(b) (2) are applicable to CO and PM—b moderate
areas. These provisions state that within 6 months following the
-------
2
applicable attainment date, the Administrator shall determine
whether the areas achieved the NAAQS by that date. For areas
that have not attained the standard, the Act mandates that they
shall be reclassified upward by operation of law. The Act
further requires the Administrator to publish a notice in the FR
identifying the areas not attaining the standard.
Sections 181(a) (5), ].86(a)(4), and 188(d) of the Act give
the Administrator the discretion to grant up to two 1—year
extensions of the attainment date for ozone, CO , and PM-b,
respectively. Extensions of the attainment dates can be approved
if States have complied with all requirements and commitments
pertaining to the area in the applicable State implementation
plan. Additionally, the Act requires that no more than one
exceedance of the NAAQS can occur in the year preceding the
extension for ozone and CO. Further, section 188(d) of the Act
states that no more than one exceédance of the 24—hour NAAQS for
PM-b can occur in the area in the year preceding the extension,
and the annual mean concentration of PM—1O in the area for such
year must be less than or equal to the standard level.
Delegation of Authority
As you know, one of the OAQPS’ “blue skies” initiatives
involves a streamlining approach in meeting title I requirements.
This approach consists of shifting responsibilities from
Headquarters to the RO’s, State and local agencies, and other
constituents, as appropriate. At recent long—range planning
discussions, the air quality management group recommended that
bump ups undergo the streamlining process (i.e., delegate the
authority under the Act to the RA’s). I fully support the
recommendation and have advised my staff to prepare a delegation
authorizing the RA’s to make the attainment determinations and
the bump up determinations, and approve attainment date
extensions for ozone, CO, and PM—b nonattainment areas.
With delegations of authority, I feel that it is still
important to emphasize the need for national consistency on
Agency decisions. If we appear to be making decisions which are
inconsistent from Region to Region, it is likely that the number
of lawsuits filed against the Agency will increase. To avoid
this, I believe that the RO’s should discuss proposed activities
which could affect national policies with other Regions and their
Headquarters counterparts. This will ensure more consistent
decisions, thereby causing fewer “headaches” in the end. The
OAQPS staff are available to provide technical and/or policy
guidance to the RO’s, as needed.
The delegation approval process can take from 6 to 8 weeks
from the time the Assistant Administrator for Air and Radiation
submits it to the Office of Administration and Resources
-------
3
Management. When the Administrator approves the delegation, we
will let you know so that you can move forward with your actions.
Attainment Determinations
On February 3, 1994, a memorandum was issued from D. Kent
Berry, Acting Director, Air Quality Management Division, entitled
“Procedures for Processing Bump Ups and Extension Requests for
Marginal Ozone Nonattainment Areas.” Since issuance of that
memorandum, OGC has informed us that the attainment
determinations required under sections 181(b) (2), 186(b) (2), and
188(b) (2) must also go through notice-and-comment rulemaking.
However, they have also advised us that we can meet this
requirement by proposing and taking final action on the method by
which EPA determines if States have clean air (i.e., based on
final, complete, quality-assured AIRS data). Taking action on
the method to determine an area’s air quality would negate the
need to make area—specific attainment determinations via notice
and comment by the RO’s.
Region III has, therefore, agreed to include general
language in their bump up FR notice identifying the method by
which EPA determines if States have clean air. The inclusion of
this method in their document will fulfill the notice-and-comment
requirement for all Regions for any other ozone, CO, and PM—b
attainment determinations. Consequently, other Regions will not
have to announce that specific areas are meeting the NAAQS for
ozone, CO, and PM-b and/or the method by which those
determinations are made.
Regions will, however, have to publish FR notices on bump
ups and/or extensions of the attainment date. Guidance on these
activities was included in the February 3, 1994 memorandum
referenced above. Boilerplate FR notices are available. These
are discussed below. Although it is not required, Regions can
inform their States of the attainment determinations by letter or
FR informational notice. At a minimum, I encourage you to follow
up with a letter to your States.
Ozone Marginal Areas
To assist the Regions, a boilerplate FR notice specific to
marginal ozone bump ups and attainment date extensions, and a
model letter to the States discussing attainment determinations
was developed by OGC in cases where the Regions want to send such
an informational letter on attainment determinations. Regions do
not need to either send a letter or go notice-and-comment
rulemaking on attainment determinations. Regions do need to
publish rulemakings on bump ups and on extensions of the
attainment date.
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4
The documents, entitled Bumpup.fr and Buinpup.ltr, have been
placed on the MAPS under the general subdirectory of information
transfer. Since the November 15, 1993 attainment date for
marginal areas has passed, you should begin preparing the FR
notices and any accompanying technical support documents in order
to have them finalized when the delegation of authority is
approved by the Administrator. In most cases, I think these
actions could be processed via the direct final rulemaking
process because of their noncontroversial nature.
If you have any questions on this subject matter, please
contact Tom Helms at (919) 541-5527, or Denise Gerth at (919)
541—5550.
cc: Air Branch Chief, Regions I-X
Bump Up Work Group
Steve Hitte
-------
F. ECO, TCMs arid VMT
-------
F. Employee Commute Options (ECO). Transportation Control
Measures (T Ms) and Vehicle Miles Travelled (VMT )
F.1. Employee Commute Options Guidance -- December 1992
F.2. Parking Cash Out and Employer Trip Reduction Programs --
Apr. 6, 1994 memo from David Gardiner
F.3. Clean Air Act Employee Commute Options (ECO) Program - -
June 10, 1994 letter from Carol M. Browner
F.4. Responses to Questions Submitted for the Record by J. Dennis
Hastert, Subcommittee on Oversight and Investigations - - June 22,
1994 hearing
F.5. Approval and Promulgation of an Implementation Plan for
Vehicle Miles Traveled; Indiana (Proposed Rule) 59 FR 54866
(Nov. 2, 1994)
F.6. Employee Commute Options Program (ECO) - - Jan. 27, 1995
letter from Mary D. Nichols
F.7. Follow-up Questions to the February 15 Senate and
Environment Public Works Committee Hearing - - February 1995
F.8. Employee Commute Options (ECO) Questions and Answers - -
Mar. 23, 1995
F.9. Report of the ECO Flexibilities Work Group Clean Air Act
Advisory Committee, Subcommittee on Linking Transportation,
Energy and Air Quality -- Apr. 21, 1995
F.10. Letter to Congressman Greewood from Jean C. Nelson - -
May 17, 1995
-------
United States
Environmental Pmtection
Agency
Office of Air and Radiation
(ANR-443)
Washington, DC 20460
EPA
Employee
Guidance
Commute
Options
December 1992
F’
-------
1.0 Introduction
The Clean Air Act P mendments of 1990 (CAAA) require severe and
extreme ozone nonattainment areas and serious carbon monoxide
nonattainment areas to establish programs aimed at reducing
commute trips to the worksites of large employers. The concerns
that lead to the inclusion of this Employee Commute Options (ECO)
provision in the Act are that more people are driving than ever
before and they are driving longer distances. Traffic
congestion has increased significantly as a result. Moreover,
the increase in congestion exacerbates the emissions impact of
the increased number of vehicle miles traveled.
The increase in drivers and the increase in the number of miles
traveled currently offset a large part of the emissions
reductions achieved through the production and sale of vehicles
that operate more cleanly. It is widely accepted that shortly
after the year 2000, the increased emissions caused by more
vehicles being driven more miles under more congested conditions
will outweigh the fact that each new vehicle pollutes less,
resulting in an increase in emissions from mobile sources. The
legislative history of the employer trip reduction provision
includes the following statement:
“If we are ever to reduce or even simply avoid increases in
vehicle pollution, it is not enough to control only the
pollution which each car emits. The use of the car must be
examined as well because the growth in vehicle-miles
1
-------
traveled threatens to overwhelm what can be achieved through
even the toughest tailpipe standards. ... (The provision
is] intended to reduce future growth of vehicles miles
traveled, but at the same time provide enhanced mobility to
serve ever increasing travel demands.”
The first trip reduction programs in the country were designed to
reduce congestion. Since 1982, approximately 55 Trip Reduction
Ordinances (TRO) have been enacted in the United States. One
such program was established in the City of Pleasanton,
California. Established in October 1984, this TRO was designed
to reduce peak hour traffic by 45%. As air pollution became more
of an issue in some areas, TRO’s were implemented to improve air
quality not only traffic congestion. In July of 1988, the South
Coast Air Quality Management District in California passed
Regulation Xv designed to reduce emissions from vehicles
operating between 6:00 am and 10:00 ant on weekdays. Three
Average Vehicle Ridership (AVR) targets, based on location within
the District were designed to result in approximately a 25%
increase in average vehicle ridership in the Los Angeles, San
Bernardino, Orange and Riverside Counties. The term Average
Vehicle Ridership is comparable to the term average vehicle
occupancy (AVO), as used below in this guidance.
2.0 The Purpose of This Guidance
The purpose of this guidance is to inform the affected State and
local jurisdictions of the Clean Air Act requirement, to provide
guidance on preparing an approvable State Implementation Plan
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(SIP) revision, and to discuss various approaches which may help
•areas achieve Clean Air Act targets through implementation
strategies that are the least burdensome and costly to both
affected employers and employees.
This guidance is intended to assist States in developing
approvable SIP revisions, but does not establish or affect legal
rights or obligations. It does not establish a binding norm and
it is not finally determinative of the issues addressed. EPA
approval of any particular SIP revision will be made by applying
the applicable law to the specific provisions in the SIP.
This guidance was initially to be included in the General
Preamble to Title I of the Clean Air Act [ 57 FR 13498, 2 .pril 16,
1992]. As a part of the preparation of that document, this
guidance went through an informal comment period which included a
public meeting held June 25-26, 1991 in Reston, Virginia. An
announcement of this public meeting was published in the Federal
Register. In addition, several drafts of the guidance were sent
to a wide spectrum of interested parties for comment including a
review panel for The National Association of Regional Councils.
Subsequently, it was decided that this guidance would be
published separately from the General Preamble.
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3.0 The Clean Air Act Requirement
Section 182(d) (1) (B) requires that States with severe, and extreme
ozone nonattainment areas shall submit a SIP revision requiring
employers with 100 or more employees in such areas to implement
programs to reduce work related vehicle trips and miles traveled
by employees. At a minimum, the SIP revision shall require that
each employer increase its average passenger occupancy per
vehicle (APO) in commuting trips between home and the workplace
during peak travel periods “by” (or in EPA’S interpretation of
the intended meaning, tt$ 0 a level”) not less than 25% above the
average vehicle occupancy (AVO) for all such trips in the
nonattainment area at the time the SIP revision is submitted.
(The AVO refers to the baseline for the nonattairunent area or for
a zone within the nonattainment area if it is divided into zones.
The PO applies to employers.) The SIP’ revision shall be
submitted no later than November 15, 1992. The revision shall
require that within 2 years after the date the SIP revision is
submitted, employers must submit compliance plans that
convincingly demonstrate that compliance will be achieved no
later than four years after the SIP revision is submitted.
Section 187 (b) (2) requires that States with serious CO
nonattainment areas also adopt such programs.
EPA interprets Section 182(d) (1) (B) of the Act to mean that each
State with a severe or extreme ozone nonattainment area or a
serious carbon monoxide nonattainment area will establish a
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process of compliance plan submission, approval, periodic
reporting on target achievement, and periodic compliance plan
revision that aims at the required target.
Areas that have trip reduction programs in effect, either
mandatory or voluntary, that are anticipated to produce
significant increases in the area AVO in the short term have
expressed concern that establishing 1992 as the base year will
penalize them and will discourage employers from cooperating with
current programs. Where such programs are fully implemented and
meet all requirements for an approvable SIP under Sections 110
and 182 ‘of the CAAA, the areas may, if they have not already,
make a complete SIP submittal and receive full EPA approval. By
electing to use an earlier SIP submittal, such areas will be able
to recognize the AVO increases resulting from the ongoing efforts
of their program.
States with marginal, moderate, or serious ozonenonattainment
areas or with moderate Co nonattainment areas are not required to
implement an employer trip reduction program as outlined in
Section Cd) (1) (8). They may, however, elect to implement such a
program and to follow this guidance. Reductions in emissions
from the ECO program in such areas may receive SIP credit toward
required emission reduction demonstrations, provided that certain
• criteria relating to quantification, permanence, and
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enforceability of credits are satisfied. Emission reduction
estimation techniques will be addressed in a separate guidance.
4.0 Definitions
Definitions of several terms are not provided in the Act itself
but are needed to establish the parameters of employee commute
options programs. States developing ECO SIP submissions may use
the following interpretive definitions or may document that
alternative definitions are more appropriate.
“Peak travel periods” refers .to the those hours between which the
morning commute occurs Monday through Friday. EPA believes that
the intent of the Act is to significantly reduce single occupancy
vehicle commute trips to and from work and has defined the peak
travel periods to include either the hours between 6:00 a.m. and
10:00 a.m. or any other period which captures 85% of commute
trips between 5:00 a.xn. and 11:00 a.m. as determined by the
State.
“Work-related trips” and “commuting trips between home and the
workplace” include trips with stops en route to work during the
peak travel periods.
“Vehicle” refers to a highway vehicle powered by a gasoline or
diesel internal combustion engine with fewer thaI nine seating
positions for adults. States may propose, in their SIP
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submissions, factors to be applied to the vehicle count which
would reflect the lower emission levels from alternatively fueled
vehicles if they are certified by a government authority as being
substantially lower emitting in actual use than vehicles
generally purchased in the area. EPA will work directly with
interested States on the development of such factors.
Although the statutory language does not explicitly allow
alternatively fueled vehicles to receive less than the full count
of a regular gasoline or diesel fueled vehicle, it is clearly the
intent of the Act as a whole to promote technologies that reduce
emissions. Therefore, EPA feels that certain alternatively
fueled vehicles known to be lower emitting in actual use than
other vehicles arriving at the worksite, may be exempted from
counting as a full vehicle.
“Employee” means any person employed by a firm, person(s),
business, educational institution, non-profit agency or
corporation, government department or agency or other entity, in
a full-time or part-time position who either reports to work or
is assigned primarily to a worksite 80 or more hours per 28:day
period in either a permanent or temporary capacity, on either a
contract or employed basis, excluding volunteers. States may set
up a de minimis level for “temporary capacity,” for example, a
period of one month or less or a different period that is equally
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appropriate as applied to the area’s employment practices and
ambient air quality conditions.
“Employer” means any person(s), firm, business, educational
institution, government department or agency, non-profit agency
or corporation, or other entity which’employs 100 or more persons
at a single worksite. Only such worksites are subject to the
trip reduction requirement; smaller worksites of the same
employer are not subject to the trip reduction requirement.
Several subsidiaries or units that occupy the same workaite and
report to one common governing board or governing entity, are
considered to be one employer.
EPA interprets that it was Congress’ intent to target employers
who have enough employees arriving in the peak period to
establish a viable ECO program. Congress selected a threshold of
100 total employees, presumably with an awareness that for the
many employers near this threshold there would-be fewer than 100
employees arriving during the peak period itself since some
employees will work other schedules. However, there is no
indication that Congress meant the 100 employee criterion to be
applied rigidly in situations in which the majority of an
employer’s workforce follows a non-standard schedule, and the
number of employees arriving in the peak period is both small
enough to be consideredde minimis and small enough to make
ridesharing and special employer-provided services difficult. An
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employer of 100 workers split evenly between three shifts would
have about 33 employees arriving during the peak period. It is
EPA’s judgment that fewer than 33 employees who report to work
during the peak travel period do not constitute enough employees
commuting at that time for an employer to implement a viable trip
reduction program and that such a situation is de minimis.
Therefore, a de minimis exemption may be made at the State’s
option whereby employers with worksites at which fewer than 33
employees report to work during the peak travel period are not
subject to the requirements. -
Except provided for in the immediately preceding paragraph, in
determining the number of its employees, an employer includes all
employees from all shifts, seven days a week, not only those who
commute during the peak travel period for that worksite. The
number of employees an employer has is determined as the number
of employees on the payroll (excluding temporary employees whose
term of employment was below the de minimis threshold as averaged
over a year-long period).
“Worksite” means a building, or grouping of buildings located
within the same nonattainment area, or in the same AVO zone of
the nonattainment area if it is divided into AVO zones, which are
in actual physical contact or separated only by a private or
public roadway or other private or public right-of-way, and which
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are owned or operated by the same employer or by employers under
common control as described under the employer definition.
5.0 SIP Submittal
5.1 Introduction
The Act requires that States submit an ECO SIP revision not later
than November 15, 1992. The ECO SIP needs to include the
following:
• the AVO for the nonattainment area or for each zone if
the area is divided into zones,
• the target 2 PO which must be no less than 25% above the
AVO(s),
• a process for compliance demonstration, and
• enforcement procedures to ensure submission and
implementation of compliance plans by subject
employers.
5.2 AVO Calculation
The baseline AVO may be estimated by simply dividing the number
of employees who report to worksites or other related activity
centers between the peak period inclusive Monday through Friday
by the number of vehicles in which these employees report over
that five-day period. A telephone survey, employer administered
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survey, and/or available census data may be used to determine the
AVO. Statistical sampling is acceptable.
If a survey is used to estimate the AVO, it should cover a
typical five-consecutive-weekday period, excluding any holidays,
and should occur during a time without holidays bordering the
weekend on either side of the selected week. For example, the
week before Labor Day weekend should not be considered’a typical
week. If the ECO program specifies a season for determining
employer APO (see below) the AVO should be determined so as to
include the same season.
The Act states that the AVO applies to all commuting trips
between home and the workplace during the peak travel period.
Therefore, all commuters including those who work for employers
with less than 100 employees and who commute during the peak
travel periods must be included in this estimation.
The Act states that the AVO is for “such trips in the area at the
time the [ SIP] revision is submitted.” The AVO may be estimated
prior to the SIP submittal so long as the estimation includes a
projection of the estimated AVO for the time the SIP revision is
submitted. EPA interprets the time of SIP submittal to encompass
a period up to a year prior to the date of SIP submittal.
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Each State or local jurisdiction calculating the AVO for its
nonattainment areas should work in close cooperation with local
governments as outlined in Section 174 of the Clean Air Act.
Each State or other lead agency will also decide whether
nonattainment areas will be subdivided into AVO zones and how
such determinations will be made. The AVO and target APO for
each area and zone will .be included in the SIP revision due
November 15, 1992.
5.3 PO Calculation
The target APO for employers is not less than 25% above the AVO.
The APO for each employer with 100 or more employees may be
calculated as the number of employees reporting to the worksite
during the peak travel periods inclusive Monday through Friday
divided by the sum of the number of vehicles in which employees
report during those peak travel period plus or minus any APO
credits.
APO = # employees reporting to worksite during peak period
# vehicles in which employees report ± APO credits
This guidance allows States to provide for vehicles that are
lower emitting than those generally purchased in the area to
count as a percentage of a vehicle, as a measure to help make
this program more cost effective without compromising the
statutory requirement.
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Average vehicle occupancy and employer APO compliance may be
determined during the ozone season that occurs during the summer
months in cold climate regions, or on a year-round basis at the
State’s option. States may choose, for example, to have all
employer compliance surveys conducted during the summer for areas
where swnmer is the only ozone season, or may allow such surveys
to be distributed throughout the year. In the latter case,
although one employer may submit its plan at a different time of
year than another employer, each employer would be on a 12 month
or 24 month plan submittal cycle. This would allow employers to
have their compliance reports and next-cycle plans due at the
same time of year each year their plans are due.
5.4 Compliance Demonstration Process
State or local law must establish ECO requirements for employers
with 100 or more employees at a worksite within severe and
extreme ozone nonattainment areas and serious carbon monoxide
areas. Automatic coverage of those employers should be included
in the law. In addition, States should develop procedures for
notifying employers regarding the ECO requirements.
Finally, States and/or local laws must require that initial
compliance plans “convincingly demonstrate” prospective
compliance. Approval of the SIP component addressing the ECO
provision will depend on the ability of the State/local
regulations to ensure that the CAAA requirement that initial
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compliance plans “convincingly demonstrate” compliance will be
met. This demonstration can take on any of four forms or any
combination of these.
One option is for the State to include in the SIP evidence that
agency resources are available for the effective plan-by-plan
review of employer-selected measures to ensure the high quality
of compliance plans, and that plans that are not convincing will
be rejected.
A second option is for the regulations in the SIP to contain a
convincing minimum set of measures that all employers must
implement. These measures will be subject to review and approval
by EPA as adequate when the SIP is processed.
A third option is for the regulations in the SIP to provide that
failure by the employer to meet the target P&O will result in
implementation of a regulation-specified, multi-measure
contingency plan. This plan will be reviewed by EPA as for
adequacy when the SIP is processed.
A fourth option is for the regulations in the SIP to include for
employers who fail to meet the target APO financial penalties
and/or compliance incentives that are large enough to result in a
significant prospective incentive for the employer to design and
implement an effective initial compliance plan of its own.
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In addition, States and locaL jurisdictions need to include in
their ECO regulations penalties and/or compliance incentives for
an employer who fails to submit a compliance plan or an employer
who fails to implement an approved compliance plan according to
the compliance plan’s implementation schedule. Penalties should
be severe enough to provide an adequate incentive for employers
to comply and no less than the expected cost of compliance.
5.5 Implementation J pproaches
It is very important that State and local jurisdictions design a
system that achieves local goals in the lowest cost manner. EPA
has based much of the previous discussion on the program in
Southern California, but it encourages States and local
jurisdictions to seek innovative methods which may produce lower
cost results. The averaging, trading and banking options,
discussed in section 5.7, have not been used in California during
the first years of the program, but are examples of features
which may lower the overall cost of compliance.
5.6 AVO Zones
Where there are important differences in terms of commute
patterns, land use, or AVO, the States may establish different
zones for the calculation of AVO.
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5.7 Averaging, Banking and Trading
EPA believes that States or local governments may wish to allow
employers in the same nonattainment area to aggregate APO credits
through averaging, banking and trading as discussed below.
Section 182(d) (1) (B) can be interpreted to allow aggregation of
APO credits among employers so long as each employer increases
average passenger occupancy per vehicle to a level not less than
25% above the AVO, considering any trading. The statutory
language merely requires each employer to increase MO, and does
not specify that the required increase in APO must come from a
given employer’s own employees. Consequently, the statutory
phrase “commuting trips between home and the workplace” can be
interpreted to refer to the trips by any employees in the area
rather than only the employees of a specific employer. Any State
or local jurisdiction that elects trading and banking options
must ensure that an effective tracking system is implemented and
maintained to ensure the integrity of such a credit system.
Programs that incorporate provisions to allow averaging or
trading of emissions generally lower the cost of achieving given
emission reduction targets by shifting the emissions reductions
to the sources that can reduce emissions the most efficiently.
Averaging: An employer with more than one worksite in a
nonattainment area may average its P20 across those worksites in
the nonattainment area. If the nonattainment area is divided
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into zones, the employer may only average those worksites within
each zone (unless as described below average commute miles values
for each worksite are applied in banking or a trade). The
average APO is calculated by adding all of the employees at all
of the worksites in the numerator and dividing by all of the
vehicles in which these employees report to the worksites. If
averaging across worksites is allowed, each compliance plan
should still be worksite specific.
APO Credit: In, order to implement trading or banking in an ECO
program, the State will need to create a unit of APO credit that
can be banked or traded and can be used to meet the APO targets.
Employers can readily calculate the maximum number of vehicles
that may arrive at their worksite by dividing the number of their
employees arriving at the works ite during the peak period by the
target APO. In their simplest form, APO credits available for
averaging, banking or trading would be based on the number of
vehicles below the maximum allowed in order to meet the target
APO. If credits are defined so simply, the ECO regulations must
have some provisions, for example case by case review of proposed
trades or objective criteria for determining which employers may
trade with each other, to ensure that trades result in
substantially the same reduction in vehicle use and emissions as
if the trade had not occurred. Alternatively, States may include
in their definition of their APO credits a factor for the average
commute miles of an employer’s employees. An employer could
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establish standard distances from each worksite based on zip
codes, and from these establish the roundtrip commute distance
for each employee.
When an employer exceeds the target APO, the employer has managed
to have fewer vehicles arrive at the worksite than the maximum
allowed to meet the target APO. Multiplying the number of
vehicles that could have arrived at the worksite but did not by
the average commute mile8 of the employees results in vehicle
mile credits that an employer may bank or trade. Vehicle mile
credits are APO credits that take into account the distance
commuted to work by an employer’s employees.
For example, assume Employer A had 20 fewer vehicles arriving at
the worksite than were allowed in order to meet the target APO.
The average commute miles for employer A’s employees is 10 miles.
Employer A would have 200 vehicle mile credits available to bank
or trade. Employer B has exceeded the number of vehicles that
can arrive at the work place by 5. Employer B’s average commute
is 20 miles. Employer B can then purchase 100 vehicle miles
credits from employer A in order to meet the target APO. It
should be noted that an employer who does not bank or trade
credits to demonstrate compliance is not required to consider the
distances traveled by its own employees.
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The State or local government law may allow employers to bank 2 PO
credits to be applied to future compliance demonstrations. It is
EPA’S position that in terms of public health benefits, early
reductions achieved through banking of APO credits offsets later
application of banked credits because as the fleet turns over and
cleaner fuels are employed each vehicle trip generates less
emissions. EPA believes that the use of the banked APO credits
will not materially affect attainment by the required date. EPA
recommends that State and local jurisdictions encourage
banking of APO credits because of the immediate reductions in
emissions that are realized through such a program.
No portion of a nonattainment area can be exempt from employer
requirements as stated in Section 182(d) (1) (B). However, within
a nonattainment area, certain employers may have a measured APO
below the target APO and acquire APO credits to meet the target.
Full documentation of the traded APO credits should be supplied.
Unused APO credits may be traded more than once.
6.0 Costs and Benefits
EPA suggests that States, local jurisdictions and employers
carefully consider the strategies outlined in this guidance to
minimize the costs of complying with ECO targets. The strategies
that can minimize the social costs of ECO include, for example,
the trading of AVO reduction credits and the use of AVO zones
within the nonattainment area. The two main factors to consider
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in determining the net costs of the ECO program are the social
costs of ECO, which is related to the expenditures which
employees .andlor employers must make, and the benefits of the
program. (A detailed explanation of ECO program cost estimation
is included in an attached appendix.)
In estimating the costs of ECO it is important to distinguish
between expenditures and social costs. Employers’ and/or
employees’ expenditures do not equal the total social costs,
- because part of these expenditures are “transfers” of resources
from one party to another. The social costs include the value of
the additional time, effort and inconvenience that commuters
experience when they reduce motor vehicle use with a resulting
increase in their employer’s PO.
A rough estimate of the total direct social cost of the ECO
program for the 11.7 to 13 million employees who work for covered
employers in the ten major nonattainment areas is $1.2 to $1.4
billion per year.’ This estimate is based on evidence that
compensation of $6.17 per day is representative of the cash
incentive employees who forego the use of their single occupancy
1 This range is a function of two variables —— the number of employees
affected, and the current percentage of solo drivers assumed. The $1.2 billion
dollar estimate assumes 11.7 million affected employees based on figures provided
by the nonattainment areas subject to ECO and a 73% drive alone rate based on 1990
Census statistics. ‘The $1.4 billion dollar estimate assumes 13 million affected
employees based on 1986 Census data for the number of employees in the nonattaininent
areas subject to ECO multiplied times 45% (the percent of all workers who work for
employers with more than 100 employees in the Chicago metropolitan area.) The $1.4
billion dollar estimate also assumes a national drive alone rate of 75% based on a
1987 report by the ENO Foundation for Transportation, Inc.
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vehicle would have to receive in order for employers to achieve a
20% reduction in automobile use. This compensation estimate is
derived from studies of commuter choices in downtown Los Angeles.
It is uncertain how closely these represent conditions in the
other affected nonattainment areas. (See complete discussion
and explanation of methodology in Appendix.)
EPA believes that the establishment of ECO programs may yield
important benefits, beyond the obvious one of emission reduction.
ECO programs will reduce the use of single-occupant automobiles
for commuting by employees .working at covered employers,
potentially reducing congestion, fuel use, and commuting time for
all motorists still using the highways during the commute period,
including noncommuters. (The values of changes in congestion,
fuel use, and time for employees who make a switch are reflected
in the estimate of $6.17 per day.) Also, less need for parking
space may release valuable real estate for alternate uses. In
addition, states may use the reductions in emissions in achieving
compliance with their nonattainment areas’ reasonable further
progress and 1/MT offset requirements, thereby avoiding the cost
of other measures which would have been needed.
Extrapolating from recent work by Shoup and Wilson 2 , the value
of commuting time reductions may be estimated to range from
2 Donald C. Shoup and Richard W. Wilson “Commuting, Congestion, and Pollution:
The Employer—Paid Parking Connection” prepared for and presented at the Congestion -
pricing Symposium, May 1992.
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approximately $447 - $511 million dollars annually 3 . This
social cost savings combined with the uncalculated pollution
benefits, at least partially, offsets the $1.2 to $1.4 billion
cost. However, this estimate of time savings is only an
approximation, as the true savings depends on the subjective
value commuters place on time savings, and on the specific
relationships between reduced road volume and time savings on the
many roadways that may be affected. Moreover, additional
uncertainty in estimating time savings (and emission reductions)
arises from the possibility that reduced congestion and shorter
commuting times may lead some employees of non-covered employers
to switch away from transit or car pools back to single-occupant
vehicles. As a result, VMT and commute times stabilize at higher
values than if there had been no such “latent demand” effect (but
still no higher than without the ECO program under any
circumstance).
7.0 Best Practices
Because various trip reduction programs including transportation
demand management (TDM) programs have been in place for almost
ten years, there is some experience to draw on for employers who
are subject to the ECO provision.
Shoup and Willson estimate that each vehicle represents $262 dollars in
congestion—related social costs. The $262 cost per vehicle for each additional car
on the road reflects an increase in: 1) accidents 2) time/cost of congestion 3)
fuel costs. $447 million — 11.7 million (affected workers) x .73 (percent of drive
alone based on 1990 Census) x .20 (percent that need to switch) x $262. $511
million = 13 million (nwnber of employees in nonattainment, areas subject to ECO x
.45) “ .75 (percent of drive alone based on 1987 ENO Foundation report) x .20
(percent that need to switch) x $262.
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There are a number of factors that are conunonly found at
companies with successful programs. These include:
• Support of both upper and middle management
• Appointment of a qualified and committed employee
transportation coordinator (ETC)
• Effective market research on the commute patterns of
employees and transportation options available to
employees
• Selection of an appropriate and effective set of
measures including incentives and disincentives to
encourage employees to select non drive-alone modes.
There are many considerations to take into account when an
employer selects measures to put into a compliance plan. Key
among these include: the availability of parking, the cost of
parking, and the availability of mass transit. Of course each
worksite is unique and an effective program is designed to meet
the needs of employees at each particular worksite.
Some examples of measures employers may include in compliance
plans are listed below. This list is not all-inclusive and the
measures are not required per se.
1) Offer cash incentives
2) Cashing out parking 4
An employer offers to provide a cash allowance to an employee equivalent to
the parking subsidy that the employer would otherwise pay to provide the employee
with a parking space.
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3) Institute compressed work weeks
4) Charge those who drive alone for parking
5) Sponsor and/or subsidize carpools and vanpools
6) Subsidize use of public transit
7) Provide comprehensive rideshare matching service
8) Subsidize mid-day shuttles to local shopping areas
9) Provide company-owned vehicles for ridesharing
10) Offer preferential or subsidized parking for carpools
and vanpoo].s
11) Provide a guarapteed ride home program
12) Improve facilities to promote bicycle use
13) Promote establishment of on-site amenities
14) Offer telecommuting and work-at-home options
In February 1990, the Federal Highway Administration (FHWA)
published the “Evaluation of Travel Demand Management Measures to
Relieve Congestion.” The goal of the study was to determine
whether particular TDM efforts have had a measurable impact on
traffic volumes. In reviewing TDM programs in different regions
of the country, 11 employers were selected for case studies.
Determination of the percent of vehicle trips reduced was used as
the measure of success for each program. Based on this
criterion, several of the employers selected were very successful
in their TDM programs. The study concludes that TDM can reduce
low occupancy vehicle trips to a site and that the degree of
success is directly determined by the specific components of the
TDM program.
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The FHWA study also examined the factors which contributed to
successful programs. Employer size and the density of
development around an employer’s site were not factors which
predicted the success of a company’s efforts. One of the most
powerful indicators of program success was the offering of
transportation allowances or subsidies. Parking also plays a
critical role in influencing commuter behavior. Charging for
parking and/or restricting access to parking provide a
disincentive to solo-driving, but may also result in a cost
reduction or savings to the employer.
The top three employers in FHWA’s study all had restricted
parking and charged for parking. It appears that a very
effective approach is for an employer to implement an appropriate
combination of transportation allowances or subsidies, parking
charges, and parking restrictiona. This approach may be the most
economic for employers as well if the parking charges exceed the
real cost of parking and are applied toward the subsidies given
to employees who use non drive—alone modes. One employer
supplied all employees with a monthly $40 transportation
allowance regardless of how they arrived at work. Parking was
restricted and employees driving alone were charged $40 for
parking although this was above the actual cost of parking to the
employer. The parking revenue was committed to finance direct
subsidies to carpoolers and transit users. Transit users were
given a $15 monthly pass discount and carpoolers were given a
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free parking space, both in addition to the $40 transportation
allowance. By restricting parking and charging for parking,
providing a transportation allowance, and subsidizing high
occupancy modes, this employer succeeded in shifting the drive
alone percentage of its employees from 89% in December 1986 to
54% in January 1988. This is a significant shift in just over a
year’s time.
Among the employers studied in the FHWA study, complete cost data
were available for only four of the eleven sites. The two most
effective programs were the only ones among the top five to have
cost information available. Interestingly, based on the net cost
of the TDM program, both employers came out ahead as a result of
implementing their TDM programs. Clearly, this does not indicate
that all successful ECO programs will result in a negative net
cost to the employer. However, it does demonstrate that there
will likely be some employers among those who implement cost
effective measures to comply with the ECO provision of the Clean
Air Act who do so without enduring an undue economic burden.
Additional information about strategies that employers may use in
implementing the ECO requirements in the Clean Air Act may be
found in the U.S. EPA document, “Transportation Control Measure
Information Documents,” published by the Office of Mobile Sources
in May, 1992.
26
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APPENDIX A
THODOLOGY FOR ROUGH ESTIMATION OF ECO SOCIAL COSTS
The discussion below outlines the derivation of a rough
estimate of the social costs for the ECO program.
A key part of the costs of ECO program is the additional
time, inconvenience and expense that workers who drive to work
would incur if they had to commute by other means. A standard
economic approach to estimating such costs is to assume direct
cash compensation is offered to reduce employee car use for
commuting. Although many employers may achieve ECO goals by
other means, there is no reason to b lieve that these will on
average be more efficient, since none provides the same
- flexibility to workers that they may have under cash
compensation.’ Estimation using direct compensation may use
empirical evidence which shows how commuter mode choice changes
in response to the various costs of commuting. However, it may
also be noted that the Clean Air Act, as interpreted by EPA, does
not make achieving the AVO target enforceable or make employers
begin with particular incentives unless the State chooses to do
so. It is possible, therefore, that not all of the annual costs
estimated above will begin to occur right away. The approach
used here considers the social costs of ECO in two parts; (i) the
costs borne by workers who reduce car use in order to achieve ECO
goals; (ii) the costs incurred for program implementation and
administration.
Co8ts borne by Workers who Reduce Car Use :
The direct compensation that employers must pay employees to
reduce commuting by automobile can be used to measure the social
cost incurred by these employees as they adopt other, less-
preferred means of getting to work. To estimate the direct
compensation necessary to meet the requirement of §182(d) (1) (B)
of the CAAA, empirical evidence can be used to estimate how
commuters choice of travel mode depends on cost. Such evidence
of commuter behavior provides a powerful tool to measure
commuter’s valuation of particular modes;
(empirical data) present real world results where
people have shifted their commuting modes in
response to changes in the monetary costs of
commuting. This method implicitly takes into
account all of the factors relating to the
1 several studies conclude that cash incentives (and/or commute subsidies) are
one of the most powerful indicators of the success of employer trip reduction
programs. (See: Cambridge Systematic, Inc., “Effects of Demand Management and Land
Use on Traffic Congestion: Literature Review”, December 1991, page 93. Prepared
for JSDOT, contract number DTFH61—91—C—00085. Also see: Comsis Corporation,
“Evaluation of Travel Demand Management Measures to Relieve Congestion”, February
1990, pages 25—27. Prepared for USDOT, report number FRWA—SA—90—005.)
3.
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advantages and disadvantages of switching from
driving alone to carpooling or public
transportation. t,2
Empirical results on the effect of direct compensation on
commuting mode choice are available from research on the demand
for parking by Shoup and Wilison (1992) . They used a
multinomial logit analysis of commuting among office—workers in
downtown Los Angeles and found that workers who had to buy
parking at market prices used 17% fewer cars to commute to work
than did similar workers who received employee paid parking. In
their sample the market value of parking was $4.15 per car per
day in 1986 dollars, or $5.25 in 1992 dollars. 4 Assuming that
the market demand function for parking is linear, compensation of
$6.17 per car per day would be needed to achieve the §182(d) goal
of a 20% reduction in vehicle use. 5
This estimate of direct compensation costs must be applied
across the whole population of affected workers. 6 There are two
ways to estimate the number of affected employees. One approach
is based on figures provided by the nonattainment areas subject
to the ECO program resulting in an estimate of 11.7 million
affected employees. The second estimate is derived by taking the
total number of employees in the affected nonattainment areas
based on 1986 Census data and multiplying it by 45%, which is the
estimated percentage of employees at affected employers in the
Chicago metropolitan area. The second approach results in an
estimate of 13 million affected employees.
2 B. Galef, E. Chu, T. Bansal, ICF Inc. Memorandum to Tern Wilsie, EPA. May
5, 1992.
D. Shoup and R. Willson, “Employer—paid Parking; The Problem and Proposed
Solutions”, Transportation Quarterly, June 1992.
Using the CPI for 1986 of 110, and for 1992 of 140, the average parking
price in ‘92 dollars = $4.15 x (140/110) = $5.25.
The assumption of linearity is a first—order approximation of general
parking demand that is valid for small changes in price, We thus extrapolate to get
the price needed to induce a 20% reduction in automobile use: $5.25 x (20%/17%)
$6.17.
6 The compensation estimate of $6.17 derived from Los Angeles commuters may
or may not be representative of other ECO cities. On the one hand, since Los
Angeles is one of the least compact ECO cities, we could expect that opportunities
for carpooling or mass transit would be more limited than in other ECO areas. In
this case, the $6.17 would be an overestimate of the compensation needed to reduce
commuting car use by 20% in other ECO cities. On the other hand, Shoup and
Willson’s data are from office workers in the central business district of Los
Angeles. For these workers in this particular areas, the opportunities for
arranging carpools or using mass transit may be greater than for the rest of the Los
Angeles nonattainment area. Thus the estimate of $6.17 would be too low for the
whole Los Angeles nonattaininent area. Given such offsetting effects and the lack
of other comparable data, we believe it is reasonable to rely on Shoup and Willson
to generalize across the other ECO cities.
2
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The next step is to determine the number of solo drivers
among the affected employees. Based on 1990 Census data, 73% of
the population drive to work alone. Based on a 1987 Eno
Foundation report, an estimate of the number of employees driving
alone would be 75% of the affected commuters. 7 Compensating 20%
of this group to switch to non-solo driving commuting would
require expenditures ranging from $2.7 to $3.1 billion. 8
The social cost of this direct compensation must be
calculated by netting out transfers. The amount of the transfers
depends on both marginal income tax rates and the characteristics
of the demand curve for automobile use for commuting. Assuming a
marginal tax rate of 25%, the additional amount of taxes
generated by the compensation payments ranges from $700 million
of the $2.7 billion to $780 million of the $3.1 billion. This is
a transfer to the government and not a social cost. Of the
remaining $2.0 - $2.3 billion, some is a pure gain to employees,
and some represents the cost to those employees who switch modes.
Assuming as a first-order approximation that demand for parking
is linear in the relevant range, the social cost to the workers
who previously commuted by driving alone is $1.0 - $1.2
billion. 9 The assumption of linearity is generally seen as
appropriate; ‘ t the assumption of linear demand is a middle-ground
assumption rather than one that falls at either extreme. ” 1 °
Costs Due to Program Administration :
There are opportunity costs associated with the
administration and implementation of ECO. Every dollar spent on
commuting surveys, plan development, plan coordination, program
ENO Foundation for Transportation, Inc., “Commuting in America”, 1987, p.53.
They report that solo drivers account for 77.3% of metropolitan residents
nationwide.
8$2.7 billion/yr = $6.17/day x 260 working days/yr x 11.7 million workers x
73% (solo drivers) x 20% (switchers). $3.1 billion/yr = $6.17/day x 260 working
days/yr x 13 million workers x 75%(solo drivers) x 20%(switchers).
It is important to point out that employers will have to compensate more than
just the 20% of solo drivers who agree to shift modes. Employees who, pre—ECO, did
not solo drive, will still demand the ECO compensation. These employees can
credibly threaten to put aside their bicycles, carpools or bus passes and resume
solo driving if they are not paid the same compensation as those who agree to stop
solo driving only to help achieve ECO goals. These compensations, however, are
transfers, and not net social costs 1 since these individuals do not have to change
their activities in anyway. The social costs associated with these payments are the
renegotiations of labor contracts that such compensation engenders. Such
renegotiations are potentially costly, but the absence of data prevents any
quantification of such costs.
$1.0 billion = $2.7 billion x 75% x 0.5. $1.2 billion = $3.1 billion v 75%
x 0.5. The social costs to these workers would be higher if the demand curve was
concave to the origin, and lower if convex.
10 ICF Memo, May 5, 1992
3
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monitoring and employees’ time is one dollar of social cost. 1 ’
Preliminary assessments of trip reduction programs suggest annual
administration costs of $3500 per year for a typical firm of 200
employees. This figure averages to about $17.50 per employee per
year, or $200 — $230 million across all covered workers. 12
(These administrative costs at covered firms will also have labor
market distortion affects, with resulting social costs. These
costs are likely to be small and so are not considered in
detail. 13 )
Total Social Cost :
The total social cost of this ECO program are thus estimated
to fall in the range of $1.2 - $1.4 billion per year. 14 This
overview is meant to be illustrative, although parameter
estimates have been used which are consistent with. the data.
This approach provides a reasonable estimate of the social costs
of the ECO, however, States and other responsible parties are
encouraged to improve upon this assessment by making further
refinements. -
• Actual employer ECO requirements will be determined on a State—by—State
basis. However, as is common with State Implementation Plan provision, EPA will
likely compel States to require firms to produce thorough and verifiable baseline
surveys, trip reduction plans, and monitor compliance regularly.
12 The $3500 estimate is derived from estimates of: survey costs of $300 per
year (5 days x 4 hr/day x $15/hr x 1 survey/yr); statistical analysis of survey data
of $400 per year (8 hr x $50/hr x 1 survey/yr); employee familiarization with ECO
of $1600 per year (1/2 hour per employee x 200 employees x $16/hr x 1 time/yr);
staff management of ECO of $1000 per year; and one—time ECO plan development of
$2000 per plan (about $200 per year). Data showing roughly similar or higher levels
of administrative costs comes from surveys of Regulation XV plans by the Chicago
Area Transportation Study (F. Gerald Rawlings letters to kidrew Plusuner, May 20,
1992, and June 12, 1992). One plan they reviewed for a firm’ of 115 employees
reported annual survey costs of $1290, one—time plan preparation costs of $3000, and
annual ECO management costs of $4680 per year. 7 nother firm, with 354 employees,
reported one—time plan preparation costs of $4350.50, and several thousand of
dollars in annual ECO management costs.
13 Firms will endure an increase in the cost of employment for two reasons.
First, the administrative cost of implementing ECO has a component that increases
with employment, and second, the cost of compensating workers who would prefer to
drive to work raises costs above what they would otherwise be. Preliminary
investigations of the magnitudes of theses costs indicate that they are likely to
be low relative to the total costs of ECO.
14 The total social cost equals the tax transfer and the pure gain subtracted
from the expenditures required to switch solo drivers to a non—SOV mode plus the
administrative costs. $1.2 billion = $2.7 billion — $700 million — $1.2 billion +
$200 million. $1.4 billion = $3.1 billion — $780 million — $1.1 billion I- $230
million. -
4
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. O 3ri
I UNITED STATES ENVIRONMENTAL PROTEC11ON AGENCY
WASHINGTON, D.C. 20460
1 ’qL j 1 IIo %.c,’
APR 61994
OFflCE Cf
V. PU 4NG N O EVALUATION
MEMORANDUM
Subject: P king Cash Out and Employer Trip Reduction Programs
From: David Gardü er .
Assistant Administrator
To: AliciaMnrnwll
Assistant Secretary for Economic Policy
Deparlnmnt of the Treasury
This rucnralalKhml outlines EPA’s position on the potential for P* k4ng Cash Out
legislatlo ” to allow for i H f from the cots of Employer Thp Reduction ( fIR ) provisions of the
aesnAfrAct
cash Out can achieve iwnj of ibe environmental and transportation policy goals of ETR
without high adxththstzadve coats to bii m u otrfr 1 of employees’ penzived iigbt to drive to
work . fw. rktogetherto zw bn’xg about meaithrgfrd Cash Out legislation, EPA will
do what it wid.r the law W ,v&ice the t of the ETR prvgr .
I BACKGROUND ON arx
What ETR? Under the Zl’R provisions, ‘ “ipIoycrs of 100 or more wurk are
required torednccthc mm,bcrof caradrivento by n f2()% us
ssod as an in casc in Average Passenger Occupancy (APO) of veMt4 diiv a to w & by
employees by 25% over the pre-exiating y hi ’1&’ occupancy for such tips lithe region as a wh*
Employers most “convindngly d amsuate t ou yl vw will be achieved” In most - by
1996. 1998. 1 icaily, ___demonstration Zequ $ employers to producc a
couy . h niive plan, hire or train a tip rr’fn’iion develop and n nrJe i tives thr
WLI&I 1S to leave their can at as well as al nuiiy 0 n ans of cnh .m.Lztmf conduct regular
surveys to doczmi i t mn. orw travel hihitç and initliffi H wAf1 evaluations of
their efforts . In most states , tim f Thi, 0 of an employer plan to meet its does not lnbi3tlly
tr1gg penalties, but rather plan review and revision to incorporate a litiona1 sm
What Is EPA’s role? Under the ( i an Air Act, each state aff ted by fIR has the
respoibility to develop pIog m It is EPA’s role to review and a wvc such programs as part
P *t dcn FIscy ed Pa r
202 260 0512 04—11—94 0t:35PV P002 :rr
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2
of the State h picinentation Plan (SIP) process. In December of 1992, the Agency released
guidance (jereafter ChlidRnee ) on preparing an approvable SIP revision for E1R) With this
guidance the program was retitled Employee Commute Op ons (ECO). While guidance does not
esiabishIcgalrights obligations, orabinñingnorm, ins used bystatesasamodejon which to
construct a program because it suggests what EPA will or will not readily approve based on its
interpretancar of the law. The ( uidance provides consideTable flexibility to states in the design of
their programs.
Who does ECO affect? II ECO provisions affect 12 million employees of about 28,
ooo myers in severe and extreme Ozone and serious Carbon Monodde Nonairainment areas
in California, Connecticut, Delaware, flihin ’ ; Indi n . Maryland, New Jersey, New York,
Pennsylvania, Texas, and Wiscousm. State and local air quality offithk may adopt ECO in
some less severely poiluted areas to help meet n’ r toty Clean Air Act emission reducuon
deadlines.
What does ECO cost? Independent and government CStim2?I1 of the cost of ECO to
employers range from $70 to $330 per crnployce per year. EPA CSliz ’m .frl the total social cost of
the EC() program to be $1.2 - $1.4 bTh y 2 According to data from Sonthet Caiifomia,
over half of employer expendilmes on ECO arc for nilmnfrtradon T2th r than any type of
incentive o ws that might directly b fit employees. Employers may also face increased
- legal liahiUty for iiv4denrs that Occ rhiviiig the COzrnnufr and prospective union-contract and civil
rights litigmirvi resulting from any 4 n 1 of s wu&kt$ option to drive to work. To date,
e qi . ’ evide has not shown a conelation between d amount spent by employers and the
hup of the program on employee behavior..
i b : t4 u(i) i ;i’ tsI.fl ; (i’1 ai
P” ”g subsidy 1 unn or s other zm of direct incentive is an important
ingredient to suc aful employer trip seduction. Suricys of WV 1 aeroas the country show
that most successful F061.IMI include ftiai 1 incei tives to avoid taking a p ii. .‘g sp , and
that progmnii without n n’ 1 incentive do n produce “ g arit bemfits. Stndi s of
wa c that shift from free pirfring to paid parking or Cash Out report reductions in the imñiI
of ears thivesi to work of 10% - 40%. Recall that ECO typically xcquu s a 20% xeducdàr. An
impo rtant riowa for the co of ECO is that coaveatioiwJ sbutsgies mch as carpool and
pwzpoolprvgiu.v, bntpaaas, giveawqs, etc., wvnateaoagh, iaandofthemrelres,
to get workers onE ofth*o ’& In the most sunc z l eases, pa*ing subsidy rofonn is
packaged with narumcs, nrh as guaranteed ride hcine, Tk ihITlng assistance, sbmdc service
to tr ’ ”t a nd talccornmuting incentives, that ercase more attractive hi n tiyci to driving to
: 5 T i I
‘US EPA, ______________
the program was Employee C i ,s.nni Opflons WOO).
2 Rnployee Cnmmrwe Options ( Inidance . p. 20.
Opfinni flnid ncn December 1992. Whh this guidance
n4_II_Odflt. cpu D 1
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3
work solo.
Without federal Cash Out legislation, however, there is a su ong tax penalty for any
employer who would use this otherwise cost-effective s atcgy. The existing Qualified Park ing
exemption applies only to employer-paid parking, and applies only if no taxable choice is offered
in lieu of parking. The tax penalty extends not only to employees who might choose cash, but to
all parking spa s offcztd in lieu of cash. If, under current law, an employer offered Cash Our,
neither the p Icing nor the cash would be tax-exempt. Thus, current federal law requires
employers to take rerponsi bility for frip reduction but proscribes one very effective action that
employers could take to pn duce real resul without significant costs.
ii S 1 ( ‘ h D1t- I .1 (i) t ,1ii 1th â44JXi r itir.
FOR
PL XIBILTFY IN THi ECO PROGRAM
Passage of Cash Out legi hti m could have a sigiltfiçant impact on the ECO program.
Sonic areas have expressed in est in replacing or augmenting thcfr u& or proposed ECO.
progI ns with Cash Out. Others have pointed out that f5 wn ‘ ATr rng Cash Out could very well
meet their ECO targets without Mitional measures.
It should be nwi clew that pasasge of the Mniiniiratinn’s Cash Out proposal could not,
in and of tpif r p 1 ECO The proposed law would not r uke all ei’ipIr’ycrs a cied by the
ECO provisions of fr 1 n Ak Act to o r Cash Out. The Administration proposal applies the
Cash Out incentive to niployer pzovided parking leased by employees, int4nrfr 5 a phase in
itxi, i i cn 1: . 1 .;h. j n iptions . (Of course, the law would apply Cash Out tO
auplo)eu not affr cted by the ECO r mI ). Bf UI Of I 1...u r4 ap Iw2tlnn ,
n I3 jgfl proposal , in and of its”lç is 1ifr 1y to lend to the required Inercases in APO.
Rowever, the Administration proposal gives all employers the option to offer Cash Out. (Cunt t
law would Impose Ig,ui M pPILl 4 J on any employer who uff Cash Out). And the
proposal would not preclude stetee fi z e ’ ”iing the Cash Out equirern . to a
grea mmiher of employers. Such a program mght go beyond the Mmhii traticm’s proposal by
requizuig Cash c ia greater of employer-provided p.iki..g such as employer-
owncdi . ng in urban and suburban locations. As detailed below, a state law xti ding the
Cash Out - to employers . ff ted by ECO could, in EPA ’s jndgeru . ..;
___a vcndoaal ECO ogtari And an employer that previously uflb 1 only fine___
but now adopta Cash Out could, in EPA ’s judg ment, subst ai1y meet its obligaticas.
How will Cash Out affect ECO baseihies? A basic questiOn is whether EPA would
allow sales and ençloyers to take ue&tfor macsacs in APOinsuithig vi Cash Ou or would
these g iui becon psat of the beaelh from wh psa e i duetkies must be achin ed. EPA
states in its ( nidmw that tim baseline for ECO purposes should be d.t—- ..-.-’d by vehicle
oceupsucy at the tinm tic SIP is sublndfrd to EPA . Since these SIP revisions arc now due, the
berJfr ban been or will shordy be St lWMI in all affected rcgrrs . As such, EPA would allow
gAuI in APO tO fuLii Cash Out legislation to be counted towards E ) targets. In
5—96% 202 260 0512 04—11—94 O1:35PU P004 37
I — I I I’&
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04/11/94 1.4:39 2O2 260 0512 5.IR & ENERGY BR.
4
other words, Cash Out will not rinse tile ECO targets, and states and employers could take
credit under ECO for progress made as a result of Cash Out.
How will Cash Out affe EC ) program requirements? EPA believes that slates an
employers who implement Cash Out can achieve trip reduction at low cost athwithouc
considerable administrative expenditures. But the effeciiveness of any Cash (jut effort will
depend on the specifics of the program, work site specific factors, and regional inark t
cnnrlhinns such as the availability of travel a1n smiives and the price of parking. Th a
program may have different impacts in different geographic areas.
States rcrnnin subject to the basic legal requirements of the ECO provisions of the C .n
Air Act. The state must submit to EPA analysis convin gly demonstrating that its progra
designed to meet the ECO targets. The stare must review the program ensure that target. ut.
indted , mci . A state may find in its own analysis that simply cYtriifling Cash Out to all empioyers
subject to ECO does not produce tim necessary increaacs in regional APO. In such a case, the
state may have to include a minimum dollar anxmnt for Cash Out in order toonnvincingly
dcim nstsatc that its program is designed to meet the ECO ia Slmih ly, indjvidu.ial
employers arc bound by their Stare’s BOO progi n. EmplOytrs may not unilaterally ube±r a
Cash Out program for a statc-m2nd d ECO plan. A state may require, for npIe that -
eumployca’s Cash Out program will be appio ed for BOO purposes automatically only if the cash
o&s exceeds a ynhi mum value arzVor a certain per tagc of employees receive the Cash Out
offer .
BOO programs take in :rr g M EPA’. flt1M2nt provides for four
general categoricar (1) plan-by-plan review of eniplo u selected measmes (2) a set of measures
that all employers “ ‘oat in lemex t (3) a spe if 1 set t nt y as b ____
by employers who do not meet the BOO and (4) finsw!ial pen hb s for eroploycra who do
not meet the BOO t z ts .
- (1) PIan.by-plan vlew Incd by Los Angeles’ ECO progf m , some states am opting for a
sy . n in which each employer is requited to develop a plan to “convincingly dcirx stmatc” that
the employer will meet the sp 1 ECO i . ‘ aupbycr plan is reviewed by the State for
its adequacy aml employers em m thv’41topesiodicnily vey v ’ hW oeczçiancy to verify that
em being met In this i uL anplo us and tes may ask whether EPA__d.’ B a
plan consisting solely of Cash Out to be “convincing States set thek own standaids for what is
convincing, subject to EPA w iew in the SIP. EPA will n,A iltolfll! with a to’s choiea to
apply ,. as “com ,indng”frstqvand employer pian, conai jg ulely a /w i offer of the C...h
Old *lo to employees offered sn sidftid pw*Iag. EPA wWalw encowuge to accept
as ver ion of p’ogr.u employer data collected as a mater of cowu In lospl.menthig Cash
- (2) Set of maasw’es tlmt all emp&yais mmrst Implement. SImiiea show that cmploy rn who
o r the Cash Out option to employees previously receiving only flee pRrking can meet the ECO
202 0 0512 04—11—94 01:35PU ‘
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5
targets without additional acUons. Some states will want to repla their other ECO eff , j
whole or in part, with Cash Out programs. Such efforts aim to produce the required gains in
A ) without imposing the high administrative costs typically associated with ECO. EPA’s
Gnid iice provides for a state program consisting of “a convincing minimum set of nicasuxes that
all (affected] employers must implement., subject to review and approval by EPA.” brar±cts
added ] Some states will choose to vary miith,ium requirements based on work site cnteria.
States must demonstrate in their SIP submittal that any Cash Out program as applied to d ECO
provision would meet the ECO targets, but EPA as predisposed to approve as “convincing” a
s e p,oojwn consisting solely of a requirement that all empioyen affected by ECO offer
Cash Out to employees who are offered subsidized parking.
(3) Contingency plan for failure to meet the target: Some states that choose this fomi of
ECO program will want to use Cash Out as their backstop’ measure should employers fail to meet
the APO targets. EPA Lv predisposed to approve as “adequate” a contingency plan consicaing
of a requirement that all employeri who fail to meet the ECO tairgets or all affected employers
in the region offer Cash Out to employees who are offered subsidized parking.
• (4) Flu.iwi lpenaIttea for failure t m the target: This fonn of program contains
finAncul penalties for affocted enmplo us that fail to meet the APO tw t and/or fall to show
good faith effort Soar stases will want to construe im n’utkvi of Cash Out as tyiifrm of
good faith ort Although atat have discretion to define goodfidih effort, EPA believes
that iaiplem.’ ’on of Cash Out by mu employer as a thong i dfrntio,s of good faith effort.
How will Cash Out affect ECO repui tIng r q’eaian*s? Data frrnn initi!1l ECO
impkmrm km in Southern California show that reporting rcqáemts aecoiwt fir a majority
share portico of ECO costs. While several judadictions have steps to strenm11n.
reporting ‘ tho Costa of c . th1g erupbyce siuvcys, dedicating personnel for ECO
ojecti , and cocupleting ECO pq wskze -n tignifirint Parking Cash Out could result in a
ITnpli d reporting for emplo For czaInplc data collected in a Cash Out
program could be used in lieu of a smvcy to s’tisfy ECO zcporthig requirements.
IV. ADDTTIONAL i ’U
Empirical data show that flnandal inoenlives like Cask Out me inestc c1ive when paired
with ef ts to arata viable travel alternatives. While EPA believes that Cash Out alone has the
pu# inlto u t ECO Imi 1a in sorne cues , best termite will be delivered by pro .
cn’nbiithig Cash Out with regional or ayer-based ridcsbaring aogranas, gn-” .. . d tide
hdIIVV!, tekO*rn ..A .& vuipool servisxs, and maa m it
ee MwyN ls
Wthard i.’-
202 280 0512 04—11—94 O1:35PM P006 )7
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U’Y••• & — — • j r-c...i I —
3P
UNITED STATES ENVIRONMENTAL PROTECTiON AGENCY
_____ WASHINGTON D.C. 20460
4
JUN I 0 I99 ThE DUINJSTR TOR
Honorable Joeeph I. LicbCZ t3.n
trnited States Senate
Washington, D.C. 20510
Dear Senator Liebermaii:
Thank you for your letter of May 31, 1994, co-signed by tvo
of your colleagues, concerning the Clean Air Act employee coite
oT3cions (ECO) program, aizo known as the ençloycr trip reduction
program. I welcome the opportunity to respond to’ your co” nts
about flexibility in program impl mi ’tation, as well as to
clarify the impact of the program on employers, ewp.Loyees and
states. -
As you know the Clean Mr Act calls on many indu tries and
sectors of society to contribute to cleani”g the air across
Mierica. As a result of these canLrThutiona, we are continuing
to see progress in meeting the fundmn ”tal goal of the Act - -
clean and healthy air for all Americans. In relation to
c uting travel, the Act requires large employers in the ten
metropolitan areas with the worst ozone or carbon monoxide
to implemcnt company-based programs to reduce t nln
driving by their employees.
The purpose of the ECO program is to deal directly with the
rapid increase in the number of miles being traveled by
automobiles and 1 ight trucks - - increases which threaten to
overwhelm reductions in motor vehicle pollution that are
resulting from cleaner vehicles. As the only program
specifically In t1rlAted by the Act to addrcoo this increase. £CO is
an important first step in bringing attention to this growing
source of emissions. The program is being iaçli wv nted; at this
point, 13 of 14 state and local ECO rules are in place. In
addition to helping to clean the air, these programs can reduce
traffic congestion that pla uea our nat ion’s cities. pr te
public transit, and encourage rgth” l solutions to
transportation problems.
Our continiring effort here at EPA is to make the program
work in ways that make sense at the local level. In that regard,
let me adiiress specific concerns that have arisen about the
impact of the program on individuals employers and states. A
more in-depth clarification of these issues is enc]
_
e
R—95% 202 260 3730 06—13—94 11:35AM P005 U7
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: N- :- .9g. J:32 I1 E?R 1OB!LE RCES TO fl3/P 2 S
2
I.. There is nothing in the Clean Air Act that OU1d force an
employee to chan e commutina habits . An employee may accept
or reject an employer’s .uwezitives to 5top driving alone to
work. The Clean Air Act gives employers flexibility to use
3fl incentives they chooco to promote compressed york t.zeeks,
mass transit, vanpools, carpools, ridesharing,
$oIvw mmuting. bicycling and wajjcinq, or working at home.
Many employees will benefit from the ECO program.
2. Employers who trY but fail to meet triD reduction coals
should not be penalized . EPA viii approve state ECO
programs theL protect employers from receiving penalties for
failure to achieve their trip reduction goal as long as they
submit and implement, in good faith, plans deRignRd to
achieve that goal.
3. ! i ilure to meet trin reduction goals would not trigger
Clean Air Act sanctions againststates . Sanctions —
specifically, a loss of highway funds or a requirement for
new sources to obtain offsetting emissions reductions from
other sources at a 2/1 raLLc — would be levied based on
the failure of an ECO program to reduce coamuter trips or
emjseions as much ac projected. -
States and businesses should be provided with the v1 um
flexibility available under the law in implementing this program.
The Agency has worked closely with state and local air and
transportation officials to fashion the program with that
principle in mind, and we continue to explore opportunities to
provide additional flexibility. A stands raady to allow stated
to grant employers credit for measure that reduces employee
commute trip s in gasolina-fuelad vehicles.
Rec ntI y, we have adopted new policies that demonstrate our
ongoing commitment to flexibility in the ECO program. For
example, EPA will allow states to approve employer plans that
include certain incentives that may be applied onLy during the
season of high pollution levels if the plan will achieve the
empioyer ‘ s trip reduction goal. as determined by the State. A
more detailed explanation of flxibilities associated with the
ECO program is enclosed.
Th primary responsibility for designing and impl enting
ECO programs rests with state and local agencies. while
providing assistance and support, EPA is granting these agencies
substantial flexibility to tailor their ECO programs to their
particular circumstances. To cite just two examples of
t lexibility in the program: Statà ’ rules allow employers to
reach ECO trip reduction targets by averaging among different
work z it.s, or by obtaining credit from othor employers tvho -
expect to achieve greater-than-required trip reductions. A1G0,
R—95% 202 260 3730 06—13—94 11:35AM P006 1 I7
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i+1-1994 •3: __ rt1bLL ::a.A.a &h_.::
3
states such as Neir York, Pennsyivania_ and Texas have set
differing trip reduction targets for employers in dif ferent zones
-— ror example, downtown and suburban zones —— within a non-
attainment area.
It is important to note that state and local agencies will
decide uhnth.r employers • ECO plans are adequate to meet
statutory requirements, and later whether employers have made
good-faith efforts to achieve trip reduction goals. EPA Jill
give substantial deference to thes. state ana local agency
determinations. The Agency believes that state and local
agencies will usu proper judgment in determining uhether an
employer’s plan demonstrates that the trip reduction goal will be
met, cznd whother an amployar has made a good-fait.h iif fart.
As I am sure you are also aware, the Congestion Mitigation
and Air Quality Improvement (CMAQ) Program is a $6 billion
program established by the Internodal Surface Transportation Act
(ISTEA) designed to support the imple mentation at transportation
control mea ures. C aQ funding is available to assist employers
in Implementing thu ECO program. The U. S. Dopar ent of
Transportation Overseas thia’proqraz and has worked cl6sely with
CPA in implementing aCAQ.
Thank you for the opportunity to clarify these issues.
P.nc1o uras
s
Carol I C. mrowner
R —95%
202 260 3730
06—13—94 11:35AM P007 17
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JUP-13-1994 1 : 33 FI 3I EP( FIJB I LE SQi S , .
Employee Commute Options (ECO) Flexibilities
The Environmental Protection Agency (FPA) has sought to provide flexibility in
the EGO program to date and will persist in its efforts to seek flexibility where possible
under the law. State and local agencies have substantial discretion in the
implementation of the program. EPA has supported and continues to support States’
efforts to provide flexibility in the ECO program given the explicit nature of the statutory
requirement. Just recently, flexibiities have been added that wlU expand further the
choices available for implementation of the ECO program.
Flexibility Inherent in State and Local Implementation
Through the ECO guidance document, EPA clarified for States our expectations
regarding ECO State Implementation Plans (SIPs). However, actual implementation of
the ECO program is in the hands.of the States. State and local agencies will decide
whether employers’ draft EGO plans are adequate to meet stanuoty iequirernenrs, and
later whether employers have made good faith efforts to achieve trip reduction goals.
EPA bclicve that State and local agcncics will use proper judgment to determine
whether an employer’s plan demonstrates that the trip reduction goal will be met, and
whether an employer has demonstrated a good-faith effort.
EPA’s Comxnitinern to Flexibility in the ECO Program
EPA incorporates flexibility Into the EGO program through the EGO guidaiic
The ECO guidance allows trading within the program and allows for credit to be given
for employcca who commute in clean fueL vchiclcs. EPA also minimized the numb r of
small employers affected by the ECO program by interpreting the language of the
provision to apply to employers with 100 or more employees at a warksite nat 100 or
more employees total in the nonattainznent area. Furthermore in thi ECO guidance,
EPA establishes a de minimic of 33 employees such that employers with fewer than 33
employees arriving at the worksite during the peak period are not subject to thó
program. EPA felt in these cases employers would not be able to meet the ECO target
because of small size and unusual shift patterns, respectively.
In a subscqucnt announcement, as part of the Clinton Admn 1ration ’s Clirnnte
Change Action Plan, EPA promotes “parking cash oüt’ legislation which would provide
- support to employers in meeting the FAX) requirement. Parking cash out legislation
would mean that employers would not need to pay taxes on cash equivalents offered to
employees for employer paid parking. Under certain circumstances, where employers
are providing employees with free parking, employers may find this strategy alone will
allow them to meet their EGO requirements with little, if any additional expense and
minimize reporting requirements.
R—95% 202 260 3q30 06—13—94 11.3SAM P008 I ?
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3 1.14-13-1994 1@:34 FR]1 EPA r orni si.RcEs iu
t.
To datt, 13 of 14 State and loe i1 ECU regulations are in place. EPA has worked
closely with areas as they have been developing their ECO programs. For example,
several States expressed interest in adjusting the distribution of the required 2S%
increase in different ways across the nonattainment area. EPA has allowed such a
differential approach where the overall resuLt is the required 25% increase, thus allowing
Texas, Pennsylvania, and New York to develop programs best suited for each of those
States. In anothcr casc, Connocticut expressed interest in allowing vehicle miles
travelled (VMT) to be taken into account in the employer calculatioL EPA reviewed
the Staces proposal and approved one such approach. Connccticut subsequently elected
not to use this approach but EPA stands ready to work with other States interested in
induding a VMT component in their ECO program.
The ECO provision of the Clean Air Act emphasizt s a a ducdon in trips and
vehicle miles travelled (VMT). Where it is possible, EPA is interested in allowing for
flexibilities that will assist employers in meeting their ECO requfremems EPA’s
commitment to seek innovative approaches to ECO is demonstrated in our participation
in a series of roundtable meetings with the State and Territorial Air Pollution Program
Administrators and Association of Local Air Pollution Control Officers
(STAPPA/ALAPCO). At these meetings where Stale and bat Departments of
Transportation also participated, a number of ECO issues were discussed that resulted in
added flexibility to the ECO program. Those and other flexibilities are listed below.
Recently Added Flexibiities
Region-wide Trip Reduction Program
EPA will support a State that ectnhlishes a credible program targeting trip reduction on
a regional basis as a means of meeting the ECO requirement. A State may demonstrate
that the regional program is equivalent to the .trip reductions achieved through a
successful ECO program such that employers would not be required to submit individual
plans. An cxaniplc of such a program would be parking cash out at the regional leveL
At little or no cost employers would offer employees cash equivalent to the value of
cmployer paid parking. Employcca would decide themselves whether to accept the
employer paid parking or the cash.
Use of Seasonal Strategies
EPA will allow states to approve employer plans that indutk subsidies to employees that
may be applied onLy during the season of high pollution levels if the plan will achieve the
employer’s trip reduction goal. As a result employers may concentrate a significant
portion of their ECO-related resources during the time of year when the air pollntion.
warrants it the most. Employers that elect to provide employee subsidies for transit,
ridesharing. biking or walking may include in their compliance plans such incentives on a
seasonal basis if the State determines that the employer’s plan convincingly demonstrates
the target will be met.
R—95% 202 260 3730 06—13—94 11:35AM PODS 17
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JLt4-13-1994 1 : F1 EPA t1)BILE soLJ cEs TO p
Satellite Work Centers
An employee who travels a shorter distance to a satellite work center compared
to the distance to his or her main worksite may receive credit in the employer’s average
passenger occupancy (APO) calculation. The State would determine exactly how that
credit would be established.
Credit Through Voluntaxy Participation
States may establish a credit program such that employers not subject to ECO
could demonstrate trip reductions to generate credits, availabLe to employers subject to
the program..
Reduction of Delivery and other Work-related Tzip During the Peak Period
Employers that reduce delivery and other work-related trips occurring during the
peak period can generate ECO credit to use themselves or to trade with other
emplnyers. An employer participating in such a credit program will need to establish at
the onset a baseline of work-related trips from which to measure creditable trip
reductions.
Credit for Children Dropped off at Daycare
EPA will allow States to accept credit for children dropped off at daycare. An
employee who drops a child off at daycare, whether on-site or off-site, may provide
credit in the calculation of the employer average passenger occupancy (APO). Credit
will be proportional based on the number of occupants in the vehicle. An employee who
drops two children off at daycare en route to a wor]csite will be counted as arriving in
1/3 of a vehicle which will make it easier for the employer to meet the target.
EPA will continue to work closely with the States to seek flcxlbilitics that can be
built into the ECO program while still meeting the statutory requirements of the
provision.
R 95% 202 260 3730 06—13—94 11:35AM P010 U17
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Responses to Questions Submitted for the Record
by J. Dennis Hastert
Subcommittee on oversight and Investigations
June 22, 1994 Hearing.
Ouestionj, :
Referring to the 25% increase in APO (average passenger
occupancy), can you refer me to any scientific studies that
docunient the feasibility of this particular standard?
Answer :
In setting the 25’s target in the Clean Air Act Adcnentments of
1990 (CAAA), Congress drew on the example o the South Coast Air
Quality Management District (SCAQMD) in California. Three
Average Vehicle Ridership (AVR) targets, based on location within
the District were fashioned to result in approximately a 25%
increase in average vehicle ridership in the Los Angeles,....san
Bernardino, Orange and Riverside Counties. To date, studies
undertaken by the SCAQMD have shown an increase in AVR, but no
area within their jurisdiction has yet achieved the 25% increase.
guestion 2 :
In a recent Washington Post op ed piece (May 30, 1994) Ms.
Browner stated “We recognize the need to move beyond one-size-
fits-all regulations.. .“. However, EPA requires that every
extreme and severe non-attainment area increase vehicle occupancy
(i.e. reduce automobile trips) by the same percentage (25%)
regardless of actual air quality conditions and notwithstanding
circumstances that differ significantly in various areas. For
example, last year Chicago reported no ozone exceedances whereas
Los Angeles had 143 exceedances during that same time period.
Yet, both locations are required to reduce vehicle usage by the
same amount. Does such an arbitrary approach make sense in light
of the demonstrably varying conditions within any particular
nonattainment area?
Answer :
Under the CAAA, Congress required that all severe and extreme
ozone nonattainment areas and serious carbon monoxide
nonattainment areas establish programs aimed at reducing commute
trips to the work sites of large employers.
fl f: 6’ O’QO
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2
Our continuing effort here at EPA is to make the program
work, within the limits set by Congress, in ways that make sense
at the local level. The Agency has worked closely with state and
local air and transportation officials and as a result, state and
local agencies have substantial discretion to design and
implement their ECO programs. For example:
• States can set differing ridership targets for employers in
different parts of a nonattainment area - - such as downtown
and suburban areas.
• A state ECO program can protect employers from penalties if
an employer fails to meet trip reduction goals when a good-
faith effort has been demonstrated.
• A state may establish a regional trip-reduction program as a
means of meeting the ECO requirement. A state may
demonstrate that the regional program would produce trip
reductions equivalent to those from a successful ECO
program, and employers would not be required to submit
individual plans. An example of such a program would be
parking cash-out on a regional level. At little or no net
cost, employers would offer employees the option of cash
rather than employer-paid parking.
Ouestion 4 :
Administrator Browner has been quoted on many occasions as
wanting to reduce the economic impact of EPA regulations on
industry. However, EPA has estimated the 1 cdst. of the ECO program
nationwide at from $1.2 to 1.4 billion per year (Employee Commute
options Guidance, December 1992). Given the very modest
reductions in vehicle emissions achievable through employee trip
reduction programs (on the order of 1-2%, according to the Joint
DOTIEPA Report to Con iress , August 1993),: as compared to their
cost, how do you justify going ahead with this program?
Jnswer :
Congress has mandated that EPA and affected ta.tes carry out this
program as a means to reduce air pollution and traffic
congestion. EPA is committed to flexible implementation of the
ECO program in order to minimize the costs. Employers required
to implement ECO have a wide range of options to chose from in
designing their plans. Employers’ plans may promote compressed
work weeks, mass transit, vanpools, carpools, telecoinmuting,
bicycling and walking, or working at home. EPA has given states
the ability to grant employers a range of options to achieve
ECO’s goals. For example:
I. t — # . a L a It A a a a
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3
• States can allow employers to reach ECOridership targets by
averaging among different work sites, br by obtaining
credits from other ernplcyers who achieve greater-than-
required trip reductions. -
• States may allow credit for employees arri ving in clean-fuel
vehicles.
• States may accept credit for children dropped off at
daycare.
• States may approve employer plans that include subsidies to
employees such as subsidies for transit or ridesharing that
are applied only during that state’s season of high
pollution levels. As a result, employers may focus a
significant portion of their ECO resources on the time of
year when air pollution levels most warrant trip reduction
efforts.
EPSD:Brown/Ruth:mns:2565 Plymouth Road:X4259.:07/13/94
Last Reviewed by Jane Armstrong: _/ / :Contro]. No: AL943239
Reviewed by: DZINGER:sbh:X7647:6401:V13794:G:SABRINA:AL943239
fl t e j un ig j
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shall be subject to decertiflcation untiar
part 42 of this chapter.
23. Section 77.103 s amended by
adding a new paragraph ( Ii) to read as
follows: -
§ 77.103 Elecatcatwodi qualified persoe
• * - . * -
U i) Any person qualified under this
section to perform electrical work shall
be subject to decertificalien HndPT part
42 of thischap&ez.
• 24. Section 77.104 is revised to read
as follows:. -
§ 77.104 Repafr hulled surface high
voltage llnes qualified rsoe .
• (a) An Individ ual faa qualified person
within the meaning of § 77.704 for the
purpose of repairing energized surface-
high-voltage lines only If the fndlvldua
has hadat least 2yearsexpeziencsin
electrical nuth.h. . .non . and at feast Z
years experience In the.repafr of:
- energized high-voltag lines located on
polesoisiruduzes.. • - - - -. -:
(b) Any Individual qualified for the
purpose of repairing energized surface
- high-voltage lines shall be sub ectto
deco ficatlon unrl rpad42of this -
chapter.. . -
25. Section 7Z.105 is n mdad by
adding a new paragraph (c) to read as
fo lk ,ws:.
§ 77.105 a Mftfled hdtabmwi ; siope uu
sinking opera&. , quaflflcaeons.
* (c) Any person qualified as a
holstman shall be subject to
decertificasion under part 42 of this
chapter.
26. Section 77216 -3 is amended by
adding a new paragraph (ii) to read as
follows:
/ 7 ,
- Envir enta [ Protet*i 1 A au y,. --
Region 5.77 West Jackson Boulevard.
Chicago Illinois, 60604
Please contact Patricia Morris at 312).
353-8656 before v1 1ting the Region 5
office.
FOR RJRThER 9IFO TICN ATACT -
Patricia Morris, Regulation
Development Section. Regulation
Development Branch (AR—18fl. U.S.
Environmental Protection Agency,
Region 5,77 West Jackson Boulevard,.
Chicago, Illinois 60604. (312) 353-8656.
SUPPLEMENTARY INFORUAIION -. -
L Background
Section 182(d)( IUA} of theAct, as
- amended in 1990 (Act), requires Sates
containing ozone nonatt1l 1tment areas
dassified as “seveprrrsuantto’
section 181(a) of the Act to adopt
ol meemresfl )
and transportation tre4 Mrvtv les to-
offset any In emisSlerte :—-
growth In VMT or n b .x civahick’
trips, and to attain reductions in motes
vehicle emissions (in combination with
other emission reduction requheeserts)
• as necessary to comply with the Act &
• RFP milestones and att fnm t .
- requirements. The requirements for- *
• establl h1ng a VMT Offset program axe
discussed In the AprIl16, 1992, General
Preamble to title I o the Act (57 FR -
13498), In addition, to section
182(d)(1)(A) of the Act.
For certain programs required under
the Act (Including VMT—Offset). USEPA
had earlier adopted a policy pursuant to
section 11O(k)(4) of the Act to
conditionally approve SIPs that
committed to provkie the USEPA with
specific enforceable measures by a date
certain. That Interpretation was -
r]is .ll .nged In-Natuml Resources.:
Defense Council v. Browner, -
consolidated lawsuits brought in the
United States Court of Appeals for the
District of Columbia Circuit. Inafull
opinion, dated May 6,1994 (and In a
March 8, 1994 Order and April T2, 1994
Amended Order issued earlier), the
Court found that USEPA’s conditional-
approval interpretation exc eded
USEPA’s statutory authority. While the
Court did not specifically address the
VMT Offset program in its orders or
opinions, USEPA believes that the
Court’s general conclusions that the
USEPA’s construction of the co ditwinl
approval provision was unlawful
precludes USEPA from IakJng action to
approve any submitted VMT Offset
committal SIPS.
On September 10.1993. the USEPA
published a proposed rule (58 FR
47701) to conditionally approve
Indiana’s commitment for the VMT—
- 54868 Federal Register / - Vol. 59 , No. 211 / Wednesday. November 2, 1994 / Proposed Rules
to decertification i der pert 42of this
chapter. ,, -
29. Section 90.203 is amended by
adding a new paragraph (d) to romf as
follows- - - -
§ 90.203 CeflHIad peraen m&nhn,.,ce
and calibration. . -
• * •- a. *-
(d} Any person certified tonialntahr
and calibrate appruved simpling
devices shall be subject to -
decertification under part 42 of this
chapter. - - - - -
IFR Dcc. 94—V117 Flied U — ç &ss am)
ceor * - - -• - - - . -
ENV1RONUE I4TALPROTECUON
AGENCY-.. -:- - -...
UNfl-3-6575 FRL-6096.0] -
., .‘ - •.•..-;
Approval and Promulgation of an-
lmp . 1 ... .L.Uon Plan for ieItiola MuIe
Traveled; htdlana -.. -
AGENCY: Envir . i ha.lPr,âucth .ia:
Agency. - • :- - - - -
ACTION: Proposed rule. :::.- -
SUMMARY: The United States
Environmental Protection Agency
(USEPA) proposestó pp .ove a request -
for a State lmplam .ntaticu Plan (SIP)
revision, addressing the Lake end Porter
County n,1m nonnffnh.m tnt area,
submitted by the State of Indiana for the
purpose of offsetting any growth in
emissions from growth in vehIcle miles
traveled (VMT) ornumber of vehicle
trips. and to attain reduction in motor
vehicle emissions, In combination with
other emission reduction requirements,
as necessary to comply with Rpwmahh ,
Further Progress (RFP) milestones and
attainment requirements of the Clean
Air Act (Act). The rationale for this
proposed approval is set forth below;
additional information Is available at
the address indicated below.
DATES: Comments on this proposed rule
must be received on or before December
2,1994. - - .
ADDRESSES: Wrftten comments should’
be sent to J. Elmer Bortzer, Chief,
Regulation Development Section,
Regulation Development Branch (AR—
18J), USEPA. Region 5.77-West Jackson
Boulevard, Chicago, IllinoIs 60604—
3590. -
Copies of the documents relevant to.
this action are available for inspection
during normal business hours at the
following location Regulation -
(d) Any person certified to conduct Development Section, Regulation
respirable dust sampling shall be subject Development Branch (AR-18fl. U.S.
§77216.4 - Water, sediment, or slurry
Impoundment. nd la oundlng structures;
Inspection requkememts correction of
hazards; progmm requirements.
* *I• * * *
(h) Any person qualified to inspect
water, sediment, or slurry
impoundments shall be subject to
deceitiflcation under part 42 of this
chapter.
PART 90— [ AMENDEDJ
27. The authority citation for part 90
isrevisedtoreadas follows:
Autbority 30 US.C. 811 and 813(h).
28. Section 90.202 is amended by
adding a new paragraph (d) to read as
follows:
§ 9O.2 Certified persorç sampling.
* * * * *
S
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Federal Register / Vol. 59, No 211 / Wednesday. November 2 1994 / Proposed. Rule
54867
Offset jequirenaent. In. light of the Court if a State fails to submit a full SIP also, The USEPA believes it is reasonable to.
opinion, Indiana has withdrawn the provides that the sanctionsciock starts. extend the deadline for this elementto
committal SIP’ in a letter dated. July 5. if a State fails to submit one or more SIP the date on w1 ich the post-1996 RFP
- elements, as determined by the - . and att 1iament SIPs are due for the
In light of the outcome of the Administrator. The USEPA believes that same reasons it. is reasonable to extend
litigation. USEPA has decided that it this language provides USEPA the the deadline for the second element
would be appropriate to interpret the authority to determine that the different First, it is arguably impossible for a
VMT Offset provision of the Act to elements of a SIP submission are. State to make the showing required by
account for how States. can practicably separable. Moreover, given the .. section 182(d)(1)(A) for the third.
comply with each of the provisiou’e continued timing problems addressed element until the broader-
elements..The VMTOffset provisioa above, USEPA believes it is appropriate demonstrations have been developed b)r
requires that States submit hy.November to allow States to separate th,VMT the State. Moreover, allowing Statosto
.15, 199Z specific enfOrceable TCMs and Offset SW into three .lements ,,eaeh .to develop the comprehensive strategy Is -
strategies to offset any growthin be submitted at different times (i)The address post-1996 REP and attainment
emissions from growth in VMT or. initial requirement to submitTCMsthat by providing a hailer opportunity’to
number oLvehicle trips sufficfentto offset growth in emissions; (2) the assure that the TQi4 elements comply
allow total area emissions tocomply. . requirement to comply with the.15t%r . with the broaderREP annm nt
with the RFP and attM nmenL. . - - - - periodic reduction ’reqiiwi ment of the--; demonstn ions,.wil ultinabetter- -
• requirements of the Act. - . Act; and (3) the requirement to comply - ro m.forredudngitinu cfnmi in the
• The USEPA has observed that these ‘ with the post-1996 periodic reduction. long term....; .‘,
three elements (1.e...oflhetth g gthwth in and aU mentrequiremeniaofthaAct. ,. On November17, 1993 ,Jndlnne ’.
mobile source emis$ons . ,a’ n ent of Under this approach,.the&st.-. ’ . ‘ , submitted to USEPA doaimsedatiairte
the REP wdtzctfon, and atr (nment of’ , element, the e o eteln’n ’I , -; ani J
the ormieNatlonal.Amhfant AfrQjsa1It was due on November 15b.1992..The-. the VMT -Offsat SIP.A pubIich ’ - .
Standards (NAAQStaest. aIti thig,. USEP&belleves this iilrnn. , ,t is no -. -, was-bald on December 1 1993,,and. -
problem ofwbfch , ngress wAs perhaps.’, necessarily dependent on the .. . ‘.. -: .documentaiion.on thepibIIchear1n -
not 5 z 11 y aware. As discussed’ in. development of the other elesseuM . The was submitted to complete the SIP
USEPAt ApriY 1ff, lO9ZGeneral’ .- State could submit the ml nii .growth eviMonrequest.In 4 i n does notat this.
Preamble to tide-I ozone nonatt nment offset element independent eLan. -: -. thne kntfripi4e the-need for addititmak - ‘
areas affected by this provision were not, analysis of that ii .rn 1’ ceusIstehây . - TQ4s .tttmeet the fMirnna,i5
otherwise required to submit SIPs that with the periodic r luct1bnan “ . demonatatloisrequleeneat but 1111
show attafnmenf of the 199615% REP . attainment requirements dthe. Act.., , submit any necessaly TQ .fs with the-.
milestone until Nbvensbez 15 1993. and ‘rncci fl trends from. other eow- - atta ninentdemonstradcu , SIP. -
likewise arenot requfred’ to demonstrate need not be considered to show. - w , , - z i, . - I. •
post-1998 RFFandattnibiinmi* of the compliance with this offset requlr.niant . w wUuuOfl ui uw tate Uuuuttw
NAAQS until November 15 1964 The - As submitting thls.elenient In Isolation Section. 182(d) [ 1)(A) of the Act
SIP demonstrations due on November ‘does not implicateththolngproblesn.’ requires. the State to offset any growth
15, 1993, and on November 15. 1994, of advancina dmdlinas for p j. ‘in emissions from growth in VMT.J.a.
are broader in scope than.growth In - attainment aemonstrations,,USEPA does, discussed in the General Preamble, the
VMTortrips in thattheyn c i1 - ‘notbelieve itisneoassaryto.extend the PUrPOSeIStOPreVeflt agrowthIamOt
address emission trends and .control statutozy-d *dIi eforsubmitts11of th. vehicle eml inn fi m Kng out
measures ibr non motor vehicle - emissions growth. offset element.. the emission reduction bAn R s of’the.
emission sources end ..in the case of . - Thesecond ,elami ’i % , whlcb requires: federally mandated programs in-the-Act
attainment 4emonstratfons,.coinpI x. The USEPAinterpzets this provision to -
- photochemfcalmocfeffng .studies... require that suffiaent measures be
adopted so that projected me rvph Lu’
volatile orgink ! compound WOCI -
emissions will never be higher dunng
the ozone season in one yeas than -
during the ozone season in the year
before. When growth in VMT and
vehicle trips would otherwise cause-a
motor vehicle emisslons.upturn, this
upturn mustbe’ prevented. The
emissions level at the point of upturn
becomes a ceiling on motor vehicle-
emissions. This requirement applies to
wa1 oetT on uon.. . projected emissions in the-years.
betweenthe siihmi inn of the SIP
revision.and the atlAinment deadline
the VMT OffsetSIP tocowpI p with the.
15% REP iequlremantottheAct . .was.
The USEPA. does not believe that -. - ,due on November15, i-993 ,wlnch , is.the•
Congress intendoct the VMT Offset same date on which the 15% REP SW
provision to ad ’ancethe dates-for these itself was due under section’ 1.BZLbUI.1 of
broader submissions. Further, USEFA . the Act The USEPA believes it Is. -
believes that the November 15, 199Z, reasonable to extend the deadline for
date would not allow sufficient time for this element to the-date on which the.
States to have fully developed specific entire 15% SIP was dua as this allows
sets of measures that wouldcomply ‘ States to develop the comprehensive
with all of the elements of the VIifr strategy to address the 15% reduction
Offset requirementh of section requirement and-assure that the TCM
162(d)(1) A)over the long term.. ‘ elements required under section
Consequentl i. USEPA believes it would 182(d)(1)(A) araconsistent with. the
be appropriate to Interpret the Act to remainder of” - “ ‘ - -
provide-the followiogalternathcesetof Indeed, USEPA believesthat only upon
staged deadlines for submittal of - submittal of the breader 15% plan can
elements of the VhCL ’ Offset SIP. a State have had the necessary’
Under this interpretation, the three opportunity to coordinate it’s ‘dNf
required elements of section. strategy with it’s 15% pLan.
182(d)(,1)(A) are sapamMe,and can. be The third element,.which requires the
divided intothreeseparaIe ’ ons VMT Offset SIP to comply with the
that could besuhmin d. on different post-1996 REP and at?nininent
dates. Section 179CaJ of’the Act, in requirements of the Act, wile-d ue-on
establishing how USEP&would.be November 15, 1994, thastatutory
required to apply mandatory sanctions deadline for those-broader subm ’ sions,:
and is aboveand beyond the separate.
requirements for the REP and the
attainment demonstratione..Theceiling
level is defined therefore,, up to the
point of upturn. asmotor vehicle
emissions that would. occur in the ozone
season of that year; with (MT growth..
if all measures for that area in that year
were implemented asiequizecibythe
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54868 Federal Register / Vol. 59, No. 211 / Wednesday, November 2, 1994 I_Proposed Rules
Act. When this curve begins to turn up
due to growth in VMT or vehicle trips,
the ceiling becomes a fixed value. The
ceiling line would include the effects of
Federal measures such as new motor
vehicle standards, phase [ I RVP
controls, and reformulated gasoline, as
well as the Act mandated SIP
requirements.
The State of Indiana has demonstrated
in its submittal of November 17, 1993,
that the predicted growth in VMT in
Lake and Porter Counties. Indiana, is
not expected to result in a growth in
motor vehicle emissions that will negate
the effects of the reductions mandated
by the Act. Further, Indiana has
projected motor vehicle emissions to the
year 2007 and, using the most current
socioeconomic data, has not predicted
an upturn in motor vehicle emissions.
In the event that the projected
socioeconomic data and, associated VMT
grow more rapidly than currently
predicted, Indiana Is i uqulred by section
182(c)(5) 16 track actual VMT starting
with 1996 andevery three years there-
after to demonstrate that the actual VMT-
isequaltoorlessthantheprojected
VMT. TCMs will be required to offset
VMT that is above the projected levels
section 182(c)(5)). S -
The VMT offset submittal from ‘.
Indiana dated November 17, 1993,
contains the final report “TCMs to
- Offset Emissions from VMT Growth in
Northwestern Indiana.” The report used
the most current socloecononiic data
and the travel network model in
conjunction with the MOBILE5a to
estimate mobile source emissions to the
attainment year of 2007W
This report also documents the
progress Indiana has made in evaluating
TCMs to reduce growth in VMT and
thus reduce emissions. Indiana may
choose to take credit for TCM emission
reductions as part of the post 1996 RFP
requirement or to meet the attainment
requirement. Not only has Indiana
evaluated the effectiveness and
predicted impact of a number of TCMs
but actual implementation of selected
TCMs has been ongoing. For example, a
new inter-city bus route to link the cities
of Hammond. East Chicago and Gary.
Indiana has been started. These three
cities have operated established intra
city bus routes for many years and this
is the first route to link the already
existing transit services for these cities.
These specific TCMs however, are not
- a part of the current SIP revision request
and are not a required portion of this
SIP revision. Thus, Indiana is not
currently taking credit for the emislon
reductions from these TCM measures
and the State is not bound to implement
or continue to imple!nent any specific
Summery of Findings . -
In the requested SIP revision
submittal, Indiana has projected motor
vehicle emissions until the statutory
III. Proposed Rulemaking Action and
Solicitation of Comments
Based on the submittal accompanying
the State’s SIP revision request, USEPA
proposes to approve the SIP revision
submitted by the State of Indiana as
satisfying the first two of the three VMT
offset plan requirements. Public
comments are solicited on the requested
SIP revision and on USEPA’s proposed
rulemaking action. Comments received
TCMs. These measures, however,’ - attainment year of 2007 usinj the most-
illustrate Indiana’s work in evaluating recent population and economic growth
and implementing TCMs to meet the projections. These projections went
requirements of the Act. Also, the TCMs through public hearing and comment on
may be used in subsequent SIP December 14, 1993. Using current VMT
submittals as necessary to meet the post forecasts, these projections show that
1996 RFP requirement or the attainment motor vehide emissions are not
requirement. expectedto rise above the ceiling level
Additionally, Indiana is - i through the year 2007.
implementing TCMs to complement thern In addition, Indiana has identified
employee commute options (ECO) and evaluated, a number of specific
program which requires a 25 percent ,- TC!4s to reduce single occupancy -.
reduction in single occupancy vehicle vehicle usage. Several of these
usage for home to work trips for - identified TCMs are currently being
employers of 100 or more persons. ; implemented. The VMT offset submittal
Activities includet Planning and * from Indiana dated November 17. 1993,
promotion, new bus routes, improved. contains the final report “TCMs to
transit service, and carpooling match-up Offset Emissions from VMT Growth in
services. A number of TCMs have been Northwestern Ind1ana ’ This report,
implemented in Lake and Porter •‘ documents the progress Indiana has
Counties through use of the Department - made in evaluatinj i ts to reduc -
of Transportation’s congestion - :. growth in VM’ and thus reduce ..,-
mitigation and air quality funds wider - ‘ emissions; Indiana his evaluated trio ‘.....
the Intermodal Surface Transportation:. effictlveness and predicted Impact of a..
Efficiency Act. These pro jects.have ‘ number of TCMs through actual .‘ -
included: purchasing clean fueled i.’ implementation of selected
buses, operation of new bus service, - although these TCMs are not a part of .
improvedtzunsltseMceandECO ‘ . ‘ theSlPrevisionandlndianalsnot ’
activities. In conclusion, Indiana is’ - - taking emission reduction credit for:
evaluating andlmplementingTCMs is - theseTis.-. - -, ,
expeditiously as possible even when the, . Indiana has met the first and second’
emissions projectlons,indlcate that: ‘-s’ requirements of the VMT offset plan.
mobile source emissions will continue - -. Indiana has Identified and evaluated -.
to decline without addlt1onalTQ 4s.1 - TCMs to reduce VMT. Regérding the’:
Indiana submitted a 15 perceit RFP ‘first requirement, Indiana ) -.
SIP for northwest Indiana to the ‘USEPA demonstrated In the November 17, 1993
in November 1993, but the submittal’- submittal that projected growth in VMT. -
was found Incomplete in a letter dated is not expected to result in an Increase
January 25, 1994. The RFP SIP lacked - - . in emissions from motor vehicles and is
enforceable regulations and a public not expected to negate the progress in
hearing. -The public hearing was held on emissions reductions iequiied to meet
March 29, 1994. Although the RFP SIP attntnnient of the standard by 2007.
is still incomplete due to the lack of Regarding the second element, IndIana
enforceable regulations. Indiana’s- listed in Its Incomplete 15% RFP - - ‘ -
submittal does indicate that TCM’s submittal feasible measures intended to
would not be necessary to attain the meet the 15% reductIon by 1996 -
15% reduction required by 1996. The without relying on TCMs and —
RFP SIP asserts that a 15% reductIon in shown that further TCMs are not.
emissions could be achieved by 1996 necessary to meet the second element of
through the feasible measures detailed’ section 182(d)(1)(A). The third -
in the SIP submittaL Under the requirement is for Indiana to use TCMs
approach contained In the submittal, the as necessary to meet the attainment of
State would achieve the 15% reduction the standard. This third requirement
in VOCs through measures otherihan - will be submitted with the attainment
relying on TCMs. The majority of the demonstration SIP nd will be
reduction would be obtained from addressed in future proposed and final’
stationary source shut downs. Other rules. - _‘
measures include enhanced vehicle -
inspection and maintenance and
reformulated gasoline. For the
attainment demonstration which is due
November 14, 1994, Indiana has
indicated that it will include TCMs as
necessary’to reach attanment. -
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Federal Register / Vol. 59, No. 211 / Wednesday, November -i, 199-4 1 Proposed Rules
54869
40 CfR Parts 63 and 70
(ADR-ffiL-6100-6]
by December 2,1994, will be considerea
in the development of USEPA’s. final
rule.
This action has been classifiedas a
Table 2 action by the Regional -
Administrator under the procedures
published in the Federal Register on
January 19, 1989 (54 FR 22142225), as
revised by an October 4,1993,
memorandum from Michael IL Shapiro.
Acting Assistant Administrator for Air
and Radiation.. The Office o1
Management and Budget has exempted
this regulatory action from Executive
Order 12866 review.
Nothing in this action should hi
construed, as pe1mittingolrollowingor
establishing a precodrut far any fatuz
request for revision ts any SIP. Each .
requestior revision to any SWshallbe
considered aspemeel),iralWit of spec c
t arhni ul .ecenomI IZa en, onmesdal
factors and in relthenimisna ’
statutory aatreealelsIwseatfrmnonts .’
regulation. Section 112 (g) requires
control technology reviews for new,
modified and reconstructed mn or -
Peer Review of the Proposed Section SOUrCeS of these pollutants. Increases iii
112(g) Hazard RankIng Document; - hazardous air pollution emissions- from
Open Meeting existing major sources are not
considered a modification if they cur be
AGENCY: Environmental Protection - offset by equal or ’greater decreases in
Agency (EPA). HAP deemed “more hazardous”.
ACTION: Notice of meeting of the peer Furthermore, the HAP “with no safely -
reviewers, threshold of exposure” may only be
offset by other such “nonthreshold”
SUMMARY: Notice is. hereby given’ ih.p - pollutants. Therefore, threshold and
meetingof the peer reviewers of the. nonthreehold pollutants must be
proposed hazarth ankIng’dooiment of identified and are subject to offsetting
section 112(gl of the Clean AivAct . The proposed section
Amendments (1990 eudments) wiN 112(g) rol n4iiking contains the EPA’s
beheld.. “ .‘ guidance thatidentifiesthere lative
DATES: November l8 1994. The meeting- hazard to human health of these
will be from 8:3tYe.m. te12 0tYpJm on. hazardous pollutants and applicalfonof
November18 and is open’ to the pub&.. that e r 4, tkm far determining
ADDRESSESrEPA’s Office ot’ . ‘.. aliowfngo et&- :‘ ‘- •
.Mminfstretfon Au umi79tW j ’ - it O .ai zi, ieee. ‘-‘ ‘-
Mqxand,r Drive, Research Trraigj. ‘ Rldierd D. wu , .
Park, North Caroline. .. - :.
SUPPLEMENTARY NFORMAlcatTha.maan: Tfudfa OR. -: -
purpose ofthisineetfng fatn allow tha, (FR Den 94-fl1Th Filed fl-1-94 8:45 emj
pub’ ic to give commenttâ the. pee - ,, ‘ eiuaio ccoe mm ,eo.. - - -
reviewers onihapzoposedhazartl. .. • - - -
ranking ta hnituI supportdocuineoL-
which deithbesthaEFA sappreathtG “l”40 CFR Part i80
relatively rankthe 189 Wa, rdeuaAis
Pollutants (HAP) listed in the 1990 ‘(PP 2E4148P688 FRL-4607-5
Amendments. The i ti n ; 112(g) ‘ RIN 2070-ACtS’
rulemaking was proposed April 1.1904
(59 FR 15504), Copies of the technical Sodium Chlorate; Exemption from the
support document am available u j 6 Requirement of a Tolerance -
Technology Transfer Network AGENCY: Envfronmental Protection
network of electronic .bulletin boards.
developed and o sstedbyi the Ep ’. - Agency (EPAJ..
Office of Air Quality Planning, and ACTION: Proposed rule. -
Standards, (919)541—53841 or by - - - -
contacting he EPA office of Air and SUMMARY:EPA proposes to establish an
Radiation occ hat uI # &- -.s , exemption from the requirement ofi ,
phone (202) 260—75481. . tolerance for residues of sodium
The designated federal official for the chlorate in; or on; the raw agnculbiral.
meeting wiui be Rabed commodity potato when applied as a
Anyone wishing to lean oral - ‘defoliant in accordance with good
presentation at the meeting should agricultural practices. The nterseejoftal
contact Dr. Jane Caidwell (US. EPA,. -. ReSearch Project No 4 (1R4). requested.
Office of Air Quality Planning a id . this exemption.
Standards, Emission Standards - DATES: Comments, identified by the
DivIsion, Maildrop 13, Research -. document control number (PP 2E4148(
Triangle Park, North Carolina. 27711 P5891, must be received on or before
(9i9) 541-0328 Fax (9i9 541’-4028)by December 2;. 1994.
November 15, 1994. In’gennr2 1 each - AODRESSE8: By maiL submit written
individual or group makilganoizi -- comments to Public Response and
presentation will be limited to fifteen Program Resources Branch, Field
minutes but the tim.aHowe&wil}be - Operations. Division (7506C), Office of
dependent on the number of speakem. - Pesticide Progiems, Environmental
Seating at the meeting wilhi been a first Protection Agency, 401 M St., SW.,
come.flrst serve basis. - - Washington, DC 20460, In person, bring
Section 112 of the 1990Amendments comments to:Rni.. 1132, CM #2,1921
establishes a control technology-based. ‘Jefferson Davis. Hwy., Arlington, VA -‘
prograznto reduce stationary sourCe’ 22202. Information submitted as a
emissions of HAP.. ksection. .12(b of commant concerning this document’
the Clean Air Act., the 169 HAP am ‘.‘ - may be claimed confidential by marking
defined as hazardous for the purposanof any part or all of that information as
Under the Re ulatojy Flexibility Ad
5 U.S.C. 60Qetaeq .USEMa - . “ -
prepares regalatoryflmd analysis
assessing the Impact of anypraposed or
final rule on; small entftien. 5 U.S.C 603
and 604. Altemativ4 USEPA map
certify that the rule will not havea -
significant Impact ona substan *t
number ofaniallentjjj s , Small entitles.
include small buaan . smell act-for-
profit anterpusa.,.and gpvamment
entities with jurisdiction; over -
populations of less than- 50.000.
SIP approvals.under section 110 and
subchapter I,.part D of the Act do not
create any new. requixements,.but -
simply-approve requiremnnts that the
State is already imposing. Therefore.
because the Federal SIP-approval does
not impose any new requirements, I
certify that it does not have a aignifil iTtt
impact on small entities affected..
Moreover, due to the nature of the
Federal- relat ;nn hip under the Act,
preparation of a regulatory flexibility
analysis would constitute Federal
inquiry into the economic
reasonableness of state action.. The Act
forbids USEPA to base its. areinm
concerning SIPs on such grounds. See
Union Electric Co. v. U.S. E.P.A., 427
U.S. 246, 256-66 (S. Ct. 1976), 42 USC.
7410(a)(2).
List of Subjects in 40 R Pail 52
Environmental protection, Air
pollution control’, Ozone. -
Authority: 4Zt7.SC 740T-767 1q.’
Dated: September 30,1994;
Valdas V. Ad mIc .. . , -
Regional Administrator.
IFR Doc. 94—27174 Fired 1t—1—94.8.4 ami
BILUNO cOOC eso-ao-e -
-------
itt Sr ..
I UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON. D.C. 20460
c
4 L
OFFICE OF
j 27 i s AIR AND RADIATION
Honorable Donald A. Manzullo
U.S. House of Representatives
506 Cannon Building
Washington, D.C. 20515
Dear Congressman Manzul]o:
Administrator Browner and I appreciated the opportunity to
discuss the Employee Commute Options program (ECO) with you at
our meeting on January 19, 1995. I am writing in response to
your letter of January 20, 1995.
First, let me clarify that in our discussion on January 19,
Administrator Browner was reiterating standing policy with
respect to EPA’S implementation of the ECO program. EPA has
always maintained that States have tremendous flexibility and
latitude in their implementation of the program. The Agency
remains committed to working in partnership with the states to
implement the ECO program in a flexible and common sense manner.
This commitment is detailed in the attached letter Administrator
Browner sent to Senator Joseph Lieberman on June 10, 1994.
Specifically, EPA has emphasized that it is the State’s role
to determine the appropriateness of an employer’s plan and to
define and determine what constitutes a good faith effort on the
part of an individual employer. While EPA has an oversight role,
it is not EPA’S intent to enforce against individual employers,
as this is the state’s responsibility, or to look over the
shoulder of the states as they implement the program. Failure to
meet trip reduction goals will not trigger action against states.
Both my comments and the Administrator’s were intended to ref lest
this policy.
EPA believes this flexible and common sense approach should
address the concerns raised by you and others regarding ECO and
therefore, I do not believe-statutory change is necessary.
Moreover, it is not within EPA’s ability to make this program
voluntary. As it stands, the program merely requires a good
faith effort.
Punted on R cvc!ed Paper
-------
Without question, EPA is committed to minimizing the burden
placed on employers subject to the ECO provisions, and will
continue to work with the states to acc nplish that goa1. I
appreciate your interest in these is
Sincere,
Administrator
Air and Radiation
-------
- J__ •S._fl..
Follow-up questions to the February 15 Senate and Environment
Public Works Committee Hearing.
1) Can EPA lawfully approve a state’s revision of its
implementation plan, as required by section 182(d) (1) ( ) if the
revision does not 1) require employers of over 100 persons in
severe nonattainment areas to increase vehicle occupancy rates of
its employees by 25%, and 2) require Such employers to submit a
• on’pliance plan that convincingly demonstrates compliance with
the requirement to increase occupancy rates within four years and
why?
Answer: Yes. EP believes that the Agency could approve a SIP
wherein a State elects to submit a single plan on behalf of all
employers, averaging ac oss all workaites. The statutory
- language merely requires each employer to increase PO, and does
not specify that the required increase in PO must come from a
given employer’s own employees. Consequently, the statutory
phrase “commut ing trips between home and the workplace” can be
• interpreted to refer to the trips by any employees in the area
rather than only the employees of a specific employer. Zn such a
SIP a state would need to convincingly demonstrate that the
equivalent trip reduction targets are being achieved as would
have been achieved under a SIP with individual complianc, plan
aubniittals by employers.
EPA would approve a SIP based on individual compliance plan
submittals in which employers do not need to receive penalties
for failing to meet the target where a good faith effort has been
demonstrated by the employer. It is the state’s responsibility
to assess good faith effort.
2) 13 the requirement of section 182(d) (1) ( ) that state
revisions contain a requirement to increase vehicle occupancy
rates by 25% a “condition or requirement under an applicable
implementation plan relating to transportation control measures”
for purposes of section 304(f) (3) and ‘why?
Answer: No. The requirement that the state submit an ECO SIP
revision is not “under” an applicable implementation plan, it is
part o the Clean Air Act requirement itself.
3) If an approved state implementation plan requires tflat
employers increase vehicle occupnacy rates by 25% persuant to
aection 182 Cd) (1) (9), dosa this requirement qualify as a
“condition or requirement under an applicable implementation plan
relating to transportation control measures” for purposes of
section 304 (f) (3) and why?
Answer Yes, if an approved SIP requires a 25% increase in
occupancy then section 304 (f) 3) would apply. However, the
-------
state may develop their SIP such that employers submit compliance
plans designed to convincingly demonstrate that compliance will
be met. The state may alec elect to submi a SIP whereby a
single compliance plan is submitted by the state on behalf of all
employers s ich that the trip reduction equivalent is met.
Employer liability is dependent on the state law incorporated
into the SIP.
4. Is an employer compliance plan, as described under section
182(d) (1) (B) and submitted pursuant to a state implementation
plan, a “condition or requirement under an appliacable
.implementation plan relating to transportation control measures”
for purposes of section 304 (f) (3) and why?
Artewer: The answer depends on the the wording of the SI?.
whatever the SIP says is the condition or requirement under an
applicable implementation plan, As has been pointed out in
earlier answers regarding the ECO program, an approvable SIP
could be written such that an employer would not be responsible
for submitting an individual compliance plan. As an alternative
approach, in its SIP, the State could be responsible for
submitting one complLance plan on behalf of all employers that
convincingly demonstrates compliance will be met.
-------
Employee Coxnznut e Options (ECO)
Questions and Answers
What is the Employee Commute Options (ECO) Program?
- The Clean Air Act requires employers with 100+ employees
at a worksite in 9 regions of the country to implement
programs to reduce solo driving among their employees
The program is sometimes referred to as the Employer Trip
Reduction (ETR) Program.
What is the object of this program?
- The intent of the provision is to reduce solo driving and
promote alternative modes of transportation in order to
reduce pollutants in the air that affect people’s health.
The provision will help reduce traffic congestion as well.
Why was this provision included in the Clean Air Act?
- Legislative history indicates that the ECO provision was
included in the Clean Air Act because even as cars are
getting cleaner, .people are driving more. As a result, the
benefits achieved through technological solutions are being
undermined by our current use of single-occupancy
automobiles. Congress felt that there was a need to address
how people travel as part of the solution to cleaning the
air and reducing traffic congestion as well.
Where is ECO required?
— ECO is required in severe and extreme ozone nonattainment
areas and serious CO nonattainment areas.
Baltimore • Los Angeles
• Houston/Galveston/Brazoria • NY/N.J/CT
• Milwaukee • San Diego
• Phila/Wilmington/Trenton • Ventura County
• S.E. Desert Modified AQMA (Mohave) • Chicago
11 States are affected:
• California • Indiana • Pennsylvania
• Connecticut • Maryland • Texas
• Delaware • New Jersey • Wisconsin
• Illinois • New York
142 Usc 7511a(d) (1) (5)
-------
2
How many employers and employees are affected by the ECO
program?
- Approximately 25,000 employers
- Roughly 9 million employees
What is required of employers?
- Employers subject to the provision will need to determine
their Average Passenger Occupancy (APO) by surveying their
employees over a week-long period to dete mine how the
employees report at work between 6 - lOam
- In most areas employers will submit detailed compliance
plans for eview by the State that are designed to meet the
target Average Passenger Occupancy (APO) determined by the
State (or Air District in California). The types of
strategies that may be included are: promoting and
subsidizing carpooling, vanpooling, transit, walking and
bicycle riding to work; allowing for telecommuting from home
and compresssed work weeks; providing preferential parking
for carpools & v npools; guaranteed ride home programs; and
parking cash out
What is the target APO?
- The target Average Passenger Occupancy (APO) is 25% above
the Average Vehicle Occupancy (AVO) for the nonattainment
area. 4 If a noziattainment area is divided into zones then
the target is a 25% increase above the AVO for each zone.
- A few States have a larger than 25% increase required of
some employers and a less than 25% increase required of
others si ich that the overall 25% increase for the
nonattainment area is met.
2 The AE’O determined by dividing the number of employees reporting to
the workaite during the morning commute by the number of vehicles in which
they arrive. A carpooler’s vehicle count is proportional to the number of
riders in the carpool (1/2, 1/3, 1/4 etc.) Employees who walk, bicycle, ride
transit or teleconimute from home count as arriving in zero vehicles.
3 An employer offers to provide a cash allowance to an employee
equivalent to the parking subsidy that the employer would otherwise pay to
provide the employee with a parking space.
4 The baseline AVO is calculated by dividing all conunuters in the
nonattainxuent area during the 6—10 am peak period by the number vehicles in
which they commute.
-------
3
- Most areas have a program that requires employers to
submit compliance plans for approval that are designed to
meet the target APO. An employer that fails to meet the
target APO should not receive a penalty if the compliance
plan was submitted, approved, and implemented on schedule.
- Some areas have adopted a performance standard approach
requiring employers to meet the target APO. Areas that have
this approach have a good faith effort policy such that
employers who don’t meet the target may demonstrate a good
faith effort to reach the target and therefore not be
penalized for failing to meet the target.
Will an employer already at or above the target APO need to
increase any further?
No, except in Maryland where an upper level cap protects
employers with high APOs.
What approaches are States using in their ECO programs?
EPA Guidance outlined four options that States could use for
their ECO prograi ts. Areas adopting the approach are
indicated.
- The Intensive plan review approach is based on a plan-by-
plan review that ensures each plan will “convincingly
demonstrate” that the target will be met. (Ventura County,
L.A., WI, IL, IN, NY, CT, DE, MD)
- The “set of minimum measures” approach lays out a set of
strategies required for employers. (IL & L.A. have programs
that approximate this approach but that ultimately fall in
the plan review category)
- The contingency plan approach requires each employer that
fails to meet the target to implement a stringent set of
strategies. (No states opted for this approach)
- The performance standard approach requires employers to
meet the target APO or be subject to penalties. The areas
adopting this approach have a good faith effort policy. (TX,
NJ, PA, DE, MD, & Ventura County)
When will employers begin the program?
— Many of the states have already received or will begin to
receive compliance plans from employers during 1994. Some
will begin implementation in 1995 and later. Contact each
5 1n some areas employers may choose between two approaches.
-------
4
state directly for an implementation schedule of their
program.
What is the status of the ECO program?
- All 13 ECO State Implementation Plans (SIPS) due to EPA
have been submitted and found complete by EPA.
- EPA has approved 4 ECO SIPs (IN, TX, WI and SCAQMD - the
greater L.A. area), Three proposals to approve programs have
been made by EPA. (CT, IL, and NJ)
What has EPA provided to the States for the ECO program?
- EPA issued ECO Guidance on December 17, 1992.
What agencies are implementing this program?
- 9 State Air agencies (or Air Districts in California)
(Ventura, L.A., San Diego, Southeast Desert, TX, WI, IN, MD
& PA)
- 5 State DOTs (IL, NJ, CT, NY & DE)
What will be the impact of the ECO program on employees?
- Employees will be provided options by employers such as
subsidies for transit (where it is available); ride-matching
services for carpooling; opportunities to telecommute or to
work a compressed work week; guaranteed rides home in the
case of emergency, preferential parking for carpools and
vanpools and cash as an option in the place of parking
provided by the employer as a benefit.
What is the best way to know what is happening in each State or
area regarding ECO?
- It is important to directly contact officials in each
State or Air District to obtain the latest information
regarding the ECO program. EPA has given the states and Air
Districts considerable discretion in implementation of the
program.
‘.\WF\DAT1 V AI1AFYS WFD print: lurch 3. 1995
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REPORT OF THE ECO FLEXIBILITIES WORK GROUP
CLEAN AIR ACT ADVISORY COMMITrEE
SUBCOMMITTEE ON LINKING
TRANSPORTATION, ENERGY AND AIR QUALITY
APRIL21, 1995
APR 28 1995
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ECO Flexibilities Work Group Report
REPORT OF THE ECO FLEXIBILITIES WORK GROUP
CLEAN AIR ACT ADVISORY COMMITTEE
SUBCOMMITTEE ON LINKING
TRANSPORTATION, ENERGY, AND AIR QUALITY
Why Was the Work Group Convened?
On March 15, 1995, EPA Assistant Administrator Mary Nichols asked a work group of
the Clean Air Act Advisory Committee (the ECO Flexibilities Work Group) to evaluate the
Clean Air Act employee commute options (ECO) program. Specifically, the work group was
asked to review the flexibility EPA has currently provided to states and employers
implementing ECO and to recommend any additional flexibility that can be granted under
existing law. The Work Group also has been asked to recommend whether and how the
statute should be amended.
The Work Group met on two occasions, once in Washington, DC, and once in
Chicago and held one conference call. One-half of the Chicago meeting was dedicated to
hearing informal testimony from major employers and from states or regions subject to the
program. The Work Group process has been too short to allow an in-depth evidentiary
evaluation of the ECO program. The Work Group has, however, drawn on the broad
experience of its members and on the detailed input of other commenters to reach the
conclusions expressed herein. Comments on the report can be provided to Karen Smith,
Designated Federal Official, U.S. EPA, 401 M Street SW, Mail Code 6101, Washington, DC
20460, or faxed to (202) 260-5155.
The Work Group report does not represent a final recommendation of the Clean Air
Act Advisory Committee (the “Committee”) or its Subcommittee on Unking Transportation,
Energy and Air Quality (the “Subcommittee”). In accordance with the Federal Advisory
Committee Act requirements, the Work Group report will be forwarded to the Subcommittee at
its next publicly noticed meeting on June 1 • 1995. If the Subcommittee approves the report, it
will forward it to the full Clean Air Act Advisory Committee for consideration at its next publicly
noticed meeting on June 2, 1995. At that time the Committee will decide whether to endorse
the report and submit it to EPA for formal consideration. This report does not constitute EPA
policy.
1. Letter from the Honorable Joe Barton, Chairman, Oversight and Investigations
Subcommittee, U.S. House of Representatives Committee on Commerce, to the
Honorable Mary D. Nichols, Assistant Administrator, U.S. Environmental Protection
Agency, Office of Air and Radiation, dated April 3, 1995.
Clean i ir Act Advisory Committee DRAFT — April 26, 1995
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ECO Flexibilities Work Group Report
What Is the ECO Program and What Has Been the State Experience with Such
Programs?
The ECO program was required as part of the 1990 Clean Air Act Amendments.
Congress provided that state implementation plans (SIPs) in severe or extreme ozone
nonattainment and in serious carbon monoxide nonattainment areas require employers 01100
persons or more (hereafter “major employers”) to increase average passenger occupancy
(APO) during commute periods by 25 percent. This measure was apparently patterned after a
similar provision in the South Coast Air Quality Management District (SCAQMD), which had
been in place for approximately two years. The language in section 182(d) of the Act
suggests that Congress believed that employee trip reductions, together with other
transportation control measures, would be necessary to offset growth in emissions
attributable to growth in vehicle miles travelled (VMT) or vehicle trips (VT) and that sole
reliance on other mobile source emission reduction measures would not be sufficient to
achieve the Act’s progress and attainment targets. By including the ECO program as among
the other section 108(1) TCMs, Congress also contemplated that EPA would review the ECO
program to assure its effectiveness and assess its cost.
Employee trip reduction programs have been in place in some areas for sufficient
duration to judge their overall performance. While there are some impressive examples of
success in individual cases (i.e., circumstances where employers have increased vehicle
ridership at reasonable cost), the majority of employers subject to such programs remain
materially short of APO targets despite significant expenditures. In the South Coast, for
example, of the approximately 5,000 sites subject to a comparable program, only 14 percent
have met their target ridership levels, despite a regional annual expenditure of approximately
$162 million, or $43,000 per ton of pollutant reduced. What is particularly notable are
2. CM § 108(f)(2); 182(d)(1)(B).
3. Based on updated 1995 data, the SCAQMD trip reduction program has reduced
reactive organic gas (ROG) emissions by 4.8 tons per day, oxides of nitrogen (NOx)
emissions by 4.1 tons per day and carbon monoxide (CO) emissions by 38.8 tons per
day. In 1992 Ernst & Young calculated a regional annual cost to the South Coast of
approximately $162 million. An annual cost-effectiveness of approximately $43,000 per
combined ton of pollutants reduced is calculated by dividing the $162 million by a
combined annual pollutant reduction of 3,744 tons (determined by multiplying the daily
combined tonnage of 14.4 tons by 250 days. CO emissions are typically divided by 7
when combined for the purpose of calculating overall cost-effectiveness).
4. The Work Group did receive information about a number of successful local programs
that were not required by the ECO mandate. These include programs in Kitsap
County, Washington; Fort Worth, Texas and Maricopa County, Arizona. In addition,
one member of the Work Group submitted information regarding the potential benefits
Clean Air Act Advisory Committee 2 DRAFT — April 26, 1995
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EGO Flexibilities Work Group Report
examples where the same company manages multiple sites and expends comparable levels
of effort at each, only to succeed in some circumstances but fail to achieve the required APO
in others.
The evidence suggests that many employers exerting best efforts may still not be able
to achieve the statutory ECO objective because employee trip behavior is determined
primarily by factors outside the employer’s control. Such factors include the availability of
alternative (high-occupancy) travel services, the cost and availability of parking near the
employment site, and the close common proximity of residential or work sites. It is not
surprising that many of the most significant success stories revealed favorable conditions
among these factors. By contrast, the most comprehensive study of the SCAOMD trip
reduction program to date concluded that there was very little, if any, correlation between an
employer’s expenditures and its degree of success in meeting the ridership targets.
Why Do Many Major Employers Resist the ECO Mandate?
Employer resistance to the Clean Air Act trip reduction program stems largely from the
apparently accurate perception that, to a great extent, employee trip reduction behavior lies
beyond their control. There is strong resistance, therefore, to the mandatory nature of the
provision. On the other hand, employers clearly recognize the relative value of increasing
carpooling and other high occupancy travel modes within the limitations of their own
circumstances. In fact, despite criticisms of the ECO program, it has significantly increased
employer interest in the benefits of such programs by raising public awareness of the
connection between commuting and air quality problems. Therefore, it is also not surprising
that many employers have invested voluntarily in ECO strategies, by implementing ridesharing
incentives, compressed workweeks and telecommuting, among other approaches, because
they are often good for business, employees and the community at large.
Many employers observe that employer responsibilities should be tailored to their own
circumstances. They can significantly facilitate trip reduction in a variety of ways, including by
- providing information about carpools and available alternative transportation modes, by
providing preferential parking for van or car pools, by providing bicycle racks and showers for
cyclists, and by restructuring employer commute subsidies to expand choice about how these
are used. Many employers fear, however, that under the ECO program they would become
the guarantors of their employees’ driving decisions. They specifically object to the idea that
of a successful trip reduction program, as would be required under the ECO program,
in the State of Wisconsin, including 3.2 tons per day each of volatile organic
compound ( ‘JOG) and NOx emissions and 30 tons per day of GO, as well as many
other environmental and health benefits.
5. Ernst & Young 1992.
Clean Air Act Advisory Committee 3 DRAFT — April 26, 1995
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ECO FIexib,Iities Work Group Report
they should be responsible for providing significant financial incentives, beyond those now
provided to employees, as a means of altering employee behavior, particularly when the
evidence suggests little correlation between such investments and increased ridership in the
absence of other favorable conditions.
Employers are also concerned about potential liability for failure to achieve ECO
program goals. In the first place, employers do not understand what actions are required to
satisfy the “good faith” test articulated by EPA as satisfying their obligations under the
program. Furthermore, although EPA has stated that it will not enforce the ECO program at
the local level, employers appropriately fear that they could still be subject to enforcement by
the state or by third parties either under state law or under the Clean Air Act if a state
imposes employer commitments as part of its SIP. Finally, employers are concerned about
potential future changes in EPA policy that could later make them subject to liability under the
program.
What Are the States’ Concerns About ECO?
States subject to the mandatory ECO program are, of course, concerned about the
appropriateness of requiring major employers to adopt and implement plans when they often
lack the ability to change employee commute behavior. Furthermore, states often lack the
resources to review and enforce each major employer’s trip reduction plan.
States also wish to ensure that their SIPs will be approved if they adopt different trip-
or emissions-reduction programs in lieu of requiring each major employer to increase the
APO of its employees. They are developing innovative alternative programs that are likely to
be less costly and more effective. Some of these programs will be implemented on a regional
basis and will rely on voluntary, rather than mandatory, employer programs. States need
assurance that such approaches can be approved and that they will not be sanctioned for
deviating from federal guidelines.
Finally, some states do not fully understand EPA’s enforcement policy relative to local
ECO programs.
What Does Current EPA Policy Provide?
Current EPA policy implicitly acknowledges many of the employers’ and states’
concerns by providing means for e1ief from strict performance with the ECO program.
Specifically, it deals with this problem by interpreting the statute to require employers or
states to submit plans designed to achieve the target APO increase, but not to impose any
penalty if success (i.e., the actual 25 percent increase in APO) is not fully achieved. The
adequacy of plans and efforts are measured by their ugood faith.” Good faith is determined
by each state.
Clean Air Act Advisory Committee 4 DRAFT — April 26, 1995
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ECO Flexibilities Work Group Report
Current EPA policy also allows regions to take over the primary responsibility from
major employers by enacting a regional trip reduction plan in which employers can
participate. These regional plans, in essence, average trip reduction performance across all
trips within the region. As is required of employers in establishing the good faith of their
efforts,-states that undertake the primary trip reduction responsibility must make a convincing
demonstration that its plans will achieve trip reductions equivalent to those that employers
would achieve.
Current EPA policy does not allow employers or regions to substitute emission
reductions for trip reduction efforts, although EPA policy does allow credit for the use of clean
fuel vehicles.
Current EPA policy defers to the states the determination of whether individual
employers can be liable for a failure to submit an indMdual plan, to implement one or more
plan elements or to achieve the targeted APO. Employers could incur liability under the
Clean Air Act if the state imposes such requirements as part of its SIP and if EPA
subsequently approves that portion of the SIP. Such liability could include actions brought by
third parties. State law would determine whether an employer could be independently liable
under state provisions.
is Current EPA Policy Sufficient?
The Work Group concludes that current EPA policy is deficient in some important
respects. In the first place, with the exception of allowing credit for clean fuel vehicles, it does
not expressly allow employers to provide equivalent emission reductions when they believe it
would not be feasible or cost-effective to reduce trips. Second, it does not provide sufficient
notice to the states regarding the criteria it will use to approve alternative state programs.
EPA statements that good faith efforts are sufficient and that EPA will not enforce the program
at the local level (i.e., enforce individual employer plans) have confused some states and
employers. Furthermore, there is legitimate concern that, because EPA policy on this
program has not undergone notice and comment rulemaking, it remains subject to changing
interpretations in the months and years ahead. Finally, current EPA policy lacks sufficient
clarity regarding the extent to which states can receive credit for voluntary programs, which
achieve surplus trip or emission reductions by including other employers, other areas, or
other trips than those subject to the ECO program requirements.
What Changes in EPA Policy Does the Work Group Recommend?
EPA should revise its policy to expressly allow states to demonstrate equivalent efforts
or performance based on emissions as well as trip reductions. Attached to this report are
Clean Air Act Advisory Committee 5 DRAFT — April 26, 1995
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EGO Flexibilities Work Group Report
several examples of alternative programs, many being actively developed by nonattainment
areas throughout the country, that could be adopted by states to meet, in part or in whole,
the Act’s ECO requirements. These alternative programs include investments in clean fuels
and clean vehicles and in related infrastructure, the use of remote sensing to identify and
repair gross polluting vehicles, the implementation of state or regional (rather than employer-
based) rideshare programs, the purchase of emission credits, the creation of certain state or
regional educational programs, early vehicle retirement and a variety of other innovative
strategies. These efforts will advance air quality objectives and deserve active EPA
encouragement and approval. The Work Group recommends that EPA continue to work with
the states over the next few weeks to clarify the approvability of these valuable innovative
strategies.
if EPA accepts the Work Group recommendations, EPA policy should specifically allow
the following flexibilities:
1. State or Reqional Plans . States or regions may take over some or all of an
employer’s res onsibility under ECO by implementing a state or regional trip
reduction plan. Such plans must “convincingly demonstrate” that they can
reduce trips by the amount required (i.e., commensurate with a 25 percent APO
increase), but neither the state nor any employer would be penalized for a
failure to actually achieve those levels. The adequacy of efforts would be
measured by good faith.
2. Emissions Equivalence . If authorized by the state, an employer can substitute
equivalent emissions reductions in lieu of submitting a plan to increase APO.
States may determine what constitutes emissions equivalency based on good
engineering practice.
6. These attachments are draft concept papers only. The Work Group intends to
continue to refine these papers over the next few weeks and to submit final versions
to EPA at a later date.
7. Some members of the Work Group expressed a concern that states should not assign
such responsibility to the metropolitan planning organization (MPO) without providing
appropriate funding. Others expressed the view that employers should be required to
participate in any regional trip reduction program by undertaking a minimum level of
support (e.g., by providing ridesharing or transit information to their employees).
8. Some alternative emissions reductions strategies provide greater reductions in some
emissions but fewer in others. The state should specify the rules for equivalency in
such situations so as to ensure that the alternative approach does not interfere with
reasonable further progress or attainment.
Clean Air Act Advisory Committee 6 DRAFT — April 26, 1995
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ECO Flexibilities Work Group Report
3. Good Faith Efforts . States should retain the flexibility to define or recognize
good faith efforts as sufficient in lieu of having to actually achieve any
designated increase in APO. The Work Group did not attempt to identify a
“one size fits all” set of good faith efforts, because it concluded that appropriate
efforts are too context-specific and would best be determined by the stateft 1
4. Credit for All Trip Reductions . States or regions should be allowed to receive
full credit for the reduction of any trips, whether work-related or not, and for
participation of any group, including driving age students, in a trip reduction
effort that results in reduced trips and VMT.
5. Seasonal Plans . States, regions or employers may implement seasonal, in lieu
of annual, programs to encourage trip reduction. The Work Group also
recognized the potential benefit of episodic strategies, but considered
programs that rely exclusively on episodic measures too uncertain to be
approved because of the difficulties of predicting ozone episode days)
There was also some concern that exclusively episodic measures would not
result in the development of the necessary infrastructure to support long-term
trip reduction.
Should the Act Be Amended and, If So, How?
While members of the Work Group concur with the express Congressional intention
that emission increases caused by growth in VMT are important to address to attain and
maintain the Act’s health-based air standards, the ECO experience suggests that the
responsibility for reducing trips or trip-related emissions should not be borne uniquely by
employers. Instead, success in reducing trips and trip-related emissions will require an
integrated strategy that involves many factors in addition to employment. It is not surprising,
given the difficulty of achieving APO increases when the necessary conditions (i.e., adequate
alternative transportation, high parking costs, residential and job clusters that facilitate
ridesharing, and so on) do not exist, that the administering agencies and affected employers
have sought mightily to find alternative ways to reduce trips and/or emissions. EPA policy
initiatives have provided some of the necessary flexibility to allow such alternative approaches
9. Some members of the Wor(c Group felt that good faith efforts should reflect evidence
of improvement in APO. Other members also suggested that the state should set a
ceiling or off-ramp level of effort, beyond which additional efforts would absolutely not
be required.
10. The Work Group discussed several e ,isodic measures that could be approved,
however, as supplements to other seasonal or annual measures.
Clean Air Act Advisory Committee 7 DRAFT — April 26, 1995
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ECO Flexibilities Work Group Report
and, as recommended above, additional flexibility could offer much more assistance to the
states and affected employers.
While there appears to be sufficient support in the statute to allow EPA to approve
equivalent programs, and thus an amendment is not absolutely necessary, it may be
preferable for Congress to articulate its intention when EPA is faced with a circumstance
demanding such an expansive reading of a statutory provision) .
Based on the Work Group discussions, there is not a clear consensus as to what form
an amendment should take if Congress were to amend the Act. There is a consensus that
state or regional approaches to trip reduction would be more effective and less burdensome
than an employer-based mandate and that the Act provides sufficient flexibility for EPA to
approve such programs. T ’ “ is also evidence in California, Texas and elsewhere that
strategies that allow emplo . to achieve equivalent emissions reductions (i.e. remote
sensing, clean vehicle investments, Green Lights, transit investments, etc.) receive strong
public support, because the alternatives can be pursued voluntarily (based on an employer’s
individual circumstances), are understood by the public to reduce emissions, and are
considered more cost-effective. While the Work Group believes EPA has the authority under
the Act to approve emissions equivalency programs, some Work Group members believe that
an amendment clarifying EPA’s authority to approve equivalent state programs, based either
on trip or emissions equivalency, may be desirable.
The Work Group is divided on the question of whether it would recommend an
amendment that would make the ECO program voluntary without providing for emissions or
trip equivalency. Some members believe that making the program entirely voluntary would
remove a valuable incentive for regional trip reduction; although these members do not
believe that the responsibility should rest exclusively with employers. These members stated
that there must be some incentive to ensure that employers would continue to provide the
educational and other minimum assistance necessary to make a regional program work.
Others disagreed and expressed the view that businesses for whom trip reduction strategies
Ii. One can draw a useful analogy to EPA’s post-i 987 attainment predicament. The 1977
Amendments did not specify what EPA should do if the 1987 ozone attainment
deadline was not met. During the years between 1987 and 1990, EPA did its best to
effectuate Congressional intent in the absence of express direction. Congress later
approved significant portions of EPA’s post-i 987 attainment policy. Here Congress
has not expressly provided direction for EPA should it find, as we believe it should,
that the ECO requirements cannot be met across the board by major employers at
anywhere close to the cost and reasonableness boundaries certainly contemplated by
Congress when it enacted the provision. There is evidence in the Act (e.g., in
§ 182(d)(1), 187(a)(2)(b), and 187(b)(2)) that Congress considered emissions
equivalency to be the superior test of state compliance when trip reduction could not
be achieved and thus to support the greater flexibility recommended in this report.
Clean s Jr Act Advisory Committee 8 DRAFT — April 26, 1995
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ECO Flexibilities Work Group Report
are cost-effective (e.g., because they reside in locations with favorable conditions) already
invest in trip reductions voluntarily because it is in their interest to do so.
A second concern was that a completely voluntary program would disadvantage other
sources (e.g., manufacturers) who would, in all likelihood, be required to pick up the shortfall
in emissions if the emission reductions from the ECO program were lost aftogether.
Several members of the Work Group pointed out the potential benefits of providing tax
credits and other financial, transportation and land use incentives to encourage, rather than
mandate, trip reduction. Federal statutory provisions that create such positive incentives
could be quite valuable in assisting r onattainment areas in meeting their air quality targets.
12. Although emission reductions from ECO are tiny, they can still represent a burden to
those responsible for achieving them. As noted above, the SCAOMD estimated that to
date its ECO program has achieved a reduction of approximately 5 tons per day of
flOG and NOx. The SCAQMD has committed to reduce another 5 tons per day of
those pollutants before its attainment deadline.
Clean Air Act Advisory Committee 9 DRAFT — Apnl 26, 1995
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ECO Flexibilities Work Group Report
The Following Work Group Members Concur with this Report
Brian Betlyon
Norm Emerson
Steve Gerritson
Al Giles
Tim McGough
Sarah Siwek
Merrylin Zaw-Mon
The Following Work Group Members Concur with this Report, but Have Submitted
Additional Comments
Dick Ayres
Carla Berroyer
Steve Del Giudice
Carolyn DeVinny
Keith Duval (for Richard Baldwin)
B. Thomas Henderson
Nancy Kruger
Robert Nicksin (for Peter Jonker)
Peter Quinn
Cathy Wasikowski
Rich Weaver
The Following Work Group Member Dissents from This Report
Ron Burke
The Following Work Group Members SubmItted Independent Statements
John Epling (for Janet Oakley)
Michael Replogle, with concurrence from
Ron Burke (with comments)
Bill Goldsmith (with comments)
Chris Miller
Dave Rivkin
Tad Widby (with comments)
Clean Air Act Advisory Committee 10 DRAFT — April 26, 1995
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ADDrnONAL. CONCURRING COMMENTS
OF RICHARD E. AYRES
I concur in the fundamental analysis and recommendations of the ECO .
Rexü it1es Workgroup.
Based on the testimony the Committee heard, ho ver. I take a
somewhat less pessimistic view of the potential for employer managed programs to
achieve significant increases in ‘average vehicle occupancy.’ As I see it, employer
concern about the ECO program is iven heavily by a fear that if the employer does
not achieve AVO targets ft will be subject to some kind of penalty. Given the
employers inability to dictate the commuting habits of employees, this is an
d ndable con
I therefore wish to highlight and expand upon one of the Report’s
recommendations that addresses this fear directly and completely, what the report
lk ‘purchase of emission credits.’ Report, p.6.
EPA is currently developing regulations that will allow States to put into
place ‘Open Market’ emission trading systems. In an ‘Open Marker system. emitters
wW be able to generate salable emission reduction products’ by redu ng their
emissions to levels lower than required. These products wifl provide an alternative
means of conçliance for entities with high compliance costs.
A number of companies subject to the ECO rcgram have already
indicatad their Interest in the use of emission credits to provide compliance insurance.
To inclement such a program, they would first calculate the number of tons of
emission reduction that would result from an ECO program that met the statutory
objective of a 25% increase in AVO. The company would then purchase this amount,
in tone , of Tàssion credits.
At the end of the acne season, the company would determine its actual
sucoess in increasing AVO, and the shortfall, in tons. It would then provide
emission credits equal to this amount to the State, retaining the remainder for future
use, or returning them to the siçplier.
One of the most attractive aspects of allowing the use of emission credits
in this manner is that ft can be done without statutory change. EPA need only darify
that ft s approach meets its good faith’ test under existing policy. I would therefore
urge the Clean Air Act Advisory Committee to recommend that EPA darify its policy to
reasstse Stares and employers st ject to the ECO pro m that the use of emission
credits in this wey meets the Agency’s ‘good faith’ test.
.-RichardE.Ayres
WO 9S:8t S56t’9 ’Pø
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::. E A L—;. i’ :5 ’
R- igg5 j4:44 Fl M i ar op. a P. 10 i313E6B4531 P.02
‘IlOnoLs Department of Transpcrtation
230G Soith Dfrksen Ferkway I Springfield, lliInais/62784
AprUZQ, 1955
Ifr. Baa Wyman Ms. Cecilia Eatelar
LaUar & Welichis U.S. EnWonmerila. Protection Agency
S33 West PVth Sheet 401 M 8lreet SW, WT 36
Los Anr3sles, CA 90071 WashIngton DC 23400
Dear S and Cecilia;
I went is tike this opportunity to compliment you for the e sk ntJobs you have
dons as Co-cha s of the ECO FlesibBilea Workgroup. You w ro pen a
dimcsgt task In eliciting and synthss Jng the many divergent vi i wpolntz
r.gardL this program across the coun’q in a very short per lot of time. You
accomplished this task In afin. manner In ins draft report
One ‘d’ ng that became obvloLs through this process Is that the cemponenla of
a “suecesdut program will vary dreinaticafly across the countr . Whit might
work ii California will not work In Msr)4erld and whatworke m l cse might not
work hi Which. It Is deer that unless the US EPAfeols that Ito in allow the kInd
of Iadftids necessary accommodate this variety of needs witi eut openhig the
Clean AirAct, then Ccsusnimest.
it has also be e clear through this process that mandates D i i employers are
riot the answer. Trip mduciI mandates placed on the stetes ire unBisty to
meal with mud more success. Howver, the workgroup wes resented with
evidence that vobinthry programs can be successfuL I believe diet this Is the
key. iWnais is airu y In the process of Irnplemeu 1ng a volunti i y episodic
program. We would lihato lake a looli at a package of diflhrerttypes of
vokr*taty prograrris , kiduding sri episodic program as a ubstjt its for the
mandatory ECO program in lilkiols
At the uuime tim., If 4enslvs roporting requirements are placed an such
programs inorderfortiwn is be approved byUS EPA, then stenapro am
wt di Is Identified as “voluntary’ Is du insd to failure. A po whIch allows
vohteafy j i ms but requfras such progi to Include a mu j’.datod eat of
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— —- •— —-. .r
r:..’: tr-. •.
PR& t9% t4:44 M DQT OP 1 I P TC s 3t3G 84S31
.n&Ms.C . EstoI .no
Pus 2
m.uurest across the c .,unty Is no more
sec.p I. StItU5 •— _ . Usdoss USEPA can embrsci the kind of ma!
squired to approve a VuZy Yokmtar3f program, thin ti Isw iouId be
Sincerely.
Carla J. Berro r CN.f
Ui’ban Program P anrdn
TDT P.
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?1 ‘1 im
THE PRINCE GEORGE’S COUNTY GOVERNMENT
(301) 952.4436
County C3un&
Hw ng Impaired STEPHEZI J. DEl. GIUDICE
TOD 301/925.5167 Council Mamba , 2nd Distr’ici
April21, 1995
Ms. Cecilia Estulano
401M St. , SW. WI 936
Washington, D.C. 20460
and
M . Robert Wyman
Latham & Watbini
633 WestFiñh St.
Los Angeles, CA 90071
Dear Cecilia andBob;
I write to express my support for the Report of the ECO Fle dbilities Work Group, on
which I had the pleasure to serve.
I do wish to express a ftw observations about some of the Issues discussed in the report.
While Icurrently serve as Chairman of the Association of Metropolitan PlRIIth g Organizations
Qf the National Association of Regional Councils, I must note that my support and opinions are
my own and do not reflect organizational policy; the policy Boards of neither organization have
reviewed this document.
The movement toward state or regional programs to reduce tripe or mobile emissions is a
promising development. I must strongly urge, however, that states which implement regional
programs through MPOs must be required to adequately fond those organizations and efforts.
One measure of good faith for such programs should be the degree to which transportation
finding is dedication to the development of infiutucture neceuaz7 to reduce trips and mobile
emissions.
The t stiznony at our Chicago meeting confirmed that educational campaigns are an
essential predicate to the success of any trip or mobile emission reduction program, regardless
whether it is employer basei , regional, mandatory or voluntary. EPA should revise itS Curr:flt
policy to give credit to public or private ftanding for these programs.
County Administration Building — Upper Marlboro, Maryland 20772
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APR 21 ‘95 10:36 P .3
page 2- Estolano and Wyman
Finally, with regard to the issue of’ e” on equivalences a strong preteence should be
given to mobile emissions, as opposed to point source emiurnns, as a substitute for trip reduction
measures of performance. If regional programs are a1lowed every employer should be able to
contribute with relative ease, either directly by participation or indirectly by investment in
alternative regional strategies.
I want to commend your efforts and excellent work with our group.
Sincerely yours,
-a MLe Q
Stephen . Del Giudice
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@4122’Y1955 15:11 3103a13e36
T}-Z DEVINNY GROUP
PAGE S2
TO: ECO FLEXIBJLITJXS WOES GROUP
FROM: BOB WYMAN AND CEC IA ESTOLtNO
RE: WORX GROtP REPORT
Here it is, at last. Now is your ch2iwe to:
CONCUR______
CONCUR WITh COMMENTS -
DISSENT ______
The DeVinny Group concurs with the Work Group Report but requests a provision for
the employer who elects to have, or continue to have, an on-site tiip reduction plan
rather than subscnbe to such options as a regional program, emission equivalence etc.
It is therefore suggested that the following be added to the Good Faith Efforts piece on
page 6:
Employers could elect to have an on-site trip reduction plan or to contInue with their
àurtent plan. Such programs would be tied to a good faith effoif’ and not to specific
targets and could involve reduced trips, VMT and/or emissions equivalence. Emphasis
would be placed on recognition, information and education as the major tools to
encourage involvement in this program. Such administrative procedures as
surieys, forms, plans, filing fees, monitoring and tracking would not be
:OR
DATE; APRIL 21, 1995
1995
-------
:. —:E—
04/25/95 12:71 e es e45 i VENTURA CO APCD
VENTURA COUNTY (CA) APCD
COMMENTS ON RBPORT OP
THE ECO PLEXIBIL FwS WORK
GROUP
tkvetob1efc’ i’:
1, Pigs 8, &stpzigcspb. IdonotbsUveibeufaM ?’.. .
:z lcI it support t’ the ste to aUow EPA to CD,ow ul 1snr m wns,.
sccutswly ic ccu d hiw of die ACL Red Coi i us bien&ed allow
__ 187(bX2)), It
2 Page 9. 1 believe that atrotiger emphuls ihould given to the fat: that pitini
so ntca would be exp.cte to pick up shortfalls In emlssio.i reductioai
rsductloaa frog BCO pzova do not niaisrli”e .
B S €4 144L O — —
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64/24/1S85 1S t6 512—475—1558- fl L 0? PA 3
10: Mzialle D e
lob
1RO t Dantal MGnroyd : Torn Hmdsnon :
RE: Rçon
41 t 4p l 3 1PS
U) ’omo e , 1 Torn HMdrto siozabZeto Wew t?ds doamri since I: anfwd q’esr m1 inomlq en 1 sr
After wM Torn on m. e’ei hone ob. mas do rnu, he can i4y on gr V thai ifiE no
d ntfl cant cftanga frair ha rqo,r hi saw last iseet
have ‘en ns pZ call no w S12-4634 .
a75 i 58 O —249S O6:1@P POC3 noa
-------
Comments from Nancy Kruger, STAPPA and ALAPCO
STAPPA arid ALAPCO concur with recommendations that call upon EPA to
continue to exercise its administrative authority to amend existing ECO program
requirements to provide substantially increased flexibility to states and local areas
implementing ECO. Moreover, the associations concur with the conclusion that there
appears to be sufficient support in the Clean Air Act for such flexibility, thus obviating
the need for statutory amendments.
-------
,iR 24 ‘95 VIRON’V1T & .FETY P.3
Thi 6iu c mpiny
,I li I
&w 4 d,
Za4*av
April 24, 1995
Natili. Dob .
Envrcnntcntal Protiction Agency
Via FAX 31366i.4531 ___
I-,-. ,
Bob Wy m an
Lsth.m& Watkins
Via FAX: 213.8911763 14011
De Ms. Dab!. and Mr. Wym n __
Sonth n Calfhrnia Ges Company (SoCalGes) concurs - with onunents - ML. 2?
r. ardlng the Work Oruup rcpcxt W d April 21,1995. id rnj ..as,,
UIIMIIJ
Socaloes urges the Work Group to purina & po 11 ey allowing eq iv.1ont
emission ri du 1iuns only ftum mcbfle sources as an ECO comp lance
approach. Clearly, stationary sources should not again be made to bear the
burden of additional reductions due to the difficulty of achicvin mobile
rvduodan
In keeping with this allocation of burdens, we encm age the Wuk Group to
develop a policy that addreues the Issue of lntczpollutant trad1n so as to
encourage advancement of mobile s e technologies. Raduc1 g ROG,
NOx and CO q IuIons may be a tr ndcus cabalienge, but ta ino1a es do
exist that can make a real Impact within the mobil, source ‘ecto. A policy
that encot uges d val m nt of tha e mrthffe aaw trimnlogle; and
avoids burdening stationary sources, stands the best chance of it bievlng
ubr 1 emission rethactioms In the ysesa and decades to oom .
Thank you e the opportunity to comment on your work. As a aapar r
h.a lIy Impacted by the ECO pra um in the South ( oast Air Qialfty
Maengenign Dia ict, you have our full suppni’t en you seek out tltematives
to an espc vs and burdensome prO w
Sthcn e1y,
2t3 244 etei
04—24—ES 06;OiPb( P003 *oe
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:‘r r ‘
-- -:‘• -. --
04/21/98 10:06 PAZ 610 766 0626 O03
._ .
To: RobiitWyuiu
Peter Quini*
Re: Report of die ECO Plexlbilhiies Work f vnup
Date: AprIl 24, 1995
Commeiit In re’ Page 6,1. State or Regi ual Plani.
In order to fully and .ff.edvely r. ove the uiidmted aspuct o the ECO
Prop’am, the requiremeiit that “ ich pI ” must convincingly Lleinonstrate
that they cau reduce tT(p by the amount required (i.e. comm aurate wilL a
25% AVO Increase...) 1 ’ needs to be deleted as a reqwremant, tus providing
for full valuation of er is ’inn equivekrney.
, flR O 24I5 &0:OSAM P303 e34
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04/ft4/65 14:38 PAZ 110 718 06 q
To; Robert
Front: Peter Quinn
Report of the LCO FleiibIKties Work Group
Date April 24, 1 95
Comment in re Page 6, L State or Regional Plans
On Apiil 20,1995 we referenced fof the record the following:
“Two project deadline prevent me from par dpating in the Cl icago Meeting
of the worldng groups of the Energy, Transportetlon and Air ( uabty
Subcommittees of the C.AA.C.
I do, however, ask that you share with the woridag committee, iay concern thii*
a’ part of the process of amimig ECO program design flezfl 1 ilily that
options needing I gWative changes be cnnsldered.
Giving consideration to a fall range of creative soludons (Indullag LegJslidve)
may be the only way to flually release the regnl’ted communIt from the
burdea of the LCD program.
I look forward to hearing m you concerning further acthid of the worideg
group.”
In addidon I recommcnd that, in order tu fully und effscdvely ‘emove the
mandated aspect of the ECO Program, the requirenent that “.;ueh plans must
couvlPfII g1y demonstrate that thcy cen reduce ttlps by the am3uat required
(i.e. eomm,’ ,surain with a 25% AVO incresse. )” needs to be ieleted as a
requirezn thus providing for foil valuation of cmics½u equi ialency.
1—96% 610 168 0626 04—2 —95 02:38PM P003 *43
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t —25—; :: 6 rc @U2I8256 ?:e2!OC
Th t ipi e Free: L.gh W.i sr —2S— 5 4:15p p. 2 if 2
AMERICAN PUBLIC TRANSIT ASSOCIATION
MEMORANDUM
Natalie Dobic NT . t
(jl’!otUrgeej
[ J ction Required
I ]}io/ eUen
PROM: R ichWeaver [ JI orCo e si n e st
[ 1i provaiRa
D#IIE. April26,1995 11I Your1ufo
SUBJECr: ECO FLEXIBILITY
Co
A1IXU A?TA wee brought into the ECO Fledbility Woiidvg Group late in the pro em, we appreciate
the opporamityto ooi mcnt on the mpoat For the moat pafl, APTA co ira with the epcet and mçpoila
increased regi nal flevihilhty to implement the Employee Cotmuute Options Prog am. However, we
believ, that the program should not be entirely voluntary nor should it rely c i i equtvgienay as a
ine g ’.n f . du ons. The ECO pe am 2 5 nat only an cimesion red iction program but
even more inzportandy. a pn gram to o ct growth in vehicle miles travelled ani to urge people to
theiigc their drMng pauems. The need to o at VMT giowth is urgmt and neccasa y.
In addition, we do not agree t employee oo ute programs have been in place fbr oient dunLion
to inalce ajudgement on their suoc . several programs _ - showing promising ron Its. In ‘ 1clifkai, we
disagree with the repoit’s V at . rnAnt that many factors arc outaidc of the employ ?s ooefrol Many
en loyers provide free parking as a subsidy and we believe that equivalent benefits ;heuld be provided
to those who chooi not to th iUtC In flicfr p sonal vthicl
The rcpoi1 good faith” ooiwqt I promising but should take htto ooesideratLon th . fo1Io ng faotove:
1) A stateilooality is not acting in good faith if the area raises trarsit fares or reduoi transit
sczvioe;
2) an employer 25 not acting in good faith if it rct ic to a place with poor lrsnstt bioyow pedeatrian
connections and aooes&
We believe that ISTEA’S flexible fmi p programs should address these issues in a regional øoidn .
.1 PM D’
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04. .U’95 12:42 FA 202 457 0710 NARC F jOO2
J%IALRC 0 National Assooiation of Regional Councils
,.. S. .. . , . t d ..
.
4 J .4
April 21. 1995
Ms. Carol Browner
PATRICIA TIC
t . r AdministTator
C rY A I M VA U.S. Environmental Proteci.ion Agency
NWtiSffi Wg’ria PDC.
Anwdale 410 M Street, S.W.
I oxb ’
W&Ihr COG. Washington, D.C. 20460
Wa DC
_______ Dear Ms. Browner:
Vh5T t
5C! HAMPtON
‘ ‘ ‘ The National Association of Regional Councils (NAR.C) represents substate,
1 iam Caufly, TX
N m Con ai Ts COG. multijuiisdictional public agencies that are designated as Metropolitan Planning
D a rtW r i
___ Org ni ntions (MPOs) under the Federal-Aid Highway Act and Transit Act, as amended.
S ftd%fi ‘ “ Under the provisions ofISTEA., MPOs.. working jointly with state departments of
ROOERT NOWARD
uiw ansportanon., have enhanced responsibilities for u ansportation planning and
CITy u S iUe. KY
c p , * progranunmg, and under the Clean Air Act Amendments, have responsibility for erisunng
confomüty of transportation plans and programs with State (air quality) Implementation
Owen 5C O. KY
Plans (SIPs)
‘‘ ‘ At the tnvItaxlon of EPA, NARC participated in the Employer Commute Options (ECO)
MILTON MA (
Pre aaJu p F1exibili es Work Group wiuich was asked by EPA to evaluate the ECO proçam and to
Wayr. Cau. y, MI
recommend additional flexibility that the group believed could be granted under current
C dIOf& M lL law. We would be unable to endorse w proposal for revising the ECO program wbich
would not be consistent with the following:
___ • NARC’S current policy position on the Clean Air Act’s ECO requirements.
.ioiia w. ut o Earlier this year, the Board of Directors of NARC adopted, upon recoTnni ndatIon
Wa bn mfl.OC of the NARC Air Quality Task Force. a policy position on the Clean Air Act s
ECO requirements. We believe that the Clean Air Act’s requirement that severe
and above non-attainment areas implement ECO programs with mand.aioiy
employer par cipation provides marginal emissions reductlons benefits.
Therefore, the members of the Board unanimously agreed that the ECO program
should be made voluntaxy for all non-attainment areas through an amendment to
the Clean Air Act However, any such program should only require volurilaiy
participation by employers.
• NARC applauds EPA’s efforts regarding fleiibllity. We applaud EPA’s
efforts to give greater latitude .mder the siatute as is currently i force We believe
that this means of seeking a’ aecommodañon of the prarflcal need in non-
anaizunent areas is a model of how the Administration should administer the ennre
provisions of Title I of the Clean Air Act
17 ø K S ’eat, Nw., ca i3 o • Wealuingean. D.C. 20C08 • 202/457.0710 • FM: #0#/2BS-5352
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:::‘s :: ; :: — • jr- .
_ _ . z ..‘J’_ •‘._ r.&. ::vL :.‘
— 3 22433954 N4 UJ’G ASSN o.ac 3 e3
j * 1 MERICAN
J mLKifkwc LUNG
.SSOCtAT1ON.
P4 O W. W.Iit Bbt
P.? .lL Is .II7I
(312) 14)-2
kEUIZZU•3U4 dII I 0
LORANDUM
Ap14125, 1995
FROM: Rnn White, American Lung Association
P on flurkc, ALA QtM potitan Cbice o
TO: ECO Fledbili’Jes Work Group
RI: D n’i” g Opinion on the April 21 Draft Re ort of the ECO
FL i e. Woik Gros
Tb. Final Se taa (“Sbo ld the Act Re Aaand.d and, L so, a.wr) Sb.uld
be Ddet flannuac It Goes Uqsnd the West Grnap’s linden
If this re n ri ply reflected the proc.ed p of the Work 3roup during its two
subatsaths mesthigs in Wubiogton, D.C., and Chvago , W I; would
cntbuaiutically co w. Indrrd , up until its find c1ioe , tL Report is an
socurute 1epfOa-nIut’b ,’t of the Work Gcsrp laudable offer .s to address its
nisdan: claris ourr ECO lids. and 1dantl r n c . In panlnilsr, din
Work Groups . re enditions d d on pages five set a p i would
witv ’ ” y lacresse the fl bl iy and hepl r” ”4lhy of ECO. We bdi ’.
that state and rmgkinal ECO pro ame, an çpccacb advoct tad by ALA ftc nearly
one year, are especâafly promidog. M ylaed and Teias a e ahesdy e Ioring
tbisoptio
Unforemaesly, th. Report goes beyond the Work (iroup i ‘.áan sod the
scope of its nuance by addressing the çr on of whather be Act ihould be
mqmdod to eao fl iECO. Worse, the qu 1t was ues’ar on by the iil
Wart Clrwp, but Innvnl was mnip.cmmy rahrd dua is Apr 11 19 ca tonoo
osfl to review the Draft Report of the two su ntive mac.. bold n
Wsk gtciii D.C., l Chies o. The de iui si to inssi.
“ +t,usi d question was ur’- ’ ’iis.oil; Jiirs that w a unebie to parlidpazs
in di. eali, biduding ALA, were both bbd-dded end enit ad from this important
di —
WIA bII c.we Thus, first and foremost, we diseent b.cmzae the final seesi in imply does not
balon in the rep nt. As Car ii we imow, ncitl MaryT flc hal. or the Clean Air
- Act A Micry C c Fthtt (CAAAC) a3h to sddre& 11.0 A( 1i4r
- questioft Although Rspxess vs Rattan did, we 1 q a with the ri L dan
pjg the Work Group is ractly re ondble to or any othe. pesiou tadildo of the
L ’ A a biermrcby of the CAAAC. If dde is caso, then it shouLd bays bean stated up float.
L=—
1
, tWrI1 1 .u ian
3. 5 5% 3122433954 04—26—95 12:1 5pM P003 I3
-------
•: —::—g ij:5 L .: E—A!! A 5 ? IC
34/25/1995 11: 14 3122433954 I4 LUG ASSN QlIcA 24
Ontheothirland, MLNIChOISIOdthSCAAAC uooaWysskulto 4u iegtzon
n rilpOCle to Re tariveBarto s requNt. As thraiwe haow, thi ’h&’v not. If they did, it
omtsinly rcp enh . a a v1aioa to the eared n 1iuion .1±. Work Group ihut kould he undergood
by 5 g rnc ber b rc mab ve decisions we
The FInal Seedea Nh. Id B. Delded Pseaus. the A aee QlradoL Did Not It *I,,
Appropriate Couldirailea
The Work Group wis not msppossd to consid the Mnend3Ieot question it U. And whis it did,
it was u oim ed, it did not come up until e 11th hairs i sceis m th rs did not have a
chvio. 10 pirtis ts in the dii isa1oe. Tb. .vumz Indi ’ g to the Work Ore zp 3 s unscheduled
thso iicnofth1sismec beorp1s15od vsi tnor esthe) pril 21 DraftReport
wirts, the letter fi’m Rqreseesndve Barton so May ) J v ls.
tks April I8ThIftRepOtI (priorsathe*pdl 19con rancecsl.)statesthstthe
Work GroUp rt umai? .’A ’ .gneod1r. Act. (Tb. most e.cmut Draft Aepon murk aconrately
gets. that - -— mieitha’s of the Work Group ke this reoc am d tk ’t ) This is hi Iily
wapicicus lice the Work Group dly did not “ a reccenmenduthn puce to the
ounibrnsc. cul1 . 1. thor, it didn’t oven dirum the çmetien dwisg its ths.t ce At
most the Work Group ccnsidemd what is anmimeat should look ilk. I wI i it bapp a .
P jrthwmots, if die Work Grwp wu gousg t3 is.tder this as new inedussu it cviJd have been
onthe ageudathetheApd 11 m IIgIDCIIInsgO . AceardijigtodiePlnall:epoit,therseinnale
w corulduieg the s mirom qu i”n we. that Repre adve JO. Bartot asked us so do so 15
anApril3 toMwyNlcbcls. s.demmd c wsdcpiiortotb.
chirogo mrrIiug a we could have disa aed ft then.
A even if this new b i.hw was pus to Ike Work Orwp 15s soccptabl: - —-rn , the Work
Group should eat have deliberated the auiendm it çiMlnn s 1 ’ic* it g as . be i the soupe of the
Work Group’s miselen. lbs SeaL sso oa of Sb. Apr11 21 Draft liiuld be de tsd
The Rapofl Ne scte l it Meaden t ECO k P,bsuslbr a L.npTers. ite , but Indeed
Emphasiass Smatt Sh.*Ter. hels. . Riduedsus
ECO nt—4 A f . . .t a with long4.rm &t1i11 1 .* ‘$IJg md rea ninsnce plans by
niiiimI mg VØuJth that wau!d otherwise erode enuuians bsne u der ved from RPP and
. Nsri . g p1mn ECO I . gamily D & fr selàVifl$ Rasonuble further Piegresi
This, CrIIi I of ECO!$ mail ihon.sem as . benuSIs the aerk. D x Report should
r sot this theL For aoaipk , o ts I2 en psge 9 thonkt rend, ‘Althou jb nthdons
roduct J from ECO r b . IS ’.TI It th
TPA Dies P d sss Have the Authority to Approve Eulsels.. Equl iuleaq Program ,,
Although k Is La Approach that W edd Be Pursued
We luppout resotomsedidon 2 on p.s. 6 (Emissions Eqrávaleocy). ffow ver, itt. not clear
Ibet EPA has the so appvo th e . . types of pro , U staid m. p I. Tb. Work
Group i w4tdpd that EPA have the adhority, bet the Agency ailow
R.H%
-------
:2: . . !v :—. n .k.: ::i.:’32:3
S4/2 995 U: ,4 AI4UkG495NQ1 C P 5
FSI atS Wil, ?1ft 1,11 IU1 INtS
Tl a foothc&e seatel that the Watt Group bdi vui that ‘tho ECO r uirema Ii smiut be mit
saoes the board by m or lnyers at anywhere does to the coat and seaacaahIese We
diei gas with ihIa aa’” bces iac employsrs are ov ‘ ‘ d to d v rate a good 6ith
miii that is t cost probibitive. The gtaten1 wcuJd be ac wste if’reqw e ta’ is replaced
with ‘ObjIcsML ’
Iecsamsødadoi Nu bsis 2 sod 3, Pa e
Rqlace AVO’ wi th ‘MO.’
1.99% 3$22433054 04—25—95 I2:19P P005 13
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O4#tZl’9 5 12:42 FAX 202 457 0710
MARC
l OO3
A
‘ . 4 3E?
of Regional Councils
PATR IC ATtOE
C ity ol A is W’n, VA
No isrr W nisPDC.
An da
WuhàiW i coo.
Wa w n. DC
Fbv W P ni
BOO HAMPT l
T&iwn wny. TX
P ei C.nSiI Te 0G.
OaUWFoe Wc
Se W 4om•
ROBERT HOWARD
C yotWt n1IIe. KY
Gmsn Rhv Aia
sbom. KY
h, e a19 Pa tPv ”t
MILTON MACIC
PtcbaeJi e
W ne Coumy, MI
Soul oaot hW imn
c r I of G wngn .
Ds u
Eso thV
JOHN W. EPUNO
W. enn , DC
• NARC is concerned with suggestions to shift re ponsibility and liability for
the ECO Program to the MPOs. We are concerned with proposals to ransfer
employer responsibility under ECO to MPOs under a regional tip reducuon
approach. This proposal merely shifts responsibility for the program from one
partvto another. it may make MPOs vulnerable to legal actions •hallenging the
adequacy of their monitoring activities. Further, such an action could challenge
the methodology used by the MPO for assessing the quantitative emissions
reductions mibuted to the ECO program. This is a particularly troublesome issue
since there appears tc be no standard methodology for making s.zch assessments.
Moreover, we are concerned with the potential shift of third party Liability to the
MPO.
NARC is concerned with th resource implications of a regionwide approach.
In accordance with suggestions for a regional approa& MPOs ‘ oul take ober az
employer’s responsibility under ECO by implementing a regional trip reduction
plan and program. If the other reservations about this approach wcre corrected.
we are concerned with the resultant funding and staffing resource uriplicarions.
The assurnpticn that necessazy funds could be transferred from the transportation
capital program is questionable. Most metropolitan areas are earnestly seeking
additional capital funding and there is little support for transferring capital funds
to increase the financial contribution for planning and monitoring activities.
Again, we applaud EPA ’s efforts to seek additional flexibility. We continue to oclieve that
there are broad benefits associated with vo1untaz ’ ECO programs. and areas with such
programs are achieving reduced air emissions wtthou: the onerous enforcement
requirements associated with the current statutory mandate. If EPA is prohibited under the
Clean Air Act from admmistering the ECO os a voluntary program. then we encourage
you to consider su pcrting a correction in the law.
Sincerely yours,
cc: Cecilia Estolano
Executive Director
1700 K Sbsct, RLW.. 5uf 1300 • Whiig ii. D.C. 2000 1 • 202/4570710 • FAX: 202/206.2392
-------
From Md RSØOSII To Aim COyls D s 4425j96 Turns: .O1 52
E F
£NVIRONIENTAL
ØFFFNSE FUND
copu& Offl ,
1873 Connecucu Ave.. NW
Washaug un. DC 20009
(202) 387-3500
2t2-2J4-6O
To: ECO rlexthi lities work Grctp 4125 ‘95
From. Iichael Replogle. EDF
Subject. supplemental Statemer.t
Aithcugh ccnctrring with a large share ci the ECO Flexibihties Wcrk Grcup Repcrt ci pril 21.
1995. 1 acd at least several ofte nierib is of the work GroLp are net able to sign en Ic the
report a currently drafted I have prepared the attached suppiernentdl slaternert Ic th ut
report. based on comments ironi fad idby. Cl:ris Miller myseli. and ethers I would
welcome ycer coni,riei;ts and solicit your supper I icr this sLpplernentalstaterner.L.
I will be tK’d up in travel and meetings much of *ednesda and Thursday. but can receive
vwce mail nessa es at 2C2 -38 -CO7O x21o faxes at 415-397—244? during that ‘rne 1
woUd encou rage you tc also cornini r.icate directly with EPA staff abeut this as well
Please respond as soon as possible on April 26. if at all possible before 3pm EDT
(but later submissions are welcomed).
CONCUR _______
CONCUR Wl’IH COk1MCNTS _______ OR
DIS EN1 ______
Please fax this sheet to:
Natelie Dcbie © EP? t312) 6c 8—452I fax
arid
Miclael Replcgle (april 26-27 only) (415) 307—244?
-------
Frvm I th.sl R .plogI. To Ann Coylu Dee: 4i26,’95 Tim.: :O2 42 4
Supplemental Statement
Summary. There is general agreement within the ECO TlexibiliUes Wcrk Group abcut the
apprcpriate dlrect!on for the ECO prcgram. favoring flexibility und cost—effective regional
strategies that expar.d opticns for both employers and employees to reduce dependence on
drive—alone travel, as well as resulting air pclluticn We concur that EPA has adequate statutory
authcritv to flexibly administer the ECO requirements. Where this new prcgram is er.co ntering
difficLitles. slates shculd explore alternative slrategi s for progidni irJplecier.tdticl dcd avail
themselves of EPA ’s flc ibility . mer.dment of the Clear. Air Act is nct needed to sclve these
problems Instead, changes are needed in federal and state lax laws related to €mplcyee
commute benefits. whici; rcw favor i se of free 1:iplcveNpro Ided parking over lternati e
ccmrziuter choices. *
ECO Program Experience. Many employers Pave fcu:d ccnipliarce ft ECO difficilt and have
r.ot had sircess ir. applying strategies that have been tested to date The body of knuwiedge
does rot demonstrate that *iele trip redm’ticns Nr. be accL .rately predicted ii: all
cir-cumstar.ces ‘urtl’ernore. accoriplishmer:t 1 the expected results ir a short tinie per icd is
unredscnable strategies suh as ir.creased trar.sit ser ice . restructiricg ci federal lax
treatrierit of ernplover—prcvided commute benefits. arid many other f t r are very iripcrtanl
in det.ermiring h w employees may ehcose to con TLte
ci:ie emplcyeis i!a e taken at approach tt:at as uri:es that. e perdituies of mote) or emplc’ e
ccmciute should result in trip reducticr.s. There are mars exiriples wLere sigi.ificanl results
t a e beer achwted without big ir:vestmenls Also. there are e ar:ipJes where the ri h.t
combination cI Lrategies have not been diseoveted
Recommendatior.s. Fnissior reductions from mobile scurces car rome from mary stralegies
Members of the Work Grcup have concluded that employers have an important role to play but
should not be held rndividually liable under the Clear. Air Act. icr Ll. following reasons
1 Employee commute behavior is determined by many Iactcrs in addition to the employers’
work practices and employee commute benc-fts These additional factcrs include ftc
availability ci ride haring service . the treatment of commute costs and benefits by federal
and state tax laws, the region’s urban geography. the availability ar.d cesLs of transit, the
availability of convenient services and safe ccr.diticns fcr walkip. or bicyclir.g in the vicinity
of the workplace. and more
*Furthe ore, states, MPOs, and employers can make more aggressive use of the
parallel provisions of ISTEA (CMAQ, STP, etc.) to begin the process of providing
the necessary alternative transportation choices.
Fcr exampk. the Tenr.essee Vdlley Authority in Kiicxvjlle. Te .nessee reduced drive
alcr.e rate. to lcss than 5C without draccniar. methods and fcr scIf—interest reasons ii’.
circum Lar.ces many notild jiAdge to be unsupportive ci this achievement Seikkc Th:ie
CcrpoIdlicn in El Segundo. California reduced its drive aicre Idle to under 65 without t:igt
cost sclulicr s in at: area here 8C drive—alone rates a e ll:e norm Bark of nierica r,d
RCO in dcwiilc’Nn Los iigeles both achieved drive akiie rates of near 5C1 BoIA did so by
nd prc iding free parking kRCO did sc by prcvidir’g fina ; cial arid other ircer Lives
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Fmm 4chasl Rspl gI. To Ann Coyls om. 4126196 Tim.: :O4 09 Pigs 401 I)
2 There is r.ot sufficient r ’esearch and evidence to ecncltde exactly chat strategies need tc be
applied in the case of e”ery pcssible employer situation to achieve the expected vehicle trip
results
2 Causing si rjficant changes in employee vehicle trip usage (e.g. or. the crder ci 25
reductions; in a short period of time is unrealistic Such changes take time to acccmphsh.
especially wher. vcnsiderir.g the large numbers of employers affected
We thus stppcrt th flexible apprcach EPA has cffered Ic states in crafting ECO programs There
appears Lc be suffic €nt support in the Cleuii Air Act to allow EPA Ic apprcve a variety of
flexible state prc;grains Ic meet ECO program reqLimrients. ii cludir:g eqi ivalenl programs bn
amendment to the Act is not necessary and ccutd. in fad. be disruptive ci mary SLCCeSSId
efforts of individual employers local governments. ai:d states. Theie there are d 1fku1tie in
ECO program implementation. states might consider how they car, take fuller :idvantage of
EPA ’s readir.g ci the staILtorv requirements in adapting their own individual ECO program
requirther.ts tc be j:icre ccst- effective and less bcrdensome to employers
There are laige, potential benefits to be four.d ir. providing tax credits and c l i e financial.
trar.spcrLaticn. and land use ircentives to enwira ei.rip reduction Pederal statutorc
provisions t}at create such pcsitive ir.centi es could be vakabl. in assistir.g nc,iattairinienl.
areas to meet air quali1; requirements. 11w federal ta. ccde continues to provide i iieqi:al
treatment of employer provided c rirnLter subsidies. encouraging free employer - provided
parking but discouraging fully 1k ibk commuler st bsidies that woild r.iaxiniize employee
choices abcut how to get to and from crk Ccngressional acliun ir this area could help states.
regicns. dnd employers !r developing voluntary. incentive-based benefit prcgram that cuId
contribute to cost—effective, timely attainment, of l:eallh— based air quality standards and could
result in cvsL savings for all segirients of scciety due to redLeed traffic congestion. reduced
needs for trar.sportatwr. investment, and expanded ccnsumer cl:oice.
EPA could revise or clarify its policy to expressly allcw states to demonstrate equivalent efforts
cr perfcrmar.ce based on emissions as well as trip reductions in certain circumstances
Alternative ECO program slernents might include the implementaticr. of regional (rather than
employer—based) trip reduction programs. the purchase of emission credits, early vehicle
retirement, investments in (‘lean fuels and clean vehicles ar,d in related infrastructure, the use
of remote sensing to identify and repair gross pclluting vehicles, and a variety of other
innovative strategies. These strategies wculd advance air quality objectives and deserve EP
encouragement and approval An equi alent ernissicu redLctions dpproach shcLld not. howevei
include emission reduction strategies that are needed to demonstrate attainment of health—
based federal air pollution standards as part cf a State lniplementaticn PIer. (SI?). but shculd
augment such strategies. supporting mcre timely attainment We recommend that EPA ccr.tmue
Ic work with the states tc clarify the approvability of these valuable inncvative strategies
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( ‘4/26 /1995 16:32 3122433954 AM LUNG ASSN CHICAGO PAGE @2
FROM: Ron Burke, american Lung Association — Metro Chicago
SUBJECT: Additional. Co ents on Michael Replogle’s independent statement
2. There is not sufficient research and evidence to conclude exactly what strategies need to
be applied in the case of evesy possible employer situation to achieve the expected vehide
trip results.
3. Causing significant changes in employee vehicle trip usage (e.g., on the order of 25%
reductions) in a short penod of time is unrealistic. Such changes take time to accomplish,
especially when considering the large mimbers of employers affected.
We thus support the fle,dble approach currently offered by EPA and the recomm IdRtions of the
ECO Flexibilities Work Group, including the provision that nissions equivalency programs be
employer-based and filly equivalent to having reached the APO. An equivalent emission approach
should not, however include mks ’ons reduction strategies that are ne’ 1ed to demonstrate
attainment of health-based federal air pollution standards as part of State Implementation Plan
(SIP), but sheuld augment such strategies, supporting more timely attaimnent. We recommend
that EPA continue to work with states to clarify the approvability of these valuable innovative
strategies.
An amendment to the Act is not necessary and could, in fect, be disruptive of many successfiul
efforts of individual employers, local governments, and states. Where there are difficulties in
ECO program implementation, states might consider how they can take filler advantage of EPA ’s
reading of the statutory requirements in adapting their own individual ECO program requirements
to be more cost-effective and less burdensome to employers.
There are larger potential benefits to be found in providing tax credits and other financial,
transportation, and land use incentives to encourage trip reduction. Federal statutoiy provisions
that create such positive incentives could be valuable in assisting nonattainment areas to meet air
quality requirements. The federal tax code continues to provide unequal ti ment of employer
provided commuter subsidies 1 encouraging free employer-provided parking but discouraging fully
cdble commuter subsidies that would maximize employee choices about how to get to and from
work. Congressional action in this area could help states, regions, and employers in developing
oluntanj incentive-based benefit programs that would contribute to cost-effective, timely
attainment of health-based air quality standards and could result in cost savings for all segments of
society due to reduced traffic congestion, reduced needs for transportation investment, and
expanded consumer choice.
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1$ . ) and at ieast several oti er members ol the TOTk Group are not able to sign ou i.e the
report as cun’enUy drafted. I have prep et the aLtached supplemental tat aent to that
report. based on eommenth from Ted Ildb hps Miller. myself. and others. I would
welcome your comments and solicit your support for this suppJ enta3 state iient.
I will be tied up in truvel end meetAage much of WedDesday and Thursday. but can receive
olce mali measegse at ZQZ 57 OQ7O z2lor fax at 41 i97’Z44? durln U at time. I
woeld encourage you to else eoimunicats direcUy with EPA stall Ibbut this is welL
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l99S 1 láudatlssetsevelotheTrnernbersotthehTkGlwepeleuateble .asi cootothe
report as carr t3y drafted. I have pTepared the attached supplemental ak temcof to that
reports based on eo iaeeta from Tad C r ilIer. myself. sbd other . I would
welcome your comm ta siid solicit your support for this soppicesonlal sta erneut.
hill be tied up hi travel and meetIngs inneh at Wednsdapsnd ?hursday.bdt con reoni .
voice mai’ meomgve at ?-3fMO7O x2lcr fazes 183r4447 durthg that tIme. -1
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ECO Flexibilitles Work Group Program Options
REGIONAL IMPLEMENTATION OF ECO PROGRAMS
Description
The Clean Air Act mandates that employers implement trip reduction measures to
increase vehicle occupancy by 25 percent. As a result of discussions among states and EPA,
EPA would interpret the law so that the 25 percent increase in vehicle occupancy could be
achieved regionally rather than by each individual employer.
Regional implementation of ECO could be accomplished through partnering efforts
between government, metropolitan planning organizations (MPOs), or another entity, which
would assume the responsibility of reducing commute trips by public and private employees
instead of that responsibility belonging to individual employers. Employers would not be
expected to meet specific trip reduction targets. Instead, regional organizations and/or the
state would work to increase vehicle occupancy over the entire region by 25 percent. This
would be the average of all trips reduced by all affected employers in the geographic areas.
In the regional ECO program being considered for Maryland, individual employers
would not submit trip reduction plans to State government. Instead, the State submits one
general Trip Reduction Plan to the EPA that covers all employers affected by ECO. Individual
employers sign a “notice of intent”- typepf agreement, stating that the employers will comply
with trip reduction measures that they select.from the regional plan.
In a regional ECO program, an employer would only be subject to enforcement by the
State for failing to maintain a current notice of intent to comply with the regional plan.
A regional approach to ECO shifis the State’s role from compliance and enforcement
activities to marketing and educational efforts. This type of ECO program would require more
work by the State than traditional ECO programs.
Pros
• The reporting requirements for employers are significantly reduced.
• State enforcement against employers is reduced.
• Employers incur fewer costs due to reduced reporting and reduced staff hours.
• The same or a greater number of trips can be reduced due to the State’s
additional efforts in the areas of marketing and education.
Clean Air Act Advisory Committee 1 DRAFT — April 26, 1995
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ECO Flexibilities Work Group Program Options
• If the regional plan involves visits to affected work sites, other environmental
messages can be communicated directly to the business community.
• MPOs and transportation management associations could help the State tally
vehicle miles and commute trips reduced to accurately report to EPA.
• Regional ECO programs give employers maximum flexibility to institute trip
reduction measures that are cost effective to the employer and desirable to
employees.
• Employers may no longer be legally responsible for achieving the 25 percent
target.
Cons
• The burden falls directly on the State for achieving the Clean Air Act mandate
of increasing vehicle occupancy by 25 percent;
• Third party litigation is still possible against private employers and/or the State;
and
• A regional approach would be more demanding for the State because efforts to
educate employers and employees and develop effective trip reduction
strategies for employers will be increased (i.e., additional resources will be
needed).
Where It Has Been TrIed/Considered
A regional ECO program has not been tried yet. A regional program is being
considered in Maryland. A regional ridesharing program is being considered in Texas as a
substitute for ECO.
Legal issues
• Does the Clean Air Act support regional ECO programs?
• Will a regional ECO program be as effective as a traditional ECO program?
• Will the Clean air Act mandate of increasing vehicle occupancy by 25 percent
be achieved under a regional ECO program?
• What level of reporting will EP,A uire for regional plans?
Clean Air Act Advisory Committee 2 DRAFT — April 26, 1995
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ECO Ft exibilities Work Group Program Options
A REGIONAL ALTERNATIVE TO EMPLOYER TRIP REDUCTION (ETR)
Description
The Houston-Galveston Area Council (H-GAC), the metropolitan planning organization
(MPO) for Texas’ only ETA-affected area, and the Texas Natural Resource Conservation
Commission (TNRCC) are currently developing a proposal that could be substituted for the
current ETR program. By developing a new transportation control measure (TCM) that could
be included in the State Implementation Plan (SIP) for the Houston/Galveston area, the
proposed substitute program may provide the desired goals of:
• Shifting TNRCC’s enforcement role against individual employers to the entire
nonattainment area;
• Developing incentives;
• Producing equivalent emissions reductions (1.81 tons of volatile organic
compounds per day), and
• reducing vehicle trips and vehicle miles traveled.
This new TCM would be subject to the TCM Enforcement Rule that was adopted by
TNRCC in 1994 and thus would be required to be implemented and enforceable. Known as
Regional Rideshare, the TCM would include:
• Rideshare matching and other technical assistance;
• The development of transportation management organizations (TMOs) to assist
employers and others;
• The development of a transportation infrastructure that would support
ridesharing options; and
• A major public education program to focus on the local air pollution problems
and the benefits of commute alternatives.
Replacing ETR with a TCM would after the basic approach of the program from
command and control to incentive-based and therefore, would require a change in the roles
of H-GAC and TNRCC. Under Regional Rideshare, H-GAC would assume a leadership role in
the development and operation of this TCM. The MPO would also ensure that the TCM is
implemented and that it produces the emission reductions that were identified and agreed to.
Interviews and surveying would be tools used to monitor travel behavior changes. Finally, H-
Clean Air Act Advisory Committee 3 DRAFT — April 26, 1995
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ECO Flexibilities Work Group Program Options
GAC would provide overall management and coordination of related activities, enforce the
TCM, and coordinate funding.
The role of the TNRCC would change to a greater emphasis on monitoring
implementation of the TCM, technical assistance, development and implementation of
incentives to encourage voluntary trip reduction efforts across Texas, and participation in an
expanded public outreach and education program. Under Regional Rideshare, TNRCC would
provide more positive assistance and an educational approach for employers and the general
public.
Pros
The approach described above removes the mar datory aspects of the trip reduction
program for employers and makes the program more positive and nonregulatory for
employers (and possibly, others). The burden of the program would be shifted from the
individual employer to the nonattainment area as a whole. In this alternative, the MPO wou’d
work closely with the local transit authority and state transportation agency to commit
significant funding that would not be available to an ETR program.
Regional Rideshare would also allow TNRCC to focus its efforts on developing and
implementing incentives to encourage trip reduction in the Houston area and in other areas of
the State.
Cons
It is unclear whether or not this proposed TCM would achieve the necessary
emissions reductions. However, it is important to remember that the ‘success 1 ’ of ETR is lust
as questionable. It would be up to TNRCC and the MPO to clearly define performance
measures that would allow this 1CM to be tracked and to result in the necessary emission
(and trip) reductions.
Where It Has Been Tried/Considered
TNRCC staff is unaware of any other area implementing an alternative program to ETR
as a formal TCM that is part of a SIP. Both Maryland and Delaware are considering regional
programs.
Clean Air Act Advisory Committee 4 DRAFT — April 26, 1995
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ECO Flexiblilties Work Group Program Options
Legal Issues
Regional Rideshare is consistent with “Employee Commute Options (ECO) Flexibilities”
attachment to the June 10, 1994, letter from EPA Administrator Carol Browner to U.S. Senator
Frank L utenberg. Included in this attachment is the statement that “EPA will support a State
that establishes a credible program targeting trip reduction on a regional basis as a means
of meeting the ECO requirements.’
The ETR SIP and rule would have to be significantly modified and possibly repealed.
Despite EPA’s position, ETR remains a mandated program under the Federal Clean Air
Act. Even if EPA chooses not to enforce the requirement, public interest groups,
environmentalists, and other interested parties could pursue legal action should affected-
areas fail to implement ETR. This important issue must be resolved before any alternative is
implemented.
Clean Air Act Advisory Committee 5 DRAFT — April 26, 1995
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ECO Flexibililies Work Group Program Options
REGIONAL PRICING PROGRAMS
Description
This alternative method of compliance would authorize a state, or subregion thereof, to
displace employer-based trip reduction programs with a regional motorist fee program. The
motorist fee could consist of a charge on different variables, such as vehicle emissions, miles
travelled, or peak period travel (i.e., congestion pricing). The pricing program would qualify
as equivalent on the basis of either emissions or trips reduced, as appropriate.
Pros
• Motorist fees (particularly emissions-based vehicle fees) provide an incentive
for drivers to maintain their vehicles and to reduce their driving in ways best
suited to their own circumstances.
• Pricing programs do not prescribe particular methods of reducing emissions,
but allow motorists to select the most convenient and cost-effective means.
S
• Depending upon their design, such programs can affect more driving behavior
than just employment-related trips or miles.
•. Regional pricing strategies remove the current trip reduction burden from the
region’s employers.
Cons
• Pricing programs may be difficult and costly to administer, depending upon the
availability of information regarding vehicle emissions, miles travelled, peak
period travel, and so on.
• Calculation of emissions and/or miles may be problematic. For example,
vehicle emissions data may vary depending upon mode of use, suggesting that
rough emissions categories may be more appropriate than highly “precise”
vehicle emissions rates. Furthermore, measurements of vehicle miles may be
subject to tampering.
• Fee programs raise potential equity problems, such as their effect on sons
who live a longer-than-average distance from work or who cannot affc• :0 pay
the fee.
Clean Air Act Advisory Committee 6 DRAFT — Apnl 26, 1995
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ECO FlexibiIifies Work Group Program Options
Fee programs may also face potential political opposition by those who view
the program as a new tax.
Where Has It Been Tried/Considered
The South Coast Air Quality Management District (SCAQMD), the Southern California
Association of Governments (SCAG), and the Coalition for Local Environmental Solutions and
a Competitive Economy (COALESCE) have recently formed a public/private task group to
evaluate the possibility of implementing such an incentive-based transportation program for
Southern California. This project currently is commencing.
Legal Issues
• Can states or regional government remove the trip reduction responsibility from
major employers?
• Can pricing programs qualify as a means of ensuring equivalent trip or
emissions reductions?
• To what extent can a state or region take credit for reducing non-employment
trips?
• What independent legal authority must a state or region have for it to take
credit for pricing programs as part of the SIP?
• What assurances, if any, does a state have to provide regarding the
effectiveness of such programs?
Clean Air Act Advisory Committee 7 DRAFT — April 26, 1995
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ECO Flexibilities Work Group Program Options
AN ILLUSTRATION
In Southern California, the Coalition for Local Environmental Solutions and a
Competitive Economy (COALESCE) has suggested a regional vehicle emissions free
program. Under that program, following a regional Investment In enhanced high-
occupancy transportation services (e.g., transit, shuttles, jitneys), motorists would pay an
annual fee reflecting the vehicle’s emissions (roughly grouped to correspond to emission
categories following vehicle inspection) and nonexempt annual milesjravelied.
COALESCE participants are considering a variety of strategies to address potential
equity concems. One possibility is to exempt employment-related miles from the fee or to
credit each driver with such miles. Employment-related miles would be calculated by
multiplying the distance between residence and employment zip code central points times
500 (250 days per year times 2 trips per day). Whether an individual actually drove that or
some different amount 01 employment-related miles would not matter.
Different “per mile” fees would be assessed for different vehicle emission categories.
For example, a person driving an average emitting vehicle for 10,000 miles a year, of which
6,000 miles are calculated to be “employment-related,” would pay $40 a year for the 4,000
nonexempt miles if the emissions rate for the average vehicle category were $.01 per mile.
Note that the COALESCE proposal would still encourage drivers to reduce employment miles,
where cost-effective to do so, even though such miles (as calculated) are not expressly taxed.
Under the COALESCE proposal, to the greatest extent administratively possible, to
counter the perception that the fee is a new “tax,” the collected fees would be returned to
motorists as coupons, or other instruments, for targeted use. Subject to the ability to cover
administrative costs by an alternative funding source, coupons would be distributed as
follows: motorists driving average emitting vehicles would receive coupons of the same value
as the amount paid. Motorists driving dirtier vehicles would receive coupons worth less than
the amount paid in (i.e., their nonexempt miles travelled times the $/mile rate applicable to the
lower-emitting- average vehicle class) and motorists drMng cleaner vehicles would receive
more than they paid in (i.e., their nonexempt miles times the average vehicle rate, which in
this latter case is a higher $/mile rate).
Qualified “targeted” uses for the returned coupons would include: vehicle
maintenance and repair for qualifying vehicles (e.g., those qualifying as higher than average
emitting vehicles), for a limited number of years; and transportation subsidies for travel on
designated high-occupancy or clean vehicles. By making coupons freely transferable, the
COALESCE proposal would maximize the likelihood that coupons would move to the hands
1. Other possible equity strategies would be to provide each driver with a certain number of
1ifeIine miles, to take income level into account, or to provide differential rates for people
kving in different subregions, among other ideas.
Clean Air Act Advisory Committee 8 DRAFT — April 26, 1995
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ECO Flexibilities Work Group Program Options
of those already inclined to use modes other than single occupancy travel in traditional
vehicles. Across the regions, although individual amounts would be small, aggregate coupon
values could be quite significant (in the order of several hundred million to in excess of one
billion dollars annually).
Clean Air Act Advisory Committee 9 DRAFT — April 26, 1995
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ECO Flexibilities Work Group Program Options
EXISTING POLICY LEVERS THAT COULD ENHANCE ECO
EFFECTIVENESS, PROVIDE ALTERNATIVES TO INDIVIDUAL
EMPLOYER-BASED PLANS, AND REDUCE OPPOSITION TO THE
ECO PROGRAM
Introduction
This program option paper discusses existing policy levers that could enhance the
effectiveness and cost-effectiveness of ECO programs, provide options to individual employer-
based plans, and reduce opposition to the ECO requirement in the Clean Air Act
Amendments 011990 (CAAA). This paper primarily discusses policies in place at the federal
level that apply to states and metropolitan areas, however, states and local governments may
wish to adopt additional policies to enhance the effectiveness of those listed below. Specific
suggestions are also provided on state and local initiatives that could augment federal
policies.
Policy Levers Embodied in Existing Federal Programs
The Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) contains a
number of provisions that could be helpful to creating flexibility in the ECO program. ISTEA
provides an unprecedented level of responsibility and authority to metropolitan planning
organizations (MPO5) in cooperation with states, over transportation planning and investment
decisions in metropolitan areas. (In many cases, these MPO boundaries overlap with or are
close to nonattainment area boundaries). ISTEA also places a heavy emphasis on providing
alternative transportation options to single occupant vehicular travel and, in fact, prohibits
federal investment in new capacity for single occupant vehicles (SOVs) in nonattainment
areas under certain circumstances.
Specifically, each urbanized area with a population over 200,000 must develop and
implement a congestion management system (CMS) that details how the area would
accommodate future travel. In nonattainment areas, no capacity additions for SOVs can be
approved if not included as part of a CMS. Capacity improvements that are proposed and
included in a CMS must include measures to encourage ridesharing, alternative mode use,
and operational management strategies to be eligible for federal funding. Such measures
must be in place at the time new capacity investments are made.
Secondly, the CMS must detail how operational improvements, transportation demand
management, and other non-capacity or ’- d approaches would be imr’- ‘- nted in
nonattainment areas. One possible dirs kage with EGO requirement ld be made
where the MPO assumes the responsibiin, r the emission/trip reduction -at would
Clean Air Act Advisory Committee 10 DRAFT — April 26, 1995
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ECO Flexibilities Work Group Program Options
otherwise be estimated from an ECO program and then incorporates those regional strategies
into their CMS and investment plans.
The funding for CMS strategies also is provided in ISTEA. While most transportation
demand management (TOM) professionals focus on the Congestion Mitigation and Air Quality
program (CMAQ) for funding — this is a legitimate source for such programs — the Surface
Transportation Program (STP) under ISTEA has a much larger share of the funding available
to states and MPOs and is a very flexible funding source. For example, the CMAQ program
comprises less than 5 percent of the total funding under ISTEA ($6 billion over 6 years of
$150 billion total), while the STP program includes $25 billion over the six year period. Both
sources can fund TDM programs and transit improvements if the MPO and the state agree to
the uses of the funds. In addition, the CMAO program funds can explicttly be used for
“incentives” to non-SOV travel, which is a costly component of the ECO program.
Another provision of ISTEA is that, where major investments are contemplated, a major
investment study (MIS) must be undertaken to identity all reasonable alternatives to address
the identified transportation problem. The MIS must also investigate non-capacity oriented
improvements, including systems and demand management approaches, that could preclude
the need for new construction. This provision also allows for consideration of trip reduction
strategies to be incorporated into an MPO transportation plan and investment program and
provides some opportunities for substitute approaches to the ECO program as currently
envisioned.
State Policies That Could Support ECO
Tax policies to provide credit or tax deductions to vanpoolers, carpoolers, and transit
users could be implemented to “level the playing field” with such heavily favored (from a tax
perspective) options as employer provided parking. Some states have tax credit programs in
place that may warrant further investigation as options to the states impacted by the ECO
requirement.-
Local Policies That Could Support ECO
Research has repeatedly shown that the most effective trip-reduction programs are
very targeted, mandatory, and offer a combination of incentives and disincentives to SOV
travel. Local development policies that support the provision of alternatives to solo-driving
can be very effective in managing new demand for transportation infrastructure and can, in
many states, only be required by local governments because of their responsibility for land-
use control and development actions. States and metropolitan areas impacted by ECO might
consider investigating such options as a more flexible and long-term approach to managing
demand and reducing trips/emissions in their jurisdictions.
Clean Air Act Advisory Committee ii DRAFT —April 26, 1995
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ECO Flexibilities Work Group Program Options
Conclusions
There are existing policies and funding programs in place at the federal level which
could support the EGO program objectives: trip/emission reductions from personal
automobile travel. In fact, such provisions are mandatory in several elements of ISTEA. EGO
program options could be developed to maximize the effective implementation of these
strategies while integrating the EGO requirements into regional transportation planning and
investment decisions. Some benefits of such an approach include: reduced administrative
requirements, more cost-effective trip/emission reduction strategies, reduced duplication of
government ft nctions, and broad-based acceptance by the business community.
Clean Air Act Advisory Commtttee 12 DRAFT — April 26, 1995
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ECO Flexibilities Work Group Program Options
SMART LAND-USE INCENTIVES
Description
Smart Land-Use Incentive Programs involve defining project design features and
operating programs that have emission reduction benefits as compared to standard
development. Under this option, regulatory and other incentives would reward developers,
local governments, and others implementing smart land-use design. Among the regulatory
incentives might be the designation of local communities that meet certain smart land-use
criteria as “ECO-free zones.” The types of project design programs that might be considered
for an incentive program could include:
• Jobs-housing linkage programs that provide financial and other incentives to
employers that hire residents living in the vicinity of an employment project or
vice versa;
• Multi-use projects that co-locate housing and jobs;
• Projects that implement alternative fuel vehicle infrastructure;
• Projects that are located along transit lines or near transit hubs;
• Design features that accommodate bicycles, pedestrian movement, and
otherwise reduce reliance on single occupancy vehicles; and
• Projects that provide, transit, including low emission transit alternatives;
Incentives that might be considered include:
• Tradable air emission credits;
• Alternative mechanisms to achieve average vehicle occupancy or trip reduction
targets;
• Land-use density bonuses;
• Preference in transportation funding decisions;
• Streamlined environmental review under NEPA and state equivalents; and
• Streamlined permit processing.
Pros
These programs focus on providing infrastructure and options necessary to allow
consumers to make low emissior transportation choices.
Insufficient incentives exist to make many smart land-use design features economic for
implementation.
Clean Air Act Advisory Committee 13 DRAFT — April 26, 1995
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ECO Flexibilitles Work Group Program Options
These programs reward planned development that is able to implement smart land-use
development features and thereby reduce the tendency of the current permitting process to
favor piecemeal development because of smaller size.
Cons
Many of the mo t valuable incentives must be administered by and are within the
purview of state and local governments.
Quantification of emission benefits for many land-use design options may be iubject
to debate and may vary based on the details of location and project design.
Where It Has Been Tried/Considered
Maguire Thomas Partners has committed to implementing many smart land-use design
concepts as part of its Playa Vista Development, a large multi-use project located in Los
Angeles, CA. The project was deemed a “model project” by both the South Coast Air Quality
Management District and the Southern California Association of Governments.
Legal Issues
• Can smart land-use qualify as an alternative to achieving trip reduction
requirements or emission reductions?
• To what standards will emission credit programs involving smart development
be held?
• Can environmental review, transportation funding, and other incentives be
developed without additional federal or state authority?
Clean Air Act Advisory Committee 14 DRAFT — April 26, 1995
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ECO Flexibilities Work Group Program Options
ECO FLEXIBILITIES WHITE PAPER
Description
The 1990 Clean Air Act Amendments included the EmpIoye Commute Option (ECO)
program as the only provision explicitly aimed at reducing vehicle miles traveled (VMT)
growth, which threatens to overtake air quality improvements achieved with clean fuels and
advanced motor vehicle technology. ECO program alternatives are being considered in order
to provide flexibility to the regulated community in meeting difficult ECO program goals.
While the ECO program’s specified goal is to reduce the number of single occupancy trips to
the workplace, the recognized benefit of ECO programs is air quality improvement. The
options proposed herein reflect both trip reduction and air quality improvement goals.
There are several options for actual trip reductions including parking cash-out and
congestion improving measures (including solo driving and VMT charges). All of these
options make other transportation modes (i.e., public transit and vanpools) more affordable
than the increased relative cost of solo driving. Southern California Gas Company has
achieved a 2.3 average vehicle ridership in its downtown Los Angles headquarters facility
primarily due to very high parking fees in the immediate area. The air quality improvement
benefit of these options can be significantly enhanced if the alternative transportation modes
replacing the personal automobile operate on clean alternative fuels.
The South Coast Air Quality Management District (SCAQMD) currently is considering
other alternatives to work trip reductions, which include allowing employers to reduce
emissions rather than trips to achieve an emission reduction equivalency target and allowing
certain size employers to invest $110/employee to fund programs that would reduce mobile
source emissions or trips equivalent to required reductions. Strategies to reduce emissions
or trips currently approved by the SCAQMD include: fleet conversion to clean fuels, remote
sensing and subsequent repair of high emitting vehicles, old vehicle scrapping and work-
related trip reductions that are not during the commute window (i.e., joint utility meter reading,
fleet conversions), and operation of clean fueled vehicles in carpools/vanpools. This also
should apply to vehicles used to commute to an alternative transportation mode (i.e., heavy
or light rail). The SCAQMD program also provides the ability for an employer to be creative
and have individual proposals considered and approved by the Executive Officer.
Pros -
In the effort to balance mobile and stationary source controls, the alternatives
described above provide flexible opportunities for employers to select the most cost-effective
options for their individual situations. It is important that policy makers focus on achieving
maximum emission reductions from mobile sources because these sources are responsible
for a sigrhttcant portion of ozone precursor emissions.
Clean Air Act Advisory Committee 15 DRAFT — April 26, 1995
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ECO Flexibilities Work Group Program Options
The alternatives that allow employers to provide ECO program credit for clean fuel
vehicles used for single-occupancy personal commuting or carpools/vanpools provide
significant opportunities for ECO program compliance. If similar credit were applicable to
fleets that convert existing vehicles to operate on clean fuels, further opportunity for
successful compliance would be provided. In addition, investment in the air quality fund
option could provide funding for accelerated penetration of afternative clean fuel vehicles (i.e.,
transit, paratransit, employer fleets, personal vehicles), providing a significant contribution to
air quality improvement.
Cons
The ECO options program framework must ensure that alternatives only qualify if they
are not already included in regional or state air quality management plans, to ensure that
emission reductions are not double counted.
Where Has It Been Tried/Considered
SCAQMD currently is proposing the alternatives rule to its governing board.
Clean Air Act Advisory Committee 16 DRAFT — April 26, 1995
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ECO Flexibilities Work Group Program Options
COMMUTER CHOICE/PARKING CASH OUT
Description
Virtually every comprehensive analysis of the impacts of employer-based trip reduction
strategies concludes that financial incentives are essential components of a sustained,
successful mix of strategies. However, the federal Tax Code makes it nearly impossible for
employers to offer such incentives. Section 132(f) of the Code defines how employee
commute benefits, or transportation fringes in tax parlance, are treated for tax purposes. The
essence of the Code is that while take-ft-or-leave-ft employer-provided parking is tax exempt
up to $155 per month and public transit passes are exempt up to only $60 per month, other
kinds of benefits employers might provide (such as telecommuting or rideshare incentives,
cash. etc.) are not exempt from income taxes. Perhaps most importantly, no kind of employer
benefit is tax exempt where employers offer a choice of options (e.g., a choice of parking,
transit, or cash incentives for ridesharing or telecommuting). Thus, the Tax Code directly
contradicts the very concept of the Employee Commute Options embodied in the Clean Air
Act.
Employers surveyed in response to a California law mandating some kind of
commuter choice (called parking cash out) labeled the tax issue as the number one barrier to
the implementation of a trip reduction program with financial incentives. This is not
surprising, because it costs an employer about twice as much, once taxes are considered, to
provide an employee with a dollar of take home taxable fringe benefits than with a dollar of
tax exempt benefits, such as take-it-or-leave-it-parking. According to US DOT’s Nationwide
Personal Transportation Survey, more than 95 percent of employees who drive to work
receive free parking. Yet, except where required by ECO, almost no employers offer
alternatives to free parking.
This alternative would eliminate the existing Transportation Fringe exemptions of the
Internal Revenue Code: the $155 per month per employee exemption for employer-provided
parking only, the $60 per month per employee exemption for ‘public mass transit passes, and
the limited exemption for vanpool expenditures. It would replace the tax provisions with a
simple, comprehensive, exemption for all types of employee commute benefits: parking,
carpool incentives, public or private transit of all kinds, vanpool, telecommuting, bike/walk,
etc. To achieve revenue neutrality versus the current system, the value of this exemption
could be capped at $80 - $100 per month per employee. This proposal could be used in
lieu of, or as a complement to, a more flexible approach to employee trip reductions.
Pros
This is a market based approach to trip reduction. Instead of presuming a set of
benefits employers should offer, it levels the playing field among benefits and provides a
Clean Air Act Advisory Committee 17 DRAFT — April 26, 1995
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ECO Flexibilities Work Group Program Options
reasonable tax incentive for employers to offer any or all of them. Commuter choice
programs where employers offer a “cafeteria plan” of commute benefits including parking,
transit cash, and other choices have reduced the number of vehicles driven to work by 20
percent to as much as 50 percent, even at suburban study sites. This approach gives
employers an incentive to do what works, and not do what doesn’t, for their employees. This
option is not paperwork intensive from the perspective for government or employers, and
enforcement is through existing tax mechanisms with strong penalties for violation of the
Code.
Cons
This ar- ach requires a modification of the Internal Revenue Code, which means
Congressior :ion. However, a flatter, more flexible tax approach to employee commute
benefits is in sing with current philosophies in the tax community. An identifiable group of
employers and employees, those currently offering or using parking valued above the $80-
$100 per month cap, would clearly be losers under this proposal. These same groups,
located in the most vibrant downtown areas of our few largest cities, would benefit from EGO
flexibility and the new found ability to offer other kinds of commute benefit choices without tax
penalty.
Legal Issues
This option requires legislation. However, the combination of commuter choice and
action to make ECO more flexible could be sold as a package of measures to get the federal
government out of the business of determining — in one direction or the other — employee
commute benefits. Furthermore, this approach was advocated by House Republicans in
response to President Clinton’s Parking Cashout legislative concept last year.
Clean Air Act Adviso,y Committee 18 DRAFT — April 26, 1995
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ECO Flexibilities Work Group Program Options
COMMUTER CHOICE INITIATIVE
Description
The Association for Commuter Transportation’s (ACT) Commuter Choice Initiative,
which is being undertaken in partnership with the Federal Transit (FTA) and Federal Highway
(FHWA) Administrations of the U.S. Department of Transportation and the U.S. Environmental
Protection Agency (EPA) proposes to: examine the interrelationship of a number of issues for
transportation commute options, to develop a comprehensive analysis and to ultimately
support a consensus policy position for transportation commuter choice and travel options.
The federal agencies’ interest in these matters derives from two recently enacted
Federal laws: the Intermodal Surface Transportation Efficiency Act (ISTEA) and the Clean Air
Act Amendments of 1990 (CAM) Both the ISTEA and the CAM require reductions in mobile
source emissions through policies that encourage more transit use, the implementation of
demand management strategies, and other policies to encourage less single occupancy
vehicle travel.
Many experts have suggested that the U.S. Tax Code has an impact on the offering
and use of certain commute-related fringe benefits such as parking, transit, and non-
automobile oriented transportation options. However, there are insufficient data regarding
those impacts and the impact that various changes to the code would have on commute
travel. The following are key questions that the initiative will explore, given the federal
government objective to level the playing field with respect to tax treatment of transportation
modes:
• What is the optimum tax treatment of commute-related fringe benefits?
• What commute benefits are employees receiving now, and what role does the
federal tax code play in employers’ determination of and employee use of these
benefits?
• What is the value of parking for commuters?
• How can the tax code be used to encourage the use of alternative commute
options at the least cost to all parties?
A consulting team has been selected through a competitive bid process to perform the
necessary research and analysis to answer the questions above and to assist with the
development of policy options.
Clean Air Act Advisory Committee 19 DRAFT — April 26, 1995
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ECO Flexibilities Work Group Program Options
Key activities include:
Assess the effects of the current tax code on employee commute benefits:
— What benefits are commonly provided to employees:
— Who receive these benefits;
— What types of employees typically receive them;
— Why do employers offer them;
— Why do employers elect not to offer them; and
— What does the offering of commute benefits cost to the average
employer?
Explore how modffications to the tax code would impact the provision of
commute benefits:
— Identify commute parking costs of a representative set of regions (cities,
suburbs) and possible methods used to place a monetary value on
parking; and
— Estimate the potential tax revenue from parking cash out programs
utilizing U.S. Treasury and Congressional Joint Tax Committee
methodologies and assumptions
Based upon research findings, a minimum of four (4) policy scenarios will be
developed to identify various combinations of commute benefits, the resulting projected
participation levels of employers and commuters, the impact on single occupancy vehicle
trips, the potential costs and savings to employers, the revenue potential and other financial
impacts on e federal government, the ease of implementation, and other considerations.
Us’ the information gained during the above tasks, the project team will utilize the
findings and develop potential policy scenarios and assess their impacts for federal
government adoption. Commuter Choice Initiative policy options will be selected according
to their potential to reduce the use of single occupancy vehicles for commuting purposes, to
encourage the use of alternative commute options and to be implemented at the least cost to
all affected parties. Research and analysis on a number of specific issues will be undertaken
so that a clear understanding of the various components of transportation commute options
may be realized.
Clean Air Act Advisory Committee 20 DRAFT — April 26, 1995
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ECO Flexibilities Work Group Program Options
CREDIT FOR CLEAN FUEL VEHICLES
Description
This concept would entitle an employer to receive average vehicle occupancy (AVO)
credit for the use of clean fuel vehicles that are used by employees for commute or business
purposes. Clean fuel vehicles are original equipment manufacturer vehicles, or conversions
of conventional vehicles, designed to operate on alternative fuels and certified to be lower-
emitting than conventional, gasoline-powered vehicles. Unlike a conventional gasoline-
powered vehicle, which is counted as a full vehicle in the AVO calculation procedure, a clean
fuel vehicle would be counted as a fraction of a conventional vehicle, to reflect its lower
emission characteristics.
Pros
• Flexibility . The concept offers the employer additional flexibility in meeting the
AVO target.
• Air Quality Benefit . Clean fuel vehicles would generate immediate emission
reductions, if used to replace more polluting vehicles.
• Incentives for Alternative Fuel Vehicle Technoloav . A clean fuel vehicle
credit in an ECO regulation would provide a market framework to provide
incentives for: development and evaluation of alternative fuel vehicle
technology, rapid deployment of these vehicles in regional fleets, and
introduction of a refueling infrastructure.
• Accelerated Fleet Conversions . A clean fuel vehicle credit would create an
additional incentive for employers to convert their conventional fuel-powered
fleets to cleaner fuel alternatives. Accelerated fleet conversions would result in
additional air quality benefits, beyond those originally anticipated.
• Potential Cost Savings . An employer who receives significant clean fuel
credits might have the opportunity to reduce compliance costs by limiting or
replacing more costly and less effective components of the trip reduction plan.
Cons
• Potential Double-CountIng of Emission Reductions . Emission reductions
from this program could potentially overlap with other state or federal
programs. A tracking procedure must be developed by the implementing
Clean Air Act Advisory Committee 21 DRAFT — April 26, 1995
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ECO Flexibilities Work Group Program Options
agencies to eliminate any potential overlap of emission reductions with other
state or federal programs.
Administrative Burden on Local District/State . Local districts/state agencies
offering clean fuel credits must develop a methodology to calculate credit that
reflects the emission levels of alternative fuel vehicles relative to the emission
levels of conventional vehicles. To receive credit, employers also must track
the number of alternative fuel vehicles and the type of fuel used.
Where ft Has Been Tried/Considered
At its April 14, 1995 meeting, the SCAQMD Governing Board considered this
alternative as part of the alternative compliance options included in Proposed Rule 1501.1 —
Alternative to Work Trip Reduction Plans.
Legal Issues
Potential Overlap Wfth Other State or Federal Programs . EPA has already
interpreted Section 1 82(d)(1 )(B) of the Clean Air Act to allow credit for the use of clean
fuel vehicles in commute trips. Clean vehicles are counted as part of a vehicle when
making calculations of passenger occupancy. (USEPA, Employee Commute Options
Guidance, December 1992, p. 12). Thus, no major legal issues exist.
Clean Air Act Advisory Committee 2 DRAFT — April 26, 1995
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ECO Flexibilities Work Group Program Options
LOCATION-EFFICIENT MORTGAGES
Description -
A variation on the “brownfield” concept, the location-efficient mortgage is based on the
reduced need for automobile capacity resufting from living within walking distance of a
subway or train station. In return for addittonal purchasing power on his/her mortgage, the
borrower agrees to reduce the number of household vehicles by one, with a fixed amount
assumed for monthly savings on gas, maintenance, insurance, and so on. This, among other
things, reduces both the number of trips and vehicle miles traveled (VMT), and therefore, is a
candidate for inclusion in a flexible ECO programs. There are Iwo approaches to
measurement of these credits. First, on a case-by-case basis, each mortgage for a home
within walking distance of a transit station could be counted and credit could be taken.
Second, a statistical approach could be taken.
Pros
• Reuse of abandoned housing/use of vacant properties.
• Expansion of the pool of home buyers and extension of eligibility to lower-
income buyers.
• Removal of vehicles from the road, and therefore reduction of the number of
trips and VMT.
• Encouragement of additional development and redevelopment in urban
neighborhoods.
• No public costs — the lending agencies assume the risk, and the borrower pays
application fees (just as they do now).
• Positive incentives to consider changing behavior.
• It is completely voluntary.
Cons
The major difficulties surrounding this proposal are the uncertainties regarding
reductions. In addition, some of the credits counted toward reduced trips or reduced VMT
could be windfalls (since they might have occurred regardless), or double counting.
Clean Air Act Advisory Committee 23 DRAFT — April 26, 1995
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ECO Fiexibilities Work Group Program Options
Other potential problems that remain unanswered include:
• Will there be sufficient demand; and
• Is there an unused supply?
Where It Has Been Tried/Considered
The Center for Neighborhood Technology has arranged a demonstration project in the
Chicago area, in conjunction with a major demonstration project on development around
transit stations.
Legal Issues
Legal issues might include treatment of the credits, the legal obligation of the borrower
to refrain from purchasing another vehicle should his/her income increase, enforcement
issues, and others.
Clean Air Act Advisory Committee 24 DRAFT — April 26, 1995
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ECO Flexibilities Work Group Program Options
USE OF SURPLUS DISCRETE EMISSION REDUCTIONS IN GOOD
FAITH IMPLEMENTATION OF THE ETRP REQUIREMENT OF THE
- CLEAN AIR ACT
Description
Clean Air Action Corporation creates and supplies emission credits to many companies
in the Northeast and elsewhere for use in compliance with air pollution control requirements.
Many of our customers are located in areas designated “severe” or “extreme” nonattainment
areas for ozone air pollution. As a consequence, these companies and many others are subject
to the EPA Employee Commute Options (ECO) program under the Clean Air Act. Under ECO,
many companies such as PSE&G are required to develop employee trip reduction plans (ETRP)
to increase the average passenger occupancy (APO) of vehicles used by their employees in
work-related trips during peak travel periods.
Many of these companies are concerned about the possible consequences of failure to
achieve the increased APO projected in their ETRPs. For example, emission reductions projected
from increasing the average vehicle occupancy in New Jersey are critical if New Jersey is to
attain the federal air quality standards. Since it is not possible to predict with certainty whether
the measures included in a plan would have the expected impact on APO, many of these
companies are concerned about the possible enforcement consequences of a failure to achieve
the projected increases in APO.
In a June 10, 1994, letter to New Jersey Senator Frank Lautenberg, Administrator Browner
stressed EPA’s flexibility with respect to State implementation of the ECO program. In that letter,
Ms. Browner slated that EPA was prepared to approve State ECO programs that
“protect employers from receiving penalties for failure to achieve
their trip reduction goal as long as they submit and implement, in
good faith, plans designed to achieve that goal.”
Ms. Browner’s letter did not attempt to indicate further EPA’s views as to what might
constitute good faith implementation of an ETRP.
An ETRP that some companies are considering would guarantee the emission reductions
projected in their ETRP would actually be achieved, even if APO did not increase as projected
in response to their ETRP. Under this plan, the company would obtain surplus discrete emission
reductions (SDRs) as “insurance.” In order to calculate the appropriate number of SDRs, the
company would periorm a survey to determine the APO of vehicles used by its employees for
work-related trips during peak travel periods. The results of this survey would be used to
calculate the emissions reductions, in tons of NOx and VOC, that would result from a completely
successful ETRP.
Clean Air Act Advisory Committee 25 DRAFT — April 26, 1995
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ECO FIexibiIities Work Group Program Options
The company would then purchase the full amount, in tons, of SDRs that would result
from completely successful implementation of its ETRP. After implementing its ETRPs for a full
ozone season, the company would again survey its employees and recalculate the actual APO
resulting from the implementation of the ETRP. Emissions reductions achieved as a result of the
program would then be subtracted from the purchased credits and the unneeded credits either
saved for later use or returned to the supplier. The credits needed to achieve the target emission
reduction from the ECO program would then be surrendered to the State and retired.
Pros
Clean Air Action Corporation is convinced that a program such as the one described
above is in tact superior to many measures, because it offers flexibility for an employer, while
assuring that the emissions reductions targets of ETRPs are fully met regardless of the employee
response to the employer’s program. In our view, an employer that implements an ETRP with
such an “insurance policy,” guaranteeing the goals of the ECO program would be met, should
clearly fulfill the “good faith implementation” guidance of the Administrator’s letter.
One of the most attractive aspects of allowing the use of SDRs to demonstrate employer
good faith is that it can be done without either statutory or regulatory change. EPA need only
clarify its “good faith” policy.
Legal Issues
In her letter to Senator Lautenberg and accompanying appendix on the ECO program,
the Administrator stated that “EPA will give substantial deference” to State and local agency
decisions on whether an employer has made good faith efforts to achieve trip reduction goals.
She indicated that EPA was prepared to exercise considerable flexibility in implementing the ECO
program, noting several measures that EPA would accept, such as parking “cash-out,” averaging
among worksites, seasonal strategies, and credit for children dropped off at day care centers.
Clean Air Act Advisory Committee 26 DRAFT — April 26, 1995
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ECO Flexibilities Work Group Program Options
STRAIGHT EMISSION EQUIVALENCIES
Description
This alternative method of compliance would allow an emplo er to substitute the a’J’erage
vehicle occupancy (AVO) target with an annual emissions reduction equivalency target. An
employer choosing to operate under this compliance option would be allowed to implement
alternative emission reduction strategies to reduce emissions or trips in an amount equivalent to
or in excess of that achievable under the existing AVO target. Emissions and/or trip reductions
obtained from the implementation of alternative emission/trip reduction strategies would than be
translated into emission reductions and credited towards the employer’s emission reduction
equivalency target. Examples of alternatives include: emission sensing, vehicle fleet conversion,
and alternative work related trip reductions. Existing regulations are aimed primarily at reducing
trips, which are responsible for emissions of reactive organic gases (ROG), oxides of nitrogen
(NOr) and carbon monoxide (CO). Therefore, in order to maintain equivalency in emission
reductions with these regulations, alternative emission reduction strategies should reduce
emissions of ROG, NO , and CO by an equal or greater amount to that achievable through trip
reductions.
Pros
• Flexibility . Employers do not have to rely solely on trip reduction strategies to
meet their targets.
• No Need to Influence Behavior . This alternative method of compliance
eliminates the need for an employer to influence employee behavior in order to
meet the AVO target.
• Potential Cost Savings . Many of the alternative emission reduction strategies are
significantly less costly to implement than traditional trip reduction strategies.
Despite the fact that this alternative would require employers to meet the
emissions equivalent performance targets of the Employee Commute Options
(ECO) regulation, many employers who elect to implement these strategies would
experience cost savings of 50 percent or more.
• Simplified Administration . This alternative method of compliance promises
significantly reduced and streamlined administrative procedures. An employer
would no longer need to maintain an ETC or prepare and submit lengthy trip
reduction plans. When determining the emission reduction equivalency target, an
employer would have the flexibility to use either default AVO values or determine
actual AVO based on procedures outlined in the regulation.
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ECO Flexibilities Work Group Program Options
• Potentially Reduced Processing Fees . Employers may experience additional
savings from reduced processing fees, because the submittal and review
processes of alternative emission reduction strategies are expected to be
simplified and less subjective than trip reduction plan review.
• Air Quality Benefits . Existing ECO regulations rely on an employer’s good faith
effort to demonstrate progress toward meeting AVO targets with no assurance that
targets are actually going to be met. This alternative compliance method provides
the certainty that emission reduction targets would be met.
Cons
• Equivalency Demonstration . Although most trip reduction programs reduce
emissions of ROG, NOR, and CO by similar relative amounts, some alternative
strategies, aimed at primarily reducing emissions, may not. In order to maintain
equivalency with each of the three criteria pollutants, an employer may need to
implement a combination of alternative strategies.
• Administrative Burden on Local District/State . In order to implement this
alternative, local districts/state agencies would have to develop regional emission
factors that reflect the characteristics of local fleets, as well as calculation
methodologies that would,- quantify emission reductions from alternative
emission/trip reduction strategies and assure that emission reductions are real,
surplus, quantifiable, and enforceable. The South Coast Air Quality Management
District and the California Air Resources Board have prepared calculation
methodologies for many of these strategies.
• Potential Double-Counting . Emission reductions from some of the afternative
strategies may overlap with other local, state, or federal regulations. A proper
tracking procedure must be developed that would eliminate any potential double-
counting of emission reductions for State Implementation Plans.
Where It Has Been Tried/Considered
At its April 14,1995, meeting, The South Coast Air Quality Management District Governing
Board considered this alternative s part of the alternative compliance options included in
Proposed Rule 1501.1 — Alternative to Work Trip Reduction Plans.
Clean Air Act Advisory Committee 28 DRAFT — April 26, 1995
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ECO Flexibilities Work Group Program Options
Legal Issues
Favorable interpretation of the Clean Air Act would allow the implementation of this
strategy. Specifically, EPA should interpret the Clean Air Act to authorize compliance with ECO
requirements by equivalent emission reductions. EPA has already established this precedent by
allowing this in the case of clean fuel vehicles. (USEPA, Employee Commute Options Guidance,
December 1992, p. 12). This precedent clearly leads to the conclusion that emissions
equivalency is an appropriate method for compliance with Section 1 82(d)(1 )(B) of the Clean Air
Act. We believe this interpretation is consistent with the Clean Air Act.
Clean Air Act Advisory Committee 29 DRAFT — April 26, 1995
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ECO Flexlbilities Work Group Program Options
IN LIEU OF FEES USED FOR TRIP REDUCTION PROGRAMS
Description
This ECO option would allow employers to choose to pay a fee instead of setting up a
program to increase their average passenger occupancy (APO). Under this particular option, all
fees would be put into a fund to support programs aimed specifically at reducing trips. The fee
would most likely be based on the average cost per person of implementing an ECO program
in the area.
Pros
This option could work within existing employer-based programs, while significantly
reducing an employer’s administrative burden. It would provide employers with an additional
choice in complying with ECO requirements while maintaining the statutory focus on trip
reduction. Because all fees would go toward trip reduction efforts, this option may be more
legally defensible under the current law, than a program in which fees are applied to emission-
based measures. In addition, such a program may have the effect of increasing the effectiveness
of regional approaches to trip reduction by funneling funds into programs that have a certain
amount of support. -
If the amount of the fee accurately represents what other employers in the area are paying
to implement an ECO program, no particular affected employer would gain a competitive
advantage.
Cons
It may be difficult to settle on an in lieu of fee that accurately represents the average cost
of an ECO program and is acceptable to employers.
This option, which has a definite up-front cost, may be unattractive in an atmosphere of
lax enforcement.
The agency responsible for collecting and allocating the in lieu of funds may have to be
responsible for demonstrating a good faith effort to reduce enough trips by measures funded by
the fees to satisfy each paying employer’s required APO increase. In any case, this option would
probably increase the administrative burdens and costs to the administering agency, though the
fees would help offset these costs.
Clean Air Act Advisory Committee 30 DRAFT — April 26, 1995
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ECO Flexibilities Work Group Program Options
Where It Has Been Tried/Considered
The South Coast area in California is considering including a variation of this option in
its revisions to Rule 1501.
Legal Issues
Paying a fee instead of implementing an ECO program may not be what the authors of
the ECO provision intended, and, by doing so, employers are not directly affecting trips made
by their employees. But this option would seem to comply with the Act’s requirement for
obtaining trip reductions. The Act specifies that each employer increase APO in commuting trips
during peak travel periods, but not necessarily the APO of its own employees. By contributing
to a fund that is used to reduce trips in the area, the employer’s actions in effect would contribute
to an increase in APO. -
Clean Air Act Advisory Committee 31 DRAFT — April 26, 1995
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ECO Flexibilities Work Group Program Options
AIR QUALITY INVESTMENT FUND
(IN-LIEU” FEE)
Description
In lieu of complying with the requirements of an Employee Commute Option (ECO)
regulation, this alternative compliance program would allow an employer to participate in an air
quality investment program and be deemed in compliance with the regulation. An employer
electing to participate in an air quality investment program would submit an annual fee for each
of his/her employees covered by the ECO program to a restricted fund. This annual fee would
reflect the region-wide average per employee cost of complying with the ECO eguiation. Money
collected in the restricted fund would be used by the local district/state to fund proposals that
would reduce mobile source emissions/trips more cost-effectively than under the ECO regulation.
The concept of the air quality investment program is based on relative cost-effectiveness.
Redirecting monies normally invested in ECO programs into alternative strategies that are more
cost-effective would result in greater overall emission reductions and provide emission reductions
at a lower cost. Some of the programs or strategies that could be considered to receive funding
include: the procurement of low- or zero-emission vehicles; implementation of remote sensing;
old vehicle scrapping; and the creation and improvement of localized, demand-responsive,
mobility enhancing services and projects, such as the purchase or operation of shuttle services,
the construction or operation of telecommuting work centers, and others.
Pros
• Flexibility . The concept offers employers greater flexibility by providing an
alternative method of compliance.
• Potential Cost Savings . Employers with annual compliance costs higher than the
air quality investment fee will experience significant cost savings.
• Administrative Simplicity . Eliminating the need for an ETC, as well as the
preparation, submittal and subsequent review of trip reduction plans by local
districts/state agencies provides employers simplified and streamlined
administration.
• Reduced Pager Work . The program would essentially eliminate paper work for
the employers, because negligible recordkeeping is required.
• Air Quality Benefit . The concept of the air quality investment program is based
on relative cost-effectiveness. Redirecting money normally invested in traditional
ECO programs into alternative strategies that are more cost-effective could result
Clean Air Act Advisory Committee 32 DRAFT — April 26, 1995
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ECO Flexibilities Work Group Program Options
in greater overall emission reductions. Preliminary analysis of potentially available
uses of the fund demonstrates the potential of reducing equivalent emissions in
a more cost-effective manner.
Cons
Administrative Burden on Local DistrIct/State . The local district/state has to
establish methodologies to quantify the emission/trip reduction potential of each
proposal and ensure that emission reductions are real, surplus, quantifiable, and
enforceable, and establish criteria for making recommendations for funding.
Administrative burden from reviewing proposals and making funding
recommendations on an ongoing basis will have to be assessed.
Where It Has Been Tried/Considered
At its April 14, 1995, meeting, the SCAQMD Governing Board considered this alternative
as part of the alternative compliance options included in Proposed Rule 1501.1 — Alternative to
Work Trip Reduction Plans.
Legal Issues
Favorable interpretation of the Clean Air Act that would allow the implementation of this
strategy. Specifically, EPA should interpret the Clean Air Act to authorize compliance with the
ECO requirements by equivalent emission reductions. EPA has already established this
precedent by allowing this in the case of clean fuel vehicles. (USEPA, Employee Commute
Options Guidance, December 1992, p. 12). This precedent clearly leads to the conclusion that
emissions equivalency is an appropriate method for compliance with Section 1 82(d)(1 )(B) of the
Clean Air Act. We believe this interpretation is consistent with the Clean Air Act.
Clean Air Act Advisory Committee 33 DRAFT — April 26, 1995
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ECO FIexibiIities Work Group Program Options
TRIP REDUCTIONS EQUIVALENTS
(BUYING CREDITS TO MAKE UP THE DIFFERENCE)
Description
This alternative would allow an employer to continue operating under the existing
framework of an Employee Commute Options (EGO) regulation, but would also be allowed to
substitute or supplement existing trip reduction strategies with alternative, more cost-effective,
emission/trip reduction strategies or purchase emission reduction credits to make up the shorttall
in meeting the average vehicle occupancy (AVO) target. Emission/trip reductions obtained from
the implementation of alternative strategies or the purchase of emission reduction credits would
be translated into a commute vehicle reduction credit and credited towards the employer’s AVO
target.
Pros
• FlexibilIty . This alternative provides greater flexibility in meeting the AVG targets
of the ECO regulation.
• Influencina Behavior Is Not as Critical . Although this alternative compliance
method relies on reducing trips, it also provides employers with the opportunity
to replace some of the less effective trip reduction strategies with more effective
alternatives. Therefore, influencing employee behavior is not as critical a factor
in attaining the performance goals of EGO regulation.
• User-Friendly . This alternative allov . ;i employer to continue operating under
the framework of the existing EGO regulation that the employer is familiar with.
• Potential Cost Savings . Under this alternative, employers may experience
significant savings in compliance costs by replacing the less effective and more
costly trip reduction strategies with alternative strategies, while continuing to
implement existing trip reduction strategies that are effective at their work site.
• Air Quality Benefits . Unlike the existing ECO regulations, which rely on the
employer’s demonstration of good faith effort towards meeting the AVO target of
the ECO regulation, this alternative provides greater certainly that the AVO target
and the corresponding emission reductions would be met in a cost-effective
manner.
Clean Air Act Advisory Committee 34 DRAFT — April 26, 1995
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ECO Flexibilities Work Group Program Options
Cons
AdmInIstrative Burden on Local DIstrict/State . In order to implement alternative
emission/trip reduction strategies and receive credit towards the AVO target, local
districts/state agencies would have to develop calculation methodologies that
convert emission/trip reductions into creditable commute vehicle reduction units.
The SCAQMD has already developed calculation procedures for many of these
strategies.
• Potential Double-Countinci . Emission reductions from some of the alternative
strategies may overlap with other local, state, or federal regulations. A proper
tracking procedure must be developed to alleviate any potential double-counting
of emission reductions.
Where ft Has Been Tried/Considered
At its April 14, 1995, meeting, the SCAQMD Governing Board considered this alternative
as part of the alternative compliance options included in Proposed Rule 1501.1 — Alternative to
Work Trip Reduction Plans.
Legal Issues
Favorable interpretation of the Clean Air Act that would allow the implementation of this
strategy. Specifically, EPA should interpret the Clean Air Act to authorize compliance with the
ECO requirements by equivalent emission reductions. EPA has already established this
precedent by allowing this in the case of clean fuel vehicles. (USEPA, Employee Commute
Options Guidance, December 1992, p. 12). This precedent clearly leads to the conclusion that
emissions equivalency is an appropriate method for compliance with Section 1 82(d)(1 )(B) of the
Clean Air Act. We believe this interpretation is consistent with the Clean Air Act.
Clean Air Act Advisory Committee 35 DRAFT — April 26, 1995
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ECO Flexibilities Work Group Program Options
SEASONAL IMPLEMENTATION OF TRIP REDUCTION MEASURES
Description
To minimize the costs of administering ECO programs, employers have strongly
advocated implementing trip reduôtion measures at work sites only during the ozone season.
In Maryland, the ozone season begins April 1 and ends September 30. Initially, this flexibility was
not available to employers because EPA believes that ECO programs would be more successful
in modifying employee behavior long term through year round implementation.
Pros
• An employer could save money on trip reduction incentives that require the
employer to directly outlay money if incentives are only offered during part of the
year.
• Employees would only need to change their personal habits and restrict the use
of their personal car during part of the year.
Cons
• It may be harder and ultimately more costly for an employer to change employees’
commuting habits several times during the year. More intense marketing of trip
reduction measures may be required to turn commute trips on and off.
• Employees may find it more difficult to change their commuting habits and
personal schedules several times during the year.
.. The local transit authority may be forced to deal with large shifts in ridership rates.
between the ozone season and the non-ozone season.
• Employers would not be able to save money on reducing their parking lot size or
eliminating office space previously used by telecommuters if trip reduction
programs are not maintained year round.
• Air pollution reductions would be decreased.
• Roadway congestion would not be reduced during the non-ozone season.
Clean Air Act Advisory Committee 36 DRAFT — April 26, 1995
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ECO Flexibilities Work Group Program Options
Where It Has Been Tried/Considered
• In California, where an ECO-like program has been ongoing for several years, the
ozone season is year round and therefore, seasonal implementation is not an
issue.
• Seasonal implementation of trip reduction measures has been considered in
Maryland and Wisconsin.
• Seasonal implementation is allowed under Maryland’s ECO program.
Legal Issues
• Does the Clean Air Act allow for seasonal implementation?
• Can the idea of seasonal implementation be extended to an episodic strategy
where employers would activate emergency plans for employee commute trips on
predicted high ozone air pollution days?
Clean Air Act Advisory Committee 37 DRAFT — April 26, 1995
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ECO Flexiblilties Work Group Program Options
EMPLOYER ON-SITE EMPLOYEE COMMUTE OPTION ELECTIVE
Description
Some employers may elect to have, or continue to have, an on-site trip reduction program
rather than subscribe to such options as a regional plan, emission equivalence, etc. In addition
to offering this flexibility employers, it allows those who have had such a program to continue
to promote alternative modes of transportation. Employers would receive clean air credits and
other forms of recognition for their efforts.
Such employers could elect to have an on-site employee commute option program or
continue with their current plan. Programs would be tied to a “good faith effort’ and not to
specific targets. Employer policies could involve reduced trips, vehicle miles traveled, an/or
emission equivalence. Emphasis would be placed on recognition, marketing, and education as
the major tools to encourage involvement in this program. Such administrative procedures as
initial surveys, forms, plans, filing fees, monitoring, and tracking would not be required.
Clean Air Act Advisory Committee 38 DRAFT — April 26, 1995
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c
tOS7
UNITED STATES ENVIRONMENTAL PROTECT!O 1 AGENCY
,1o
WASHINGTON, D.C 20460
MAY 7 1995
OFFICE OF
GENE RAL COUNSEL
Honorable James C. Greenwood
U.S. House of Representatives
Washington, DC 20515
Dear Congressman Greenwood:
This letter responds to your request to Administrator Carol
Browner, following her testimony on February 9, 1995, before the
House Subcommittee on Oversight and Investigations, for a legal
opinion on the impacts of the Employee Commute Options (ECO)
program under Clean Air Act (CAA) section 182(d) (1) (B) on
employers and states.
As I understand your questions, you first ask whether
employers could be subject to suit under the ECO program.
Employers are subject to suit under sections 113 and 304 of the
CAA only if a State ECO program has been adopted by the State,
submitted to EPA, and approved as a revision to the State
Implementation Plan (SIP). Although all States subject to the
ECO requirement have adopted and submitted programs, only a few
have been approved by EPA as SIP revisions. Under these approved
SIPs,, employers could face suit for failure to comply with the
requirements of the federally approved SIP. Thus, whether an
employer could actually be subject to any liability depends
entirely on what the individual State program requires.
As EPA has noted to you in the past, EPA would approve a
State ECO program that did not require submission of individual
employer ECO plans, but rather relied on a regional State plan
for meeting the required increase in vehicle occupancy. Under
such a plan, employers would not be individually liable even had
EPA approved a SIP revision. I believe that several of the
approved ECO SIPs do currently require individual employer plans,
and could thus provide the basis for suit against an employer.’
Although EPA would not be inclined to take enforcement action
against an individual employer under section 113 of the Act,
private citizens could do so under section 304. Such States are
free to revise their SIPs to replace individual employer
requirements with regional approaches, thus relieving employers
y potential liability. .
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2
Whether employers could be subject to suit under adopted
State ECO programs as a matter of State law, without regard to
whether or not such programs have been approved by EPA, depends
on the requirements of each State’s laws. I am not familiar with
the individual State laws in this respect and am therefore unable
to address this issue.
Secondly, you ask whether States could become subject to
sanctions under section 179 of the Act for failure to implement
their adopted ECO programs. Such sanctions could be imposed
under the Act for failure to submit a complete ECO program,
disapproval of a program, or failure to implement an approved
program. All states currently subject to the ECO requirement
have already submitted ECO programs which EPA has found to be
complete, so sanctions for that failure would not be imposed on -
any state. As noted previously, EPA at this time has approved
several of those programs.
Where EPA has not yet approved a program and a State
affirmative.ly’ indicates that it will not be implementing its
program, such as through deletion of legislative authority, EPA
ultimately would be unable to approve the program. EPA is.
required by section llO(k) of the Act to take final action
approving ,or disapproving a SIP revision within 12 months of
finding the submittal complete. After that time, EPA could be
compelled to act on submitted ECO SIPs, and would have to
disapprove SIPS ifl the case of States that were not implementing
their. ‘programs. Under section 179, sanctions, in the form of
increased offsets for construction and modification of major.
stationary sources and limitations on federal highway funding,
would be imposed automatically 18 and 24 months, respectively,
after EPA disapproval of a SIP, unless the state submits and EPA
approves an acceptable program before that time. EPA intends to
work closely with each State to insure that EPA can approve an
acceptable ECO program before any sanctions would actually go.
into effect.
Finally, where EPA has approved an ECO program and the state
subsequently fails to implement it, sanctions could be imposed
only after EPA makes an affirmative finding of failure to
implement. EPA would be unlikely to do so in situations where a
State is working with EPA to develop and implement a satisfactory
ECO program.
In any sanctions situation, it is important to note that
such sanctions would not impose any additional liability on
individual employers apart from those previously mentioned
relating to failure to comply with the requirements of an
approved SIP.
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3
I trust this responds to the questions you posed to
Adi inistrator Browner. Should you need further clarification of
the requirements of the Clean Air Act please feel free to contact
me directly. -
Sincerely yours,
3 an C. Nelson
C al Counsel
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G. Fnissions Inventories/
Statements
-------
G. Emissions Inventories and Statements
G.1. Draft Guidance on the Implementation of an Emission
Statement Program -- July 1992
** Public Hearing Requirements for 1990 Base-Year Emission
Inventories for Ozone and Carbon Monoxide Nonattainment Areas - -
September 29, 1992 memo from John Calcagni [ See SIP Procedures
and Form section]
G.2. Guidelines for Estimating and Applying Rule Effectiveness
for Ozone/CO State Implementation Plan Base Year Inventories - -
November 1992
G.3. Guidelines for Estimating and Applying Rule Effectiveness
for Ozone/Carbon Monoxide State Implementation Plan Base Year
Inventories - - Nov. 2, 1992 memo from John Calcagni
G.4. Calculation of Rule Effectiveness f or Emission Inventories -
- May 26, 1993 memo from John S. Seitz
G.5. Ozone Nonattainment Planning: Decentralization of Rule
Effectiveness Policy - - Apr. 27, 1995 memo from Sally L. Shaver
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Gi-
DRAFT
GUIDANCE ON THE
IMPLEMENTATION
OFAN
EMISSION STATEMENT PROGRAM
-------
DRAFT
GuIDANcE ON THE
IMPLEMENTATION
OFAN
EMISSION STATEMENT PROGRAM
Office Of Air Quality Planning And Standaixis
Office Of Air And Radiation
U. S. Environmental Protection Agency
Research Triangle Park, NC 27711
July 1992
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CONTENTS
AC TOWLEDGE NTS . . . . . . . . . .
ABBP.EVI ATIONS . . . . . . . . . . . .
. .
. . . . . . . . . • , • • • • • • •. • • • • • • •
E CUTIVE SU) IARY • . . • • . . . . . . . •
• .1 • • • •
• . • S •
• • S S S
• a a e S
• • . S S
• . . .
• • • .
• . . •
• . . S
• . . .
• S • •
• S
• .
• S
• S
• •
• S
. • . 1
• . . S
• • • S
• S • •
• • . S
• S • S
• . . •
• S • •
• S • •
• S • •
• . . .
• . . S
• S ‘S •
• . 4 S
• . S •
Level
• S •
• S •
• . .
• S S
• . S
• . .
• S S
5
5
5
9
11
11
12
12
13
14
14
16
17
19
20
21
23
23
23
25
26
27
29
31
32
32
34
35
• 5 37
39
39
40
40
43
43
• . •
Page
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xi
xiii
1 • 0 I’rRoDuCTION . . • . . . . • . • . . .
1.1 Purpose . • • . • . • • • • .
1.2 Background
1 .3 Structure • . • • • • . • , •
2 . 0 GENER.AI.. PROVISIONS • . . . • . • . . • • • • , •
2.1 Waiver of Requirements
2.2 Optional Emission Statement Submittals •
2.2.1 State Implementation Plan Revision
2.2.2 Data and Status Report Submittal Dates
2.2.3 9 tional Data Elements . . • • .
2.2.4 Data Elements Overview . • . •
2.2.5 Outline of Recommended Source
and State Submittals . . . . . .
2.2.6 Source Supplied Data
2.2.7 State Supplied Data . . . • • .
2.2.8 Source and State Supplied Data
Elements by Plant, Point and Segment
2.2.9 Suggested Optional Data . . . .
2.3 State Submittals to EPA . . . . . • . .
2.3.1 AIRS Data Submittal . . . . . •
2.3.2 Emission Statement Status Report
2.4 Additional State Data Responsibilities •
2.4.1 Data Consistency . . . . . • • •
2.4.2 Data Confidentiality . . . • . .
2.4.3 Data Flow . . . . . • . . . • .
3.0- EMISSION STATEMENT REPORTING . . • .
3.1 Development of Reporting Format
3.2 Traditional Sources . • . .
3.2.1 AFP644 Report . . . •
3.3 Nontraditional Sources . .
3.3.1 Emission Statement Initial
4.0 DR Tr STATE REGULATION . • . .
§XX.010 Applicability . .
§XX.020 Preamble • . . . .
§XX. 030 Definitions . • •
§XX.040 Compliance.Schedule
§XX.050 Requirements . • . •
S
•
S
S
S
S S S S S S S 4 5 5
S S S S S S S S S S
• • S • 5 • S 5 • S
• S S S S S S S 5 5
• S • S S S S S S 5
Reporting Form
• S S • S
• S S S S
• S S S S
• S S S S
• S • S S
• S S S S
iii
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CONTENTS (CONTINUED)
5.0 POSSIBLE ACTIONS FOR NONCOMPLIANCE . . . . . .
Pace
47;
Base Year SIP Emission Inventory
EPPTracking . . . . . . .
Periodic SIP Inventories .
AIRS Faàility Sthsystem CAPS). and
SourceReporting . . . .
Permit Program . . . . . . . .
National Emission Trends . . .
Compliance Certifications .
Progress Toward Attainment
Rule Effectiveness . . . . .
7 0 FUTURE OF EMISSION STATEMENT REPORTING
8.0 RE ER.ENCES . . . . . . . • . • • •
APPENDIX A
LocatingSources . . . . . . . . . . .
APPENDIX B:
Example Certification of Data Accuracy .
APPENDIX C:
RE Percent Method Codes . . . . . . .
APPENDIX D:
Estimating Emissions . . . . . . . .
• . . 49
• . • 49
• . . 49
• . . 50
. . S • S • S • S S
• S • S S •
• S S • • S
• • S S S S
S S S S S S
• S S • • •
• S 57
• • . • . . . . . . 59
A—i
• . . • . . • . . B—i
APPENDIX E:
Excerpt from the AIRS SCC and Emission Factor Listing .
APPENDIX F
Example Emi.ssion Statement Status Report • . . . .
APPENDIX G:
Emission Statement Reporting Package for Traditional Sources
Part 1: Example Letter to Traditional Sources . .
Part 2: ExampleAFP644Report . . . • . . . . . .
Part 3: Example Instructions • . . . . • • . • • .
6.0 PROPOSED USES FOR EMISSION STATEMENT DATA • • .
6.1
6.2
6.3-
6.4
6.5
6.6
6.7
6.8
6.9
• S S S S S S
• S S S S S S
Annual Point
S S S
S S S
• S S
• S S
• S •
S
S
S
S
S
51
52
52
53
55
55
• S • S S S S S S C• 1
• . • ,• . • • . • D—i
S S
E-1
F-i
G-i
G-2
G-5
G-14
iv
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CONTENTS (CONTINUED)
APPENDIX H:
Emission Statement Reporting Package for Nontraditional Sources H-i
Part 1: Example Letter to Nontraditional Sources . . . . H-2
Part 3: Exaiiiple Initial Reporting Form . . . . . . . . . H-5
Part 2: Example Instructions . . . . . . . . . . . . . H—1O
APPENDIX I:
EPAFacilitylDCode ................,... I—i
V
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vi
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ACKNOWLEDGEMENTS
This report was prepared by Stephanie M. Stich, Kirstin Brust,
and Rebecca Battye of E.H. Pechan and Associates, Inc. of.Durham,
North Carolina. The work was conducted under EPA Contract No.
68-D9-0168 for EPA Project Officer Mary Ann Warner-Seiph at
(919) 541—1192..
vii
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viii
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ABBREVIATIONS
AFP644 Report AIRS APS Plant Emissions Inventory Report
AFS AIRS Facility Subsystem
AIRS Aerometric Information Retrieval System
CAA Clean Air Act
CAAA 1990 Clean Air Act Amendments
CFR Code of Federal Regulations
CHIEF Clearinghouse for Inventories and Emission
Factors
D&B Dun and Bradstreet
/CC Enhanced Monitoring/Compliance Certification
EPA U.S. Environmental Protection Agency
FACTS Facility and Company Tracking System
FINDS Facility Index System
PIPS Federal Information Processing Standards
GPS Global Positioning System
I/N Inspection and Maintenance
NAAQS National Ambient Air Quality Standards
ix
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NAPAP National Acid Precipitation Assessment
Program
NO Nitric oxide
NO Nitrogen oxides
NO 2 Nitrogen dioxide
NSPS New Source. Performance Standard
NSR New Source Review
OAQPS Office of Air Quality Planning and Standards
OIRM Office of Information Resources Management
- O Office of Management and Budget
ppm Parts per million
psi(a) Pounds per square inch (actual)
QA Quality Assurance
RACT Reasonably Available Control Technology
RE Rule Effectiveness
RPP Reasonable Further Progress
SANS SIP Air Pollutant Inventory Management
Subsystem
5CC Source Classification Code
x
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SIC Standard Industrial Classification
SIP State Implementation Plan
tpy Tons per year
VOC Volatile Organic Compounds
xi
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xii
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ULNLL.LVL -
Actual emissions: The actual rate of emissions of a pollutant
from an emissions unit for the calendar year or seasonal period.
Actual emission ,estimates must include upsets, downtime and
fugitive emissions, and must follow an “emission estimation
method.”
AIRS code: The 9.digit source identification: code used by the
Aerometric Information Retrieval System (AIRS). The code is
determined as follows: the first two digits are the State
- Federal Information Processing Standards (FIPS) code, the next
three are the FIPS county âode, and the last 4 digits are a
unique identifier for the emissions facilities in AIRS/AFS:
Annual process rate: The actual or estimated annual fuel,
process, or solid waste operating rate. The AIRS facility
subsystem source classification code table- prescribes the units
to be used with each source classification code.
Certifying individual: The individual responsible for the
completion and certification of the emission statement (i.e.,
off icer of the company) and who will take legal responsibility
for the emission statement’s accuracy.
4
Control efficiency: The actual total control efficiency achieved
by the control device(s). The actual efficiency should reflect
control equipment downtime and maintenance degradation. If the
actual control efficiency is unavailable, the design efficiency
or the control efficiency limit imposed by a permit should be
used.
Control equipment identification code: The AIRS/APS code which
defines the equipment (such as an incinerator or carbon adsorber)
used to reduce, by destruction or removal, the amount of air
xiii
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pollutant Cs) in an air stream prior to discharge to the ambient
air.
Emission factor: An estimate of the rate at which a pollutant is
released to the atmosphere as the result of some activity,
divided by the rate of that activity (e.g. production rate or
throughput).
Estimated emissions method code: A one-position AIRS/APS code
which identifies the estimation technique used in the calculation
of estimated emissions.
EPA Facility ED code: The Facility Index System (FINDS) facility
identification code, also known as the EPA faoility -
identification number. A number assigned by EPA to link source -
information between EPA databases.
Fugitive emission: Releases to the air that are not emitted
through stacks, vents, ducts, pipes, or any other confined air
stream, including fugitive equipment leaks, evaporative losses
from surface impoundments, and releases from building ventilation
systems.
Material balance: Technique used to estimate emissions from a
source by accounting for ‘the weights of one or more substances in
all— incoming and outgoing process streams.
Nontraditional sources: Those sources that have not previously
reported emissions (e.g., sources emitting 25 to 100 tpy of NO
and new VOC or NO sources).
Oxides of nitrogen: (or N0 ) In air pollution usage, this
comprises nitric oxide (NO) and nitrogen dioxide (NO 2 ), expressed
as moleculAr weight of NO 2 .
xiv
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DEFINITIONS
Actual emissions: The actual rate of emissions of a pollutant
from an emissions unit for the calendar year or .seasona]. period.
Actual emission stimates must include upsets, downtime and
fugitive emissions, and must follow an “emission estimation
method.”
AIRS code: The 9 digit source identification: code used by the
Aerometric Information Retrieval System (AIRS). Tile code is
determined as follows: the first two digits are the State
- Federal Information Processing Standards (FIPS) code, the next
three are the FIPS county âode, and the last 4 digits are a
unique identifier for the emissions facilities in AIRS/APS;
Annual process t e: The actual or estimated annual fuel,
process, or solid waste operating rate. The AIRS facility
subsystem source classification code tableS prescribes the units
to be used with each source classification code.
Certifying individual: The individual responsible for the
completion and certification of the emission statement (i.e.,
officer of the company) and who will take legal responsibility
for the emission statement’s accuracy.
4
Control efficiency: The actual total control efficiency achieved
by the control device(s). The actual efficiency should reflect
- control equipment downtime and maintenance degradation. If the
actual control efficiency is unavailable, the design efficiency
or the control efficiency limit imposed by a permit should be
used.
Control equipment identification code The AIRS/AFS code which
defines the equipment (such as an incinerator or carbon adsorber)
used to reduce, by destruction or removal, the amount of air
xiii
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pollutant(s) in an air stream prior to discharge to the anthien
air.
Emission factor: An estimate of the rate at which a pollutant is
released to the atmosphere as the result of some activity,
divided by the rate of that activity (e.g. production rate or
throughput).
Estimated emissions method code: A one-position AIRS/Al’S code
which identifies the estimation technique used in the calculation
of estimated emissions.
EPA Facility ID code: The Facility Index System (FINDS) facility
identification coda, also known as the EPA faoilit’y
identification number. A number assigned by EPA to link source
information between EPA databases.
Fugitive emission: Releases to the air that are not emitted
through stacks, vents, ducts, pipes, or any other confined air
stream, including fugitive equipment leaks, evaporative losses
from surface impoundments, and releases from building ventilation
systems.
Material balance: Technique used to estimate emissions from a
source by accounting for the weights of one or more substances in
all- incoming and outgoing process streams.
Nontraditional sources: Those sources that have not previously
reported emissions (e.g., sources emitting 25 to 100 tpy of N0
and new VOC or NO sources).
Oxides of nitrogen: (or NOR) In air pollution usage, this
comprises nitric oxide (NO) and nitrogen dioxide (NO 2 ), expressed
as molecular weight of NO 2 .
xiv
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Peak ozone season: That contiguous 3 month period of the year
during which the highest ozone exceedance days have occured over
a period covering the last 3 to 4 years. Most ozpne
nonattairunent areas have a peak ozone season lasting from June
thrpugh’ August. .The period used for the 1990 k ase year ozone SIP
inventory should be used for subsequent emissio i statements.
Percentage annual throughput: The weighted percent of yearly
activity for the following periods:
1) December-February
2) March-May
3) June-August -
4) September-November
Th first season (December-February) will encompass 2 calendar
years (e.g., Dec ‘92 - Feb ‘93). -
Plant: The total facilities available for production or service.
Plant level information (e.g., address, latitude/longitude, SIC
code) is a required component of emission statement reporting.
Point: A physical emission point or process within a plant that
results in pollutant emissions. A unique identifier (point
identification number) exists for each point within each facility
in. the AIRS database.
Potential to emit: The capability of a source to emit a
pollutant at maximum design capacity, except as constrained by
federally-enforceable permit conditions which include the effect
of installed air pollution control equipment, restrictions on the
hours of operation, and the type or amount of material combusted,
stored, or processed.
Process rate (identified as fuel process rate on the AIRS A1P644
repcrt : Quantity per unit time .of any raw material or process
intermediate consumed, or product generated through the use of
xv
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any equipment, source operation, or process. For a stationary
internal combustion unit or any other fuel burning equipment,
this term means the quantity of fuel. burned per unit time.
Rule effectiveness: A measure of the ability of the regulatory
program to achieve all the emissions reductions that could be
achieved by full ‘compliance with the applicable regulations at
all sources at all times. It reflects the assumption that
- regulations typically are not 100 percent effective due to
limitations of control techniques or shortcomings in the
enforcement process. EPA allows he use of an 80 percent default
value, but gives States the option to derive local, category-
specific RE factors.
SCC: Source Classification Code. An.eight-position code which
provides a detailed analysis of a process creating emissions at a
point. A listing of SCCs’ i be found in the EPA document AIRS
Facility Subsystem Source Classification Codes and Emission
Factor Listing for Criteria Air Pollutants.
Segment: Components of an emissions point or process, at the
level that emissions are calculated. One example of a segment is
a boiler burning #2 oil. A unique identifier (segment
identification number) exists for each segment within each point
and plant in the AIRS database. Each segment is also identified
by a SCC.
SIC code: Standard Industrial Classification code. A series of
codes devised by the Office of Management and Budget (0MB) to
classify establishments according to the type of economic
activity in which t1 ey are engaged.
Source test: Direct measurement of pollutants in the exhaust
stream(s) of a facility.
xvi
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Stack: A (smoke) stack or vent within a plant where emissions
are introduced into the -atmosphere. A unique identifier exists
for each stack within each facility in the AIRS database.
Stationary Source: Any building, structure, facility, or
installation which emits, or may emit, any air pollutant’ subject
to regulation under the Act.
Traditional sources: Those sources that have -traditionally
reported their emissions. Generally, larger sources that have
- previously been required .to submit emission information.
Transport region: A region covering multiple States which may be
•established by the Administrator whenever interstate transport of
pollutants contributes significantly to the violatioz ’of NAAQS.
Typical ozone season day: A day typical of that period of the
year during the peak ozone season. -
Volatile organic compounds (VOC): Any compound of carbon,
excluding carbon monoxide, carbon dioxide, carbonic acid,
metallic carbides or carbonates, and aitunonium carbonate, which
participates in atmospheric photochemical reactions. This
includes any such organic compound other than the fol-lowing,
which have been determined to have negligible photochemical-
reactivity: methane; ethane; methylene chloride -. - —.
(dichioromethane); 1 , 1 , 1 -trichloroethane (methyl chloroform);
1,1,1 —trichloro—2, 2, 2—trifluoroethane (CFC—113);
trichlorofluoromethane (CFC-1 1); dichlorodifluoromethane (CFC-
12); chlorodifluoromethane (CFC-22); trifluoroniethane (FC-23);
1 , 2-dichioro 1 , 1 , 2, 2—tetrafluoroethane . (CFC 114);
cbloropentafluoroethane (CFC-1 15); 1,1 , 1 -trifluoro 2,2-
dichioroethane (HCFC-123); 1,1,1 ,2-tetrafluoroethane (HFC-134a);
1 ,1—dichloro 1 -fluoroethane (HCFC-141b); 1 -chloro 1,1-
difluoroethane (HCFC-1 42b); 2-chloro-1 , 1 , 1 ,2-tetrafluoroethane
xvii
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(HcFC-1 24); pentafluoroethane (HPC-1 25); 1 ,1 ,2,2, —
tetrafluoroethane (HFC-1 34); 1 ,1 , 1 -trifluoroethane (HPC—1 43a);
1,1 -difluoroethane (HFC-1 52a); and perfluorocarbon compounds
which fail into these classes — (1) cyclic, branched, or linear,
completely fluorinated alkanes, (2) cyclic, br nched, or linear,
completely fluorinated ethers with no unsaturations, (3) cyclic,
branched, or linear, completely fluorinated tertiary amines with
no unsaturations, and (4) sulfur containing perfluorocarbons with
no unsaturations and with sulfur bonds only to carbon and
fluorine.
xviii
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EXECUTIVE SUMMARY
The 1990 Clean Air Act Amendments (CAAA) require increased
reporting and tracking of emissions. The emission statement
requirements have been developed to be consistent with several
other reporting requirements. Thus, emission statement data will
provide information useful for the development, quality
assurance, and completeness of several emission reporting
requirements, including: tracking of reasonable further progress
(RPP) periodic State Implementation Plan (SIP) inventories,
annual Aerometric Information Retrieval System (AIRS) Facility
Subsystem CAPS) submittals, the operating permit program (Title
V), emission trends, and compliance certifications. The future
of emission statement reporting includes the ultimate goal of
consolidating these reporting requirements into one annual
effort.•
This document contains technical guidance for the
development and implementation of an emission statement program.
It is not meant to be interpreted as zeq ring or mandating any
of the provisions discussed. I purpose is to provide an
interpretation of the 1990 Clean Air Act Amendment requirement
for emission statements by addressing which sources are subject
to emission statements, what constitutes an emission statement,
what should be submitted, and suggested dates for these
submittals. EPA plans to revise the Code of Federal Regulations
to incorporate emission statements. The process will include an
opportunity for full public notice and comment on the provisions.
Such a revision will allow EPA to require the submittal of
appropriate emission statement data and status reports.
The basic requirements of the CAAA, Section 182(a) (3) (B) are
reviewed in this document. ct i n ‘182(i) ( Y(3)’ é iJ.’res that
dès .gn d asrionitta.innient for ozone requ .re
e ss cn statementdata fr sourcô.T v iatile g ni
1
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Based upon sections 184 (b) (2) and 182(f) of the CAAA, the
sources
&aia$ra e i &r6 ?
ai%’. ?V.A WY S... S. . . A .fl.... .55.5 . . •fl. .55A 5...tS 5 5 5 . y. CAYAA • ..5 t...A5.. .
actua ant .a&j of vac
emiIit5&i nonatWiänênt ake ñ if the class or category is
included in the base year and periodic inventories and emissions
are calculated using emission factors established b& EPA (such as
those found in EPA publication AP-42’) . or other methods
acceptable to EPA. -
.5 7 Y .fl” %44 5 Y A55 S... -
Whaten4niiminpor .ng 1ea fl %$ Ushedj if’ either
sc awea t ;s. bovd t ffl e 4 th koflntant
thou) e n ott 4djnjYthWYa sin”frtitêieitWei’jf it , 5 is
äi! ó
to
allow use of the emission statement data in the preparation of
the annual point source data submittal to EPA under 40 CFR
51.323.
2
-------
(to
:6n rj enf4 i6çs),
The individual data
elements are described in detail in sections 2.2.6 and 2.2.7 of
this document. The emission statement data elements were
developed to be consistent with other source and State reporting
requirements. This consistency is essential to assist States
with quality assurance for emission estimates and to facilitate
consolidation of all EPA reporting requirements.
I l l addation to the emission itateitent s ibmittal, States
shàü pi ide to E3, A a jt Ltèpoct that out rihes the degree of
thmi t pçôgrâsC egin&n 3 u1y
1Zfli U14Jep jthfl i mber
ç a;em nt )thvf ions, the
ub iaij kje ;om 4i g i4t4 s1 Jktk ±ni : s & pxyv siorks
4 4.u4j p Q P?t 1 :ualj t
? I T O&€1 ‘ iaac&i , &rr ioeraicr nc bi r cCed for
iul& : ,qectiveness ( ) SrSeIihc üld Inc 1Ü 1 i f1 ir siat us
repó t a list of o ceI j F a I j.i en s b tting their
imi s1oxi’ st*en4nti 114 thi ff 599 Jtp orJ i qf !QC or, 2500
4 fr€err2
4 j$Sag jitea
t W ‘t” S.’Y
States should maintain adequate records of emission
statement data and source certifications of emissions submitted
to them by sources for a period of at least three years to allow
for review or verification of the information as needed.
3
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States are responsible for reviewing the consistency of the
emission statement data with other available data sources and for
resolving any inconsistencies with the facility. 6u1’ÔrauI
— ç t1, nat MN S s,2the ’ St t hbü1d entèt the
4cxIX$taât4jM&AYS b ‘ : i h jè i?
States should coordinate this activity with
other reporting requirements to avoid deleting valuable data in
the AIRS database:.
a
States
should send traditional sources, that is, tilos& with emission
data already in the AIRS database, the source’s AIRS A1P644
report for review and/or correction. NontraditiQnal sources,
those who do not have emission data on file with the EPA, should
be sent an Emissio n Statement Initial Reporting Form. In both
cases, the reporting form or report should be accompanied by an
explanatory letter and detailed inStructions. €Ô1iii”’thé
5@ti5n ot de ré1d iWth’iir b i ssiô itethihie ôft2
.. • 1 t ,wr*c.’wt”n 1 ye t
;f.. S tate
Eiré3u 1d”b
it emiütThiti,é1tj4 j1Fiff&gué téd’inhitSá ént{ibibn
t#meñt 4atiiri iaicw
Tie rOvrsians’gut’tThi a’ii 2i 4 If€
&gk r .ake aa* I4eaf
t ‘ bS fl . . #A ... y A”’
;eJ1e*Uie nt men thee emiss entiprog EPA
is anticipating pursuing the rulemaking process to require
submittal of the emission statement data. This process will
occur after an opportunity for full public notice and comment is
provided.
4
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1.0
1.1 Puri,ose
The purpose of this document is to provide guidance to State
agencies for the development of their emission statement
programs. 1n addition, this guidance meets the requirements of
section 182(a) (3) (B) of the CAAA by prescribing a form for the
submission of annual emission statements.
The EPA is working to coordinate the emissions reported for
several programs. Part of this effort involves maintaining
consistency in the emission data reported for emission -
statements, the annual point source submittal, and the SIP ozone
emission inventory. To achieve this goal, the VOC and NO
emissions values obtained under the emission statement program
should be used in the annual point source submittal and in the
SIP ozone emission inventory.
1.2 2ackaround
On November 15, 1990, amendments to the Clean Air Act (CAA)
were enactea. Title I of the CAAA requires, among other things,
that States with areas designated nonattainment of the ozone
National Ambient Air Quality Standards (NAAQS) establish
regulations for annual reporting of actual-emissions by sources
that emit VOC or NO in the nonattaininent areas. Based upon
sections 184(b) (2) and 182(f) of the CAAA, emission statements
are also required from sources in attainment areas within ozone
transport regions which emit, or have th potential to emit, 50
tpy or more of VOC, or 100 tpy or more of NOR.
Emission statements are intended to assist the State
agencies in their reporting and analysis of emission estimates.
The emission estimates reported on emission statements will be
5
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useful in the annual tracking of emission reductions. This
tracking will help to monitor the progress that areas make
towards attainment of the ozone NAAQS.
.Section 182(a) (3) (B) of the CAAA, which contains the
requirements for emission statements, reads as foliows:
Emission statements. - “(i) Within 2 years after the
date of the enactment of the Clean Air Act Amendments
of 1990, the State shall submit a revision to the State
implementation plan to.require that the owner or
operator of each stationary source of oxides of
nitrogen or volatile organic compounds provide the
State with a statement, in such form as the
Administrator may prescribe (or accept an equivalent
alternative developed by the State), for classes or
categories of sources, showing the actual emissions of
- oxides of nitrogen and volatile organic compounds from
that source. The first such statement shall be
submitted within 3 years after the date of the
enactment of the Clean Air Act Amendments of 1990.
Subsequent statements shall be submitted at least everz
year thereafter. The statement shall contain a •
certification that the information Oontained in the
statement is accurate to the best knowledge of the
individual certifying the statement.
(ii) The State may waive the application of clause (i)
to any class or category of stationary sources which emit
less than 25 tons per year of volatile organic compounds or
oxides of nitrogen if the State, in its submissions under
subpara graphs (1) or (3) (A), provides an inventory of
emissions from such class or category of sources, based on
the use of the emission factors established by the
Administrator or other methods acceptable to the
Administrator.” 2
Section 184(b) (2) of the CAAA states that stationary sources
which emit, or have the potential to emit, 50 tpy or more of VOC
Sen ozone transport regions are considered major sources. These
sources are subject to all regulations which apply to major
stationary sources within moderate nonattainment areas. The
emission statement requirement applies to sources in marginal and
above ozone nonattainment areas and therefore also applies to
6
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these sources of VOC In ozone transport regions. Section
184(b) (2) of the CAAA reads as follows:
“...For the purposes of (control of interstate ozone
air pollution) any stationary source that emits or has
the potential to emit at least 50 n per_year of.
volatile organic compounds shall be considered a major
stationary source and subject to the requirements which
- would be applicable to major stationary sources if the
area were classified as a Moderate nonattainment
•. area.” 3
Section, 182(f) extends the requirements for major sources of
VOC in ozone transport .regions to major sources of N0 . Section
182(f) reads as follows:
“The plan provisions_z quired under (subpart 2) for major
stationary sources of volatile organic compounds shall also
apply .to major stationary sources (as defined in seQt .on
302...) of oxides of nitrogen’ TM
• Section 302(j) defines a major stationary source of oxides
of nitrogen as:
“any stationary facility or source of air pollutants which
directly emits, or has the potential to emit one hundred
tons per year or more of any air pollutant” 5
Therefore, the emission statement requirement is extended to
include sources in attainment areas within ozone transport
regions which emit, or have the potential to emit 100 tpy or more
of NO or 50 tpy or more of VOC.
Additionally, if a source emits at least the minimum
established reporting .level of VOC or NO (for example, 25 tpy or
more in an ozone nonattainment area), and the other pollutant is
emitted at less than 25 tpy, then the other pollutant should also
be included in the emission statement. Likewise, for sources in
attainment areas of ozone transport regions, if a source emits at
least the minimum estab1ishe reportin èvèl of VOC or NO (for
example, 50 tpy of VOC or 100 tpy of NOR), then the other
7
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pollutant should be included even if it is emitted at levels
below the specified cutoffs. This provision is consistent with
that for SIP emission inventories.
• Sissiol statement ôrâisions ‘call for emisiion
ätht t s JSrom some sources I ; are not ctir±ently included .n
fl a4jo4pt o qe £P ! St A P€ :t ;sEs jj 4 tory:
the
t : o ea: thAt &re h t c I €W éovéred
iii7tbà a nual point sonrdé sWuittalor the SIP emission
£ i ter?€ó ’y but should sthmit ai emission stemex, Ire new VOC-
2 SpnP.. k4Ue.s.k PQ3wYP. r id that
cana4!IA afte :t nOZSftè jourq e j incltified In the
a4 ir bint source su mittai beciuse thej èm&tliis,Jhan 300 tpy
!CC and 4zey were ,omitte Jjqm he j,950 base ypar inventory
.c k .# i .it”tha tii&.
rt fià ‘voc ii a u uéfl ‘ :s
transport regions that eni&t beb(een 50 and tot) AtPYVOC have not
Previóts3.t been incli$ed Ln ”eit1i : of th& two ‘èmiIsiàn *e orting
programs and will now be kequested to submit pission statements.
Wheãffi-oftfqr Ca kU Lso rce)4 tittal, J!k Scjt
fl4$9 ic xràe 4y iiãe4fli d j ta tã I 7tfl gq
jYdrCsiab4€tats ;‘ ti t àipi ’4Ctô a k ea
EPA is
anticipating pursuing the rulemaking process to require submittal
of the emission statement data. States should therefore consider
8
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setting up their emission statement programs to require that this
information be submitted.
t.3 Structure
This guidance document is structured as follows. The
general provisions are presented in the next section. Emission
statement reporting is discussed in section 3.0, and includes a
suggested reporting format. A draft State regulation is
presented in section 4.0. Possible actions for noncompliance
with the emission statement provisions are discussed in section
5.0. A discussion of the possible uses for emission statement
data is provided in section 6.0, and the future of emission
statement reporting is examined in section 7.0.
9
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10
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2.0 GENERAL PROVISIONS
This section discusses the conditions under ‘..
emission statement requirements may be waived, det
recommended emission statement data, describes rec
submittals, and reviews other State data responsik
2.1 Waiver of Reauirements
j i j’
• * 4 . . .
a ofl çtua1 pLan1w;ae )TC
e odiè £ ve ri i d iilià ions aj alcuia
j s ion acto s e tabX 1 b T 3suc i ose
pu i.icat ion fln t d4 a eptab2.e ta
should get clearance from the approprIate EPA Regi
waive the emission statement requirement for these
sources.
E r r hou h sq ir ni.ttiii g 25 1a
or can be exemp é4 £t nt emiss ion statement réqt
m ynà be advanta eous â States t 4o o Thes
sources can produce a significant amount of emissic
particularly in urban areas. In addition, larger
already been controlled to a great extent and the r
sources to regulate and/or monitor are these smallE
Also, for the base year and other required inventox
sources emitting 10 tpy or greater emissions in nor
areas must be inventoried. States may want to set
statement threshold at least this low to allow use
statement data in preparing emission inventories.
For assistance in locating sources who have nc
submitted emissions data to AIRS, see Appendix A.
11
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2.2 Optional Emission Statement Submittals
The following section describes the source and State
supplied information that EPA is requesting to be submitted as
part of the emission statement program, and details the proposed
data elements. Submittal due dates are presented, and a list of
suggested optionaL data elements is provided.
2.2.1 State Implementation Plan Revision
S • . S S
i
te with attainmeA+. a ã h A 6 €sp r t ’ regioné.
T1 I ;evisiôn s u 3 t c i 3 € or hive t1 è
t e 4 tpy
mj dsSiøn stat nin The revised SIP should require the
submission of annual emission statements from owners or operators
of these applicable stationary sources of NO,, or VOC.
Emission statement SIP revisions will be subject to a “Table
2 “ level of review in which EPA headquarters (OAQPS) will be
allowed a 30 day period in which to review the SIP revision and
provide comments. Final approval authority, however, will reside
-with the Regional Administrator. A notice in the 54 P 2214-2225
January 19, 1989 Federal Register initially defined a system for
SIP decision authority by establishing three categories of SIP
revisions (Tables 1, 2 and 3). Under the Table 2 level of review
for SIP actions is listed, “Any other action not listed
elsewhere.” The emission statement SIP revision would fall in
this category because it does not appear in Table 1 or Table 3.
12
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2.2.2 Data and Status Re ort Submittal Dates
The annual emission statements should include the estimated
actual annual and typical ozone season day emissions of NO
and/or VOC, by segment within the facility. The CAAA spebify
that the first statements are due from the facility to the State
(or appropriate local agency) no later than three years after
enactment of the CAAA, and must represent emissions during
calendar year 1992. pc eF eo: ft :4 T bCt a4ces to
t. nfl ” - “ c-_- - ‘- “ 'e .#- •— t rt v ’ ‘c ’ ‘çQc.’.- to
squ ce ubflttal: 7 t ihtch is’ due :eøi year on Ju1y, 14 ,JtCS
redommended that the dtxe date f& the faSt eniisiion Eä€ements
statement data can be used by
the States to prepare the required annual point source submittal.
‘ a lit
The emission statement program establishes a data collection
procedure and provides segment level emission data to assist in
the development of estimations. In order to facilitate the
ultimate goal of synchronizing all industry reporting
requirements, coordination between emission statement and other
reporting requirements, such as the annual statewide point source
submittal, and the periodic nonattainment inventory submittal, is
strongly recommended.
P aSa tPc flt & aM M a
•‘W fl ? ?’ ‘##. ‘ W’ W ’
g sjj ; tt’4iè i át r E jL jb t g p &ir .
flq Iy \ba i 2f4fl i I ed. It
uIdItherc fore ben fsflhe fitat& r,e sqjt )n April 15
S 4 4 Et i C tt 4 x
13
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2.2.3 Optional Data Elements
Furthermore, States may want to request sources with
emissions of 502 over 100 tpy, CO over 1000 tpy, or lead over 5
tpy to also report under the emission statement provisions. This
emissions data could then be used by States to prepare their
annual APS submittal to EPA. By gathering these data under the
emission statement program, States would eliminate the use of two
different reporting mechanisms for their annual A l’S submittal.
2.2.4 Data Elements Overview
Sources are requested to submit specific data elements to
the State ( or ppQopriate. local agency) in order to tomply with
emission statement reporting. The data elements are, to the best
extent possible; consistent with other EPA reporting requirements
and with EPA data systems.
Under the State-wide point source reporting requirements
program and currently as part of the SIP emission inventory
requirements, data elements that describe source identification,
- operating schedule, emissions information, control equipment, and
process data are required to be submitted to EPA and are included
in the AIRS database. U1i ?Thi emiie ora&E çxa ht tjn ; jome
fjhese datfl1ernei ts qed o j id é t4f ed
r es3 ps flcl afihiS
• _ _
-*, — —— •
By compiling the, emission statement data, facilities and
States should be better prepared to meet subsequent reporting
14
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requirements and to provide better quality assurance of emission
estimates. In addition, the EPA will be better suited to work
towards the ultimate goal of compiling all emission reporting
requirements into a single annual effort.
\ a . . . A - . - c’,
i f
‘ i ff1üflhe SbIkièz Uda flSct8fl n.nb1 !r&Fof “the
.a &fl A Y.A “a c .ya A W .. . a -Q vv Aa y
t AWA .W ‘W .4flfl . .flJ . N W t .flhA y 4 W •
We SØMpte
A%W %A% W . ( “ fl . .1
t b’Thtate of emissrons proviaea by source! WtIIC)
doèiiment t±on would precludp ?erifiba€ron of t W eikimat a if it
aLin conflict with the Sta€e’ s’ or RPA’i’ &iTh .tbn istrute -- For
complete emission statement reporting, data, is requested from
both sources an ” tates. These suggested data elements are
discussed in detail in sections 2.2.6 and 2.2.7.
The AIRS system has been modified to compute rule
effectiveness adjusted emissions at the SCC pollutant (segment)
level. Therefore, States may use this feature to calculate RE
emissions. However, States should ensure that adequate RE
information is provided to AIRS so that an accurate adjustment
can be made. The necessary data elements to compute RE adjusted
emissions are listed as requested emission statement data.
At present, EPA is making changes in the application of RE
and in the input of RE data into AIRS that could affect emission
statement reporting. Any changes in RE that apply to emission
statements will be addressed in a later guidance.
15
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2.2.5 Outline of Recommended Source and State Submittals
i a : of rec j i cà and States
far the êmissiøn statement to ii’ i bI1ow The
EPA requests Sources to provide the following:
• Identification of plant
• Operating information
• Process rate data
• Control equipment information
• Emissions estimates
• Certification of data accuracy
EPA requests States to provide the following:
• SIP revision by November 15, 1992
• Identification codes (AIRS, point, segment)
• Value for rule effectiveness
• Source emissions data entered annually into AIRS
• Quarterly emission statement status report
• Specification of peak ozone season to source
16
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2.2.6 Source Supplied Data
èu ce’ ia ntif ica€i ‘±nf ဠ±&f rov±ded by
1±e ’S1ate ç r ‘sho ld
(1) Full name, physical location, and mailing address
of the facility,. (2) Latitude and longitude and (3) 4 digit SIC
code(s).
Sources should supply their latitude and longitude
consistent with EPA’S Locational Data Policy Implementation
Gui dance. 6 The guidance, which contains detailed procedures and
guidelines for implementing locational policy, recommends the use
of a global positioning system (GPS) to most accurately determine
latitude and longitude. While sources have the main
responsibility for determining their latitude and longitude, for
improved accuracy of these locational coordinates, States should
assist sources as needed.
An alternative method for locating a source’s latitude and
longitude is ,for States to provide a Geological Survey
topographical county or regional map with locational coordinates
to each source. The source can determine latitude and longitude
by locating the facility on the map.
SIC codes and their descriptions can be found in the
Standard Industrial Classification Manual, published by the
Office of Management and Budget.
th
rcè’ ‘ tà the ‘ Stâte
(1) Percentage annual throughput (percentage of annual activity
by season), (2) Days per week on the normal operating schedule,
(3) Hours per day during the normal operating schedule, and (4)
Hours per year on the normal operating schedule.
17
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a eWcqY 1 ’Th d : (1) Annual
process rate (annual throughput) 3 , and (2) Peak ozone season
daily process rate.
_____ _________
(1) Current primary and secondary control equipment
identification codes, and (2) Current combined -(if primary and
secondary control equipment is used) control equipment efficiency
(%). Valid control equipment identification codes are presented
in Appendices G and H. States may need to assist the source in
determining the type of control equipment that the source is
using.
•*
The ‘ thiñimum Si &sibiis ii fthña€±bt &ibu “ S
We” State (or atpr6priat local’ áqenã) (1)
Estimated actual VOC and/or NO emissions at the segment level,
in tons per year for an annual emission rate and pounds per day
- for a typical ozone season dat, (2) Estimated emissions method
code, (3) Calendar year for the emissions, and (4) Emission
factor (if emissions were calculated using an emission factor).•
Valid estimated emissions method codes are presented in
Appendices G and H.
In the event that emission factors are utilized in the
calculation of emissions, a source should use emission factors
that are approved by EPA or the State. Otherwise, the source
should petition the State for approval of their emission factors.
‘If annual process rate is given for a fuel process, the
data must represent the amount of fuel burned. If the annual
throughput is given, then the throughput must correspond to a
specific 2CC.
bPounds per day information is included because most SIPs
and SIP rules are predicated on pounds per day.
18
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_ _
I ce th t1 &ia€n t ffe’ beitm1roctIaWC 8flhflSdWL 1Z
i taj3iiu ’the t?flemeñt The individual certifying the
statement should be a official of the company who will take
legal responsibility for the emission statement’s accuracy. A
sample certification of data accuracy form is provided in
Appendix B.
2.2.7 State Supplied Data
dd 1iFLS
] Q gç9qwIqnde ThktiSt4tes tippl ’ zer 4
acadiU.bnil tti élSent 4ticiVare nedêüüy Lot thejtuxiual State
submi at ‘imi sion t statement info;ütiohnto the. At S
ata1 ,ast.” ?hese data ihc1udésoürce i4én\ jficaffbxflñforraa ton
and e4isith informitaoh.
1 Wé ‘ minimum source ’idèn€1 iiSf± n fo*ináti& ö övfded
the €ehbiiIaiiio l’ude : C l) MRS code, (2) A l ’S point number
(ID), and (3) Al’S segment number (ID).
The MRS code may be assigned prior to sending the Emission
Statement Initial Reporting Form to the facility.
t ó * c
ri& 5eit 1a ffdtiId : (1) SCC Cs) and descriptions for each
segment, (2) Current RE factors at the 5CC pollutant level, if
applicable, and (3) RE method code Cs). Valid RE method codes are
provided in Appendix C.
States should be aware of the control efficiency applied by
a source so that the appropriate emissions values are reported.
The emission estimates should be neither over or under corrected
as a result of rule effectiveness.
19
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In addition, States should inform sources as to when the
peak ozone season ocdurs, to ensure an accurate estimate of their
typical ozone season daily emissions. Information on determining
the peak ozone season is provided in Appendix D.
SCC information is provided in the document, AIRS Facility
Subsystem, Source Classification Codes and Emission Factor
Listing for Criteria Air Pollutants. An excerpt from this
document is provided in Appendix E.
2.2.8 Source and State Supplied Data Elements
by Plant, Point and Segment Level
e ques e at spic E X äperation7’The sou cè d
S ata 4ata 4emexts re egc ize u çe
Pi tieve1’ tã’ I : (1) Full name, physical
location, and mailing address of the facility, (2) Source 9 digit
AIRS code (supplied by the State), (3) Source latitude and
longitude, (4) 4 digit SIC code, and (5) Calendar year for the
emissions.
Poiñf level ena sidri ‘ in i t : (1) Percentage annual
throughput (percentage of annual activity by season), (2) Days
per week on the normal operating schedule, (3) Hours per day
during the normal operating schedule, (4) Hours per year during
the normal operating schedule, and (5) AFS point number (supplied
by the State).
S n’è tt Ie éIé ñ €à : (1) Estimated actual VOC
and/or NO emissions at the segment level, in tons per year for
an annual emission rate and pounds per day for a typical ozone
season day, (2) Emissions method code, (3) SCC for each of the
20
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emission estimates (supplied by the State unless the source has
this information), (4) Current primary and secondary control
equipment identification codes, (5) Current control equipment
efficiency (%), (6) Annual process rate (annual throughput), (7)
Peak ozone season daily process rate, (8) Rule ‘effectiveness
factor at the SCC pollutant level (supplied by the State), (9)
Rule effectiveness method code (supplied by the State), (10) AFS
segment number (supplied by the State), and (11) Emission factor
(if emissions were calculated using an emission factor).
2.2.9 Suggested Optional Data -
States may augment the recommended emission statement data
to better quantify local issues and/or concerns. tèé hay add
häte eI ata e1emê’ tk)est s fe i kd i bwe the
o11owin a a é]é nt a g if iti6xis to the
ein s’iioii’atateinèxit data ‘out1ii éd e
ootThnal tircé i i €1O1 o mát’iónc : (1)
Latitude and longitude method code, (2) Latitude and longitude
textual description, (3) Latitude and longitude estimation of
accuracy, (4) Stack identification, (5) Number of employees, (6)
Plant contact, and (7) Plant phone number.
(1) Days per week
of operation during the peak ozone season, (2) Weeks of operation
during the peak ozone season, (3) Start time on both the normal
operating schedule and on a typical ozone season day, and (2) End
cThese data elements are included in the Office of
Administration and Resources Management’s Locational Data Policy
Imp1e n&itation Guidance, February 1992, (Publication number 220-
B—92-008) as necessary locational data that will have to be
collected in the future in addition to latitude and longitude.
APS will be modified by early fiscal year 1993 to support these
additional data elements.
21
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time on both the normal operating schedule and on a typical ozone
season day.
Sè € è hfó i : (1) Speciated VOC
emissions, and (2) other criteria pollutants including sulfur
oxides (IO ), part i.culate matter (PM 10 ), lead and carbon monoxide.
Capture
efficiency (%). This is a measure of the volume of pollutant
captured or recovered relative to the volume of pollutant
generated.
• iial (1) Design
capacity, (2) Fuel use data (i.e., heat content), (3) Tank data
(i.e., vapor pressure, vapor mole weight, diameter, height, age,
loading type, color, fixed roof tank information, and floating
roof tank information), and (4) Solvent usage data (i.e., solvent
purchased, and solvent reprocessed).
Sde t & “ t ciC Stack parameter
information (i.e., height and diameter).
22
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2.3 State Subthittals to EPA
biüittals
• a .
d i ’
-
2.3.1 AIRS Data Submittal
Eeg in4t i “ n ) 9fl , 1 Sj j 4 ] 4
ditab iebyJi 1 M 1t* After this date, data should be submitted
when it is received from sources. A due date of April 15, 1993
for emission statement reporting from the source to the State (or
appropriate local agency) will facilitate the State’s July 1 AIRS
submittal deadline. hmurseroWiE Wn !It aata siibipittal to
nn Troni ‘the source and the
a ’
2.3.2 Emission Statement Status Report
J tikff flM ttk)I1
tdtEal npmber of
ics1ideé wr ‘rc rr a S j 1 (± 1*A the
Sber at S $ttkiwsSi&tsji ct*er of
Thi Y j flj
s u4d e t3tid7óri’ a “qIàrteriy basis
t EM bfifô látèr €han July 1, beginning in 1993. This report
wi).I be a üarter1y iubnu.ttal until l’the regulated sources
hà i ëoiüj3Ue d.1 d cpóIan i*V?tbI ‘ tSi1 äycIe begins
23
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IS
5 y 7Ea9t Ht :c u n rtwrci1
• $ ? •
pg Jsqr y, j h RE-gprrecte& and non RE-
c@ffipX d, )j t 4 d flofl 44 j t) s4 tSe4, 44ss4on
A detailed listing of the minimum data
recommended for the Emission Statement Status Report submittal to
EPA is contained in the following text. An example format for
the Emission Statement Status Report is provided in Appendix F.
J j ? .& #* fl “VWV# “ t.#W”YØ C •t• A Y ?Y
R Or* submittal :to wA. ,in&nd e sourcwideattffcation i.nformation
• ••th. n •Nww • •• .•• ,.*• •
Ø Th ThY ’ m fi ’rf iff6 i : : oi ±aa T fo all
sdâicèê wiS&ThIl”td”s iir iI1ofltàt inenbian d emit 500 thy
VOC “ 5O0 t yf &7hWtfth fIEflWóüld ‘±ñcl’üdè :
(1) Full name of the facility, (2) County code in which the
facility is located, (3) AIRS facility ID code, and (4) EPA ID
code (FINDS code) for the facility (if already assigned by EPA).
fè& iii
aH&i : Actual VOC and/or NO emissions totaled for all
sources which submitted emission statements, in tons per year for
an annual emission rate and pounds per day for a typical ozone
season day, both RE-corrected a.nd.non RE-corrected.
24
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2.4 Additional State Data Responsibilities
atei:)e ‘ S ón i e ‘ 4i rèsoSinó iIé ir á é
in sistèi1e w the 2 SPAU eu pridiF tS luhinittal of he
To avoid data incoxisfltéiic±és,
States need to be available to assist sources, particularly
nontraditional sources, with the preparation of the emission
statement data.
a4 ti e&i ra ánd” ä zdéii flt th
% W wilT ils&Iie?d [ t fiifbha sources
of h( iik oAes4iorr fc&the £IIEcIC
&o ‘ t:4a
4 fpigri ij :44as A4 icn ti4j y jhàe
$ije3 àId Uje 1O tc Scs P i 4a e, :a t , ai la
êkU4E o A j ki, scc
4i ant Jjyelfl1 euijd tJ eent j pe üii 4j r the
WV W %WW WWY WW. , wy m
suI t heSt e: but are recomEeMed forCt1 e State
nbnicttal t hi AIRrdatabase , The State could pref ill the
above information prior to forwarding the emission statement form
to the source. The State should prefill the 5CC number and
description prior to forwarding the form to the source if the
source does not have this information so that the source can
accurately compute its emisflons and process rate data. States
could obtain SCC information by sending out a survey to sources
requesting descriptions of the processes that a facility carries
out. Prior knowledge of these processes would enable the State
to fill in the appropriate SCC before sending out the emission
statement form. It is recommended that States submit all data,
d’iether provided by the source or the State, into the AIRS
‘database.
25
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tit s j ulc! main an. e uat ç Qd & 4p i
: o : c*2 T S4i !:
thear by I rees forc?U a t tm alèiif’flWiW e rtnua
f j rev iew or verification ’ of the ihformatioñ ‘ as rIee ed .
In order to ensure proper data flow into the AIRS database,
States need to be ,cognizant of the timing -ct -different emission
reporting requirements.
2.4.1 Data Consistency
‘ y.x. .* mo’#. •
jçpflv tr
w V •.• . ‘ .‘
ptEefacilityj the data ,should fr venfaed €nn sure
fl hiCi ttmüàiri7ci iáGhàbIé àr4 ‘th i±et(ewnaa tUte
. . c. ..
i i such estimates ‘exist. If the estimate was made
using an emission factor approach, the State should compare the
emission factor, the activity data, and the control efficiency
‘ list
assumptions. If source testing was used to determine the
facility estimate, the State may compare the estimate with an
emission factor estimate for relative magnitude or
- reasonableness. Finally, if the estimate represents an
engineering judgement or a material balance, the State may wish
to provide additional guidance to the facility on how they would
like the estimate to be made.
Using either EPA or State-supplied emission factors, the
AIRS database can be used to calculate emission estimates. If
sources use emission factors to calculate their emissions, States
should input the emission factors used by the sources or
reconcile the sources’ emission estimates with the EPA or other
State emission factor. Alternatively, sources could submit their
input data to the State without actually calculating their
emissions. Emission estimates could then be generated by AIRS
using EPA’s or the State’s emission factors and sent back to the
source for verification and certification. States can use any
26
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method to verify consistency in emission values they choose.
However, States should make sure that the source-certified
emission values are identical to the non RE-corrected emissions
in the AIRS database.
2.4.2 Data Confidentiality
The EPA has provisions for maintaining the confidentiality
of a limited number of process rate data elements in the AIRS
database. Process rate information may be considered
confidential by EPA if it is confidential business information
and constitutes a trade secret. Th ’ ati èlemênts’re tiested for
i .on tatements that inky be coxisidered confidential include
nThalp ocess rate and peak ozone season daily process rate.
EPA published a policy statement in the February 21, 1991
Federal Register (Vol. 56, No. 35) regarding EPA’S views on the
confidentiality of certain emission data. The statement,
entitled “Disclosure of Emission Data Claimed as Confidential
Under sections 110 and 114(c) for the Clean Air ACt, d
specifically excludes emission data from the general definition
of trade secret information for certain classes of information
submitted to EPA under sections 110 and 114 of the CAAA.
Ei i iiori jtatei iiti ar su itthd under section 110 of the CAAA,
a s ge a34 da tha are u gge ted eIUi S1pn data
7j & np
• S. c W S bV. W4
an
%‘ ?%WS’9Y’”Q .t. %s vc w •‘ ‘,—‘ .Sd s.’ w t’Q%(.# tv... y’ ‘.“
__ S IC
__ __ scc’
If States have questions on specific data confidentiality issues,
they should contact their EPA Regional Office on an individual
basis.
dSection 1905 of.Title 18 of the United States Code.
27
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2.4.3 Data Flow
The CAAA require that a SIP revision, which includes a
provision for an emission statement program, be submitted by
November 15, 1992. In addition, the CAAA require that the first
set of emission statements, representing 1992 emissions, be
submitted to the State agency no later than November 15, 1993.
Again, EPA strongly recommends that, the State agencies schedule
the first emission statement data submission for April 15, 1993
and annually on April 15 thereafter. This schedule will allow
time for verification of the data prior to the July 1 AIRS/M’S
data submittal, which coincides with the due date of the annual
point source submittal. Emission statements request the same
information as that reported for the point source submittal, with
the addition of peak ozone season daily process rate. for
determining typical ozone season day emissions.
Many types of data are housed in the national AIRS/AFS
database. It is important for State agency personnel’ reporting
emission statement data to understand and coordinate with other
agency reporting activities to APS. A potential to override data
exists when different agencies (e.g., local and State) or
different personnel within an agency update the AIRS database.
State agencies should develop and implement procedures to ensure
that one set of submittals do not override other submittals -
accidentally. For example, when sthmitt g permit, emission
statement, periodic SIP or other data in AFS batch format, it is
important to run the AFS “trial dummy update” to fully understand
how the data in the system will change following the update.
When uploading data from the SIP Air Pollutant Irtventory
Management System (SANS), the M’S compare preprocessor compares
the newly submitted data with the existing data in the AIRS
database. The results from the preprocessor tell the user
whether the new information is a “change”, meaning the new data
is different. from that currently on the database, or if it is an
28 /
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“add”, meaning the data does not exist on the A l ’S database
currently. States should refer to Al’S guidance for more detailed
information on the data submittal process. F 9 IV
a ec cz 444 Jâ data u ating
L4 fS
29
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30
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3.0 EMISSION STATEMENT REPORTING
. l ioweverflhè SAAA 1i.Xâw States to
Emissions data is requested both from facilities that have not
previously been asked to submit emission information and from
facilities familiar with emissions reporting. Therefore, the
emission statement reporting format needs to accommodate
different levels of emission estimation experience. TàIdhiw ’e
c h no L g axF uê burden
& J flif’ zo fre€wn itii dould aaopt ’ Thiare&iseion itatement
èbLtiii £oS&t 7Usiii ‘this ioaaç thdi dohii ‘sources,
tJiöI&iItiôse emfñSâfi Abe’ in’ the ‘AIRS da €abáàê. ‘tu]4 sup ly
.n#. .‘..tb. ..w . s..ee. .*
ffiiaS oQS; &40 LW t State (or a *tatd roc& agency)
ffy ui4the1i flflé 6rt $:4k64n4 et * s n output
AtERS
databisé MM N iErasn T biIrâ i mole mmw
ei1Isib is at 42.e 1fthe’ EwCwàtiXCbp ; * Elission
SE4emenS initi4jtepoçti6j Tori& After the State has entered
the nontraditional source’s first year’s data into AIRS,
subsequent emission statement reporting provisions could be met
by supplying the source with their A1P644 report for revision.
R dLesir pOçtii flQrm t’ 4 d yJqu çtes to
•/dfl %. ..flw W . ; .w• mn t 1 qw -w,,pw .. - ‘
cer f Ey the qcuracy ‘4 theSç
ss opka emêj9 cm1ls1on itatemeiIC 4s g nde
xi t test
áti ãäüräcj The certifying individual should be an officer
of the company who will take legal responsibility for the
emission statement’s accuracy; An example emission statement
certification of data accuracy is given in Appendix C.
31
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3.1 Develoiment of Reporting Format
The following format for emission statement reporting is
presented as an option for States to consider. It is not
necessary for States to collect the emission statement data in
the format proposed in this document. States are requested,
however, to submit the emission statement data to the EPA by
updating the AIRS database. The emission statement data
collected by the State should be sufficient to meet the EPA
previsions outlined in section 2.2 of this document.
3.2 Traditional Sources
States should send traditional sources copies of their AFS
data as presented in the APP644 report accompanied by
instructions and an explanatory letter stating that the data
elements be updated and certified for accuracy. The requested
data elements for emission statement reporting should be
highlighted so that the source can easily identify the data that
need to be reviewed.
Appendix G, Part 1 contains an example explanatory letter to
be used as an example of appropriate correspondence from the
State to traditional sources. The letter contains background
information on the emission statement provisions and details the
facility’ ’ obligations. Appendix G, Part 3 contains instructions
to assist sources with the update of their emissions data using
the APP644 report. The letter and instructions are intended as
examples of appropriate State guidance to sources. This or
similar information should be forwarded to sources along with
their APP644 report. An overview of methods for estimating VOC
and NO,, emissions is. given in Appendix D.
32
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It is important when States submit emission statement data
to the AIRS database that a source be entered into AIRS only once
and that the AIRS code and all locational data for the source be
accurate and complete. This procedure allows EPA to correctly
assign an EPA facility ID code. States shculd be aware of
whether a source already exists in the AIRS database, or is an
addition to the database before entering its emission statement
data. In addition, States should verify that an EPA facility ID
Code has been assigned to each new facility whose emission data
have been submitted to AIRS. EPA is replacing all references to
NEDS/CDS IDS with the EPA facility ID code. EPA updates and
assigns these codes on a regular basis. Therefore, States should
be able to review sources’ AFP644 reports during the year
following the sources’ initial data submittal to AIRS to
determine the EPA facility ID code. A more detail d•discussion
of the EPA facility ID code is found in Appendix I.
The source should mark directly on the A1P644 report to
indicate any changes or corrections. The report should then be -
—forwarded to the State (or appropriate local agency) for State
agency personnel to review the new information for consistency.
Any inconsistencies should be reconciled between the State and
the facility. The State should then enter the emission statement
data into AIRS. Data formats and field lengths of emission
statement data elements are specified in the AIRS User’s Guide-
Volume IX: AFS Data Dictionary. 7
Alternatively, the State may request that sources submit the
emission statement information in a machine readable format, or
in some other format developed by the State, to ease the APS
update process. Regardless of the reporting mechanism used, it
remains the State’s responsibility to detect and resolve
in cnsis .encies in facilities’ emission statement data prior to
entering the data into the AIRS database.
33
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3.2.1 APP644 Report
The proposed emission statement reporting format for sources
with emissions data in AIRS (i.e., traditional sources) is the
APS M’P644 eport. See Appendix G, Part 2 for a sample AFP644
report. - The AFP644 report can be. accessed via the AFS default
report menu or via the ad,hoc batch (Quick Look) report screens
by designating a report type of “TE” for specifying plants above
a “Threshold Emissions” level. The actual menu selection is
called “default”. T1 e AFP644 output format is predefined, but it
can be customized to print various levels of data (plant, stack,
pOint, segment, or any combination). When using the quick look
“TE” option to create the APP644 report, if no threshold emission
level is set, the user should request that the system only report
emission values greater than zero. This request may
significantly reduce the length of the report. The quick look
“TE” option also allows the user to select several facilities for
which the system should generate AFP644 reports. Using this
option, numerous sources’ reports can be generated and printed in
one job.
Although the AFP644 report can be accessed by running the
quick look repørt type “TE”, some States may prefer to run AFP644
as a fixed format report. Screens within the fixed format allow
the user choices, such as selecting the level of emissions, which
States may find useful.
The APP644 report was specifically created to serve asa
turnaround document for State and/or local agencies to send to
facilities. However, States may wish to alter the report prior
to sending it to the source to highlight requested data fields
and/or adjust the formatting. The report may be altered by
sending it to a file rather than a printer. A report saved to a
file will be in DOS text format and may be altered by using any
34
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of the numerous available text editors or word processing
packages. States may also use APS to generate mailing labels.
AU data elements that are requested £çom Qurèe& Lor
e mrstatem tre iiig are highI1 itéd oflhséi piê
&?S4Ae t i
The sample facility (plant) represented in the example
report is composed of 2 stacks, 3 points, art 5 segments. On the
A1P644 report, specific emission statement information is
requested under different levels (i.e., plant, point, and
segment) of operation. Plant information is primarily
identifying information. Point data are collected for individual
‘ is
stacks or storage tanks and segment level information is
collected below the point level. For example, if a boiler
operates on either oil or natural gas, as in the example AFP644
report, emissions would be reported for segment 1 for the burning
of oil and far segment 2 for the combustion of natural gas. Each
segment represents a separate process.
States may use an equivalent alternative to the APP644
report and instructions, however, the minimum emission statement
data elements, as outlined in section 2.2 of this document,
should be included. It should be kept in mind that States are
requested to enter the emission statement data into the AIRS
database regardless of the emission statement reporting
mechanism.
3.3 Nontraditional Sources
Nontraditional sources, those with no previous emissions
data on file with the EPA or State, should be sent an Emission
Statement Initial Reporting Form to report their first year’s
35
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emission statement data. The form should be accompanied by an
explanatory letter and detailed instructions to assist the
sources with accurately completing the requested information.
Appendix H, Part 1 contains an example explanatory letter to
be used as an example of appropriate State correspondence to
nontraditional sources. The letter provides background
information on the emission statement provisions, introduces the
initial reporting form, and discusses the facility’s obligations.
Appendix H, Part 3 contains example instructions to sources for
completion of the Emission Statement Initial Reporting Form.
These in9tructions are intended to assist States in developing
adequate guidance to ensure consistent emission statement data
reporting by sources. Both the letter and instructions are
provided as examples. However, States should send this, or
similar information, to the source along with the initial
re p ting form. As mentioned previously, an overview of methods
for estimating VOC and NO emissions is given in Appendix I D.
D J previous
einissi n data in thë
certain descriptive inf oxmá irab th i ’sti h as €heir
scç. and s; o e
1 vèl, and póint a d segien are
asked to augment nontradi n l cSue (’ei1 iori êt ment
should pref ill the
Emission Statement Initial Reporting Form with the above
information, where practical. The States should supply the SCC
and its description on the Emission Statement Initial Reporting
Form (if the source does not have this information) in order for
sources to accurately identify their emissions. The SCC
description will let the source know what the SCC refers to. It
is not necessary to enter this description into AIRS because AIRS
automatically provides a description of the SCC upon entry of the
5CC into AIRS. As stated earlier, knowledge of a source’s
36
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processes could be obtained from a survey sent out to applicable
facilities, and this information would enable the State to fill
in the appropriate SCC before sending out the emission statement
form. The remaining State supplied information may be filled in
by. States after sources complete the forms. States should also
be available to assist sources in determining the correct
information for other data elements.
The State should submit all emission statement data, whether
provided by the State or the source, to the AIRS database. Once
the source has completed the form and the data are entered into
the AIRS database, subsequent emission statement provisions may
be met by sending the source their AIRS AFP644 report for review
and/or correction. Data formats and field lengths of emission
statement data elements are specified in the AIRS User’s Gp4 e
Volume IX: AFS Data Dictionary.
3.3.1 Emission Statement Initial Reporting Form
Appendix H, Part 2 contains an example Emission Statement
Initial Reporting Form that can be used by States to forward to
nontraditional sources for emission statement reporting. The
form consists of four pages, one page each for plant and point
data and two pages for segment level emission statement data. A
second page for the segment level data was developed to
acconimodate States who wish to collect additional pollutant data
through the emission statement process. The additional segment
page is not necessary for emission statement reporting; VOC and
NO data are sufficient.
A shaded “For State Use Only” section is provided for
requested State suppL.ed data. As previously stated, States
should prefill as much of .his information as possible prior to
send.ing the form to the source. Specifically, sources need to
know the SCC and its description in order to correctly compute
37
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their emissions and determine the appropriate units for reporting
process data. The State should supply this information to
sources that do not have access to it. As previously stated, the
SCC description does not need to be reported to the AIRS database
because the system will provide the appropriate description once
the SCC has been entered. The purpose of the description is to
aid both source and State personnel working with the forms to
understand the type of process for which information is being
requested.
The initial reporting form also contains AIRS update screen
numbers. These screen numbers will be helpful for States that
plan to update the AIRS database in an interactive mode. States
using the AIRS batch transmittal may disregard the update s r en_
information. The correct format for AFS batch transmittal can be
obtained from the State or Regional AIRS contact or by contacting
the National Air Data Branch of the EPA.,
When submitting data to AFS using either on-line update
screens or batch transmittal, NO emissions data (which include
both NO and NO 3 ) should be reported under the data, field “NO 2 ”,
the appropriate pollutant code. NO is not a valid pollutant
code for APS.
States will need to coordinate with the source to ensure
that the initial reporting form is adequate to cover all points
and segments at the plant. The number of pages sent to the
source should reflect th number of points and segments
determined to exist at the plant.
The initial reporting form is provided as an option for
States to use. States may use alternative reporting forms as
long as the minimum emission statement data elements are
provided. . -
38
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4.0 Draft State Reaulation
The following draft model State rule can be utilized in the
development of the State’s emission statement program. The model
rule i intended as an example, it does not represent the basis
- of the criteria that EPA will use to evaluate and approve the
State SIP. However, by following the information presented in
this guidance aocuinent and in the model regulation, States should
be able to develop an acceptable regulation and thereby an
approvable SIP.
A few States have attainment areas in ozone transport
regions. As previously noted, these areas are subject to
emission statement requirements. If States do not have such
regions, section CC.01O of the draft State regulation should be
modified to delete the reference to attainment areas in ozone
transport regions.
§XX.010 Ai licabilitv
This regulation applies to all stationary sources with
emissions of oxides of nitrogen (MOn) or volatile organic
compounds (VOC) in nonattainment areas and also sources which
emit, or have the potential to emit, 50 tpy or more of VOC or 100
tpy or more of MO in attainment areas within ozone transport
regions, with the following exceptions.-
Classes or categories of facilities with less than (25 tons,
or appropriate State cutoff] per year of plant-wide actual VOC or
NO emissions are exempted from this requirement because these
sources are included in the base year and periodic emission
inventories. In (insert State], the following facility classes
or categories are exempted from the emission statement
requirement: (insert list].
Additionally, if either VOC or NO is emitted at or above
the minimum required reporting level, the other pollutant must be
included even if it is emitted at levels below the specified
cutoffs. --
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§XX.020 Preamble
This draft regulation was prepared in response to section
182(a) (3) (B) of the 199.0 Clean Air Act Amendments which requires
the preparation and submission of annual emission statements.
Required emission statement data includes plant, point, and
segment information. Facilities are required to provide their
emissions information at the segment (i.e., process) level only.
§XX.030 Definitions
AIRS Facility Subsystem CAPS) codes as discussed in these
definitions may be found in the APS Data Dictionary. The Data
Dictionary can be accessed online through the Time Sharing Option
(TSO).
As used in this regulation, the following terms are defined
as follows:
(A) “Actual emissions”: The actual rate of emissions
of a pollutant from an emissions unit fo the
calendar year or seasonal period.
(B) “Annual process rate”: The actual or estimated
annual fuel, process or solid waste operating
rate.
(C) “Certifying individual”: The individual
responsible for the completion and certification
- of the emission statement (i.e., officer of the
company) and who will take legal responsibility
for the emission statement’s accuracy.
CD) “Control efficiency”: The actual total control
• efficiency achieved by the control device Cs).
CE) “Control equipment identification code”: The
AIRS/APS code which defines the equipment (such as
an incinerator or carbon adsorber) used to reduce,
by destruction or removal, the amount of air
pollutant(s) in an air stream prior to discharge
to the ambient air.
(F) “Emission factor”: An estimate of the rate at
which a pollutant is released to the atmosphere as
- the result of some activity, divided by the rate
of that activity (e.g. production rate or
throughput).
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(G) “Estimated emissions method code”: A one-position
AIRS/APS code which identifies the estimation
technique used in the calculation of estimated
emissions.
(H) “Fugitive emission”: Releases to the air that are
not emitted through stacks, vents, ducts, pipes,
o any other confined air stream, including
fugitive equipment leaks, evaporative losses from
surface impoundments, and releases from building
ventilation systems.
(I) “Oxides of nitrogen”: (or NOR) In air pollution
usage, this comprises nitric oxide ‘(NO) and
nitrogen dioxide (NO 2 ), expressed as molecular
weight of NO 2 .
(J) “Peak ozone season”: That contiguous 3 month
period of the year during which the highest ozone
exceedances days have occured over a period
covering the last 3 to 4 years. Mos ozone
nonattainment areas have a peak ozone season
lasting from June through August. The period
used for the 1990 base year ozone SIP inventory
should be used for subsequent emission statements.
(K) “Percentage annual throughput”: The weighted
percent of yearly activity for the following
periods:
1) December -February
2) March-May
3) June-August
4) September-November
The first season (Dec-Feb) will encompass
2 calendar years (e.g., Dec ‘92 - Feb ‘93).
CL) “Plant”: The total facilities available for
production or service. Plant level information
(e.g., address, latitude/longitude, SIC code) is a
required component of emission statement
reporting.
CM) “Point”: A physical emission point or process
within a plant that results in pollutant
emissions. A unique identifier (point
identification number) exists for each point
within each facility in the AIRS database.
(N) “Potential to emit”: The capability of a source
to emit a pollutant at n ximthn düign capacity,
except as constrained by federally-enforceable
permit conditions which include the effect of
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installed air pollution control equipment,
restrictions on the hours of operation, and the
type or amount of material combusted, stored, or
processed.
(0) “Process rate”: Quantity per unit time of any raw
material or process intermediate consumed, or
product generated through the use of any
equipment, source operation, or process. For a
stationary internal combustion unit or any other
fuel burning equipment, this term means the
quantity of fuel burned per ,unit time.
(P) “Segment”: Components of an emissions point or
process, at the level that emissions are
cal ulated. One example of a segment is a boiler
burning #2 oil A unique identifier (segment
identification’ number) exists for each segment
within each point and plant in the AIRS database.
Each segment is also identified by a 5CC.
(Q) “SIC code”: Standard Industrial Classification
code. A series of áodes devised by the Office of
Management and Budget (0MB) to classify
establishments according to the type of economic
activity in which they are engaged.
CR) “Stack”: A (smoke) stack or vent within—a plant
where’ emissions are introduced into the
atmosphere. A unique identifier exists for each-
stack within each facility in the AIRS database.
CS) “Stationary source”: Any building, structure,
facility, or installation which emits, or may
emit,, any air pollutant subject to regulation
under the Act.
CT) “Transport region”: A region covering multiple
States which may be established by the
Administrator whenever interstate transport of
pollutants contributes significantly to the
violation of National Ambient Air Quality
Standards.
(U) “Typical ozøne season day”: A day typical of that
period of the year during the peak ozone season.
CV) “Volatile organic compounds (VOC)”: Any compound
of carbon, excluding carbon monoxide, carbon
dioxide, carbonic acid, metallic carbides or
carbonates, and anunonium carbonate, which
participates in atmospheric photocheinical
- 42
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reactions. This includes any such organic
compound other than the following which have been
determined to have negligible photochemical
reactivity: methane; ethane; meth.ylene chloride
(dichioromethane); 1 , 1 , 1 -trichioroethane (methyl
chloroform); 1 , 1 , 1 -trichloro-2 , 2, 2-trifluoroethane
(CFC—1 13); trichiorofluoromethane (CFC-1 1);
dichiorodifluoromethane (CPC-1 2); -.
chiorodifluoromethane (cFC-22); trifluoromethane
(FC—23); 1 ,2-dichloro 1 , 1 ,2 , 2—tetrafluoroethane
(CFC 114); chloropentafluoroethane (CFC-11 5); -
1 , 1 , 1 -trifluoro 2 ,2-dichloroethane (HCFC-1 23);
1 .1 , 1, 2—tetrafluoroethane (} C—i 34a); 1 , 1-dichioro
1 -fluoroethane (HCFC-1 41b); 1 -chioro 1 , 1-
difluoroethane (HCFC-1 42b); 2-chloro-1 , 1 , 1 , 2-
tetrafl ioroethane (HCFC-1 24); pentafluoroethane
(I C—125); 1 ,1,2,2,—tetrafluoroethane (HPC-134);
1,1 ,1—trifluoroethane (HPC—143a); 1,1—
difluoroethane (HFC-1 52a); and perfluorocarbon
compounds which fall into these classes - (1)
cyclic, branched, or linear, completely
fluorinated alkanes, (2) cyclic, branched, or
linear, completely fluorinated ethers with no
unsaturations, (3) cyclic, branched, or linear,
completely fluorinated tertiary amines with no
unsaturations, and (4) sulfur containing
perfluorocarbons with no unsaturations and with
sulfur bonds only to carbon and fluorine.
§XX.040 Compliance Schedule
(A) The owner or operator of any facility meeting the
applicability requirements stated in §XX.O1O must
submit an emission statement to the State (or
appropriate local agency] on an annual basis
beginning no later than April 15, 1993 (or
whatever date the State selects], for the previous
calendar year. The emission statement shall
include, at a minimum, the data outlined in
§ OC.O5O(A).
§XX.050 Reauirements
(A) The emission statements submitted by the source to
the State (or appropriate local agency] shall
contain (at a minimum) the following information:
(1) Certification that the information contained
in the .statement is accurate to the best
knowledge of the individual certifying the
statement. The certification shall include
the full name, title, signature, date of
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signature, and, telephone number of the
certifying individual.
(2) Source identification information:
(a) Full name, physical location, and
mailing address of the facility
(b) Latitude and longitude
Cc) SIC code(s)
(3)_. -Operating -information:
Ca) Percentage annual throughput by seasàn.
The first season (Dec-Feb) will actually
encompass a two year period. (e.g.
- December 1991 through February 1992).
The remaining seasons (Mar-May, Jun-Aug,
Sept-Nov) represent one calendar.. year
(e.g., 1992).
(b) Days per week on the normal operating
schedule
Cc) Hours per day during the normal
operating schedule
Cd) Hours per year during the normal
operating schedule
(4) Process rate data:
(a) Annual process rate (annual throughput).
The AIRS facility subsystem source
classification code table prescribes the
units to be used with each source
classification code for annual fuel
process reporting
(b) Peak ozone season daily process rate.
The AIRS facility subsystem source
classification code table prescribes the
units to be used with each source
classification code for peak ozone
season daily process rate reporting.
(5) Control equipment information:
(a) Current primary and secondary AFS
control equipment identification codes
(b) Current control equipment efficiency
(%). The actual efficiency should
reflect the total control efficiency
from all control equipment and include
downtime and maintenance degradation.
If the actual control efficiency is
unavailable, the design efficiency or
the control efficiency limit imposed by
a permit should be used.
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(6) Emissions information:
(a) Estimated actual VOC and/or NO
emissions at the segment level, in tons
per year for an annual emission rate and
pounds per day for a typical ozone
season day. Actual emission estimates
must include upsets, owntiine and
fugitive emissions, and must follow an
“emission estimation method”.
(b) APS estimated emissions method code
Cc) Calendar year for the emissions
Cd) Emission Factor (if emissions were
calculated using an emission factor)
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5.0 POSSIBLE ACTIONS FOR NONCOMPLIANCE
• •A • W.• V.V W•• VYW V YW• VV Y”V.ff V WV h . V
bi rrthe :4. th j& : statements’ ate, a required
çompp e t Af a State’s ffit nqçthpijanc yith è emsision
€ tfrà i.4öiià à b 1 d i?Ô4 t bi” a v 6iitiàC6f the’ E’€aYe
a’. .V..a V.a•a , . a ’ ’a , • ‘ — ‘ a W..a #. .&. V.. .1... sa . a.. .. a.. .. .. ..
k1€EL 4Yt Any SIP not containing a provision for
emission statements will be considered deficient.
Section 113(a) (1) of the CAA describes possible penalties
that could be applied to sources if they do not meet the CAAA
- requirements for emission statement reporting. States should
refer to the CAA for a description of the sanction options.
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6.0 PROPOSED USES FOR EMISSION STATE NT DATA
The CAAA require increased reporting and tracking of
emissions. The EPA believes that the submission of accurate
emission statement data will be helpfuL for the development,
quality assurance (QA), and completeness of several emissions
reporting requirements including: tracking of reasonable further
progress (RFP), periodic SIP inventories, annual AFS submittal,
the operating permit program (Title V), emission trends, and
compliance certifications. In addition, the submission of
accurate emission estimates by the facilities, and then by the
State agencies, will facilitate other State and EPA programs that
require emission estimates. These programs include regional
deling efforts, control strategy development, economic analyses
of control strategies, and special projects such as r rts to
Congress.
6.1 Base Year SIP Emission Inventory
Section 182(a) (1) of the CAAA requires all ozone
nonattairunent areas to submit a comprehensive, accurate, current
inventory of actual typical ozone season day emissions from all
sources within 2 years of enactment. The first inventory (base
year) is due by November 15, 1992, and covers actual typical
ozon season day emissions in 1990.
6.2 RPP Tracking
A primary purpose for emission statements is to assist EPA
and the States in the determination of RFP in meeting the NAAQS.
Annual emission statements will greatly enhance the State
agency’s ability to track RFP emission reductions. Emission
statements will help monitor growth in an area or source
category.
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As part of the RIP program, moderate and above ozone
nonattainment areas must reduce their VOC emissions by at least
15% within 6 years after enactment of the CAAA. A 15% reduction
is generally thought to be adequate for moderate areas to attain
the ozone MAAQS within the applicable time frame, although a
modeling analysis is required to determine if additional
reductions are ne,cessary to attain the ozone NAAQS. In addition,
serious and above ozone nonattainment areas must achieve VOC
reductions after the initial six year period equal to an average
of 3% annually until attainment of the standard is achieved.
These emission reductions are referred,tó as “milestones.”
States must adopt specific measures as part of their control
strategy to meet the 15% and 3% per year requirements.
6.3 Periodic SIP Emission Inventories
Section 182(a) (3) requires that ozone nonattainment areas
submit periodic inventories every three years until the area is
redesignated to attainment. The EPA is recommending that States
synchronize their schedules for developing the periodic
-inventories so that the second periodic inventory, which is based
on 1996 emissions and is required by the CAAA no later than
November 15, 1998, is actually submitted early in 1997 (by -
February 13, 1997). By accelerating preparation and submittal of
the 1996 periodic inventory, the milestone demonstration
(required under section 182 (g)) that Ls due for serious and
above areas by February 13, 1997 can be based on this periodic
inventory. If similarly accelerated, future periodic inventories
would then also coincide with subsequent milestone
demonstrations. -
The information included in annual emission statements will
facilitate the development of such periodic SIP inventories.
Submission of actual annual typical ozone season day emissions
and operating information will provide internal QA checks that
50
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will assist in the development of accurate estimates. It should -
be noted, however, that emission statements alone do not
constitute an overall emissions inventory. Emission statements
will not reflect area, mobile, and biogenic sources. These other
types of sources may also contribute significantly to the
composition of accurate emission inventories.
6.4 AIRS Facility Subsystem (APS) and Annual Point Source
Re ,ortinci
AIRS is EPA’S database far airborne pollution in the United
States. APS, one of four subsystems within the AIRS database, is
a national software system which contains emission and compliance
information for individual facilities. Data from the emission
statements will be used to update and augment current AP
information.
The Office of Air Quality Planning and Standards (OAQPS),
which maintains the AIRS database, requires State agencies to
submit annual APS reports for all stationary sources emitting
over 5 tons per year of lead, 1,000 tens per year of carbon
monoxide or over 100 tons/year of any other criteria pollutant.
This requirement is detailed under Title 40 of the Code of
Federal Regulations, Part 51, section 51.321 — 51 .323.
It is hoped that the emission-statement provisions and their
compatibility with SIP reporting requirements will assist the
States in obtaining better data from the facilities and that this
will result in more accurate, frequent, and emplete APS
submittal by the State agencies
States may use existing State computer systems for gathering
and reviewing emission statement data. However, the data should
ultimately be entered into AIRS/APS by the State.
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6.5 Permit Program
Within 3 years of enactment of the CAAA, States must submit
proposed permit programs to EPA for approval. Sources subject to
the prograxnmust submit complete permit applications within 1
year after a State program is approved by EPA or, where the State
program is not approved, within 1 year after a program is
promulgated by EPA. Permits will be for a fixed term, not to
exceed 5 years. Sources should develop a permit application with
data that correspond with their emission statement information.
Permit programs shall. be submitted by major sources starting in
November of 1992, and approval by EPA shall take place within one’
year of this submittal. Permit applications are due starting in
November of 1994, and a permit shall be issued within 18 months
after the application is received by EPA. The permit regulations
were proposed in the Federal Register, May 10, 1991, Volume 56,
number 91, pages 21712 - 21781. The permit program regulations
will be located in Part 70 and Part 71 of Title 40 of the Code of
Federal Regulations.
Emission statements will assist State agencies in the review
of permit program data by providing a data source for the quality
assurance of permit applications. When emission statement
programs are implemented across all nonattairunent areas, the
State agencies will not be limited to emission data from
facilities in their State, but can access relevant data across
the nation. Emission statements will be a requirement contained
within the Title V permit program.
6.6 National Emission rends
National emission trends are computed annually using the
previous year’s economic and production data and standard
emission factors to develop and revise trends in emissions. The
national emission trends estimation methods were developed to
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provide a surrogate indicator of the nation’s emissions.
Kistorically, national emission trends have not accounted for
plant by plant variations in emissions.
When new data are introduced or the emission estimation
procedure is revised, the national emission trends are
recalculated for the previous years, back to the year 1940.
Recalculation ensures that emissions are calculated using a
consistent method thereby illustrating trends in emissions and
not changes in the estimation method. The national emission
trends req ire annual computation of area and mobile source
emission estimates.
The national emission trends estimation procedures are
undergoing revision so that the national emission trends
estimates correspond more closely with the State totals as
reported through APS. In addition, there is new focus on
regional trends in emissions. Emission statement data will be
utilized by EPA in the new national emission trends procedures.
6.7 Compliance Certifications
The EPA will publish enhanced monitoring and compliance
certification (EM/CC) rules in accordance with Title VII of the
1990 Clean Air Act Amendments. The following information is
based upon the Public Information Document dated August 1991 and
may or may not be part of the final regulations. 8
Section 702(b) of the CAAA empowers EPA to require certain
stationary sources of air pollution to install and operate
enhanced monitoring equipment and to submit compliance
certifications.
The owner or operator of a major stationary source must
certify compliance with all applicable requirements under the
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CAAA to the permitting authority at least annually. If the
source fails to be in compliance, quarterly deviation reports
based on enhanced monitoring must be submitted to the permitting
authority until the source meets the emission limits or standards
applicable to a “major” pollutant. As currently proposed, the
quarterly deviation reports will be required only if actual
dEviations based upon enhanced monitoring are noted.
Furthermore, the deviation reports will be similar to excess
emissions reports currently submitted under the New Source
Performance Standards (NSPS) program and will include information
pertad.ning to both the emissions unit and the monitoring system.
The specific infor nation required in the annual compliance
ertification will bç detailed in the forthcoming EM/CC
regulations. As stated in the August 1991 Public Information
Document, “the monitoring system must provide, where available, a
direct measurement of emissions, or if direct measuremnq t is not
economical or technologically available, then the most reliable
compliance data on the most frequent basis that is
reasonable. . •“ Currently, the quartarly deviation reports are
required to have the fellowi ig information: (1) the number and
- duration of deviations from the standard that are documented by
the enhanced monitoring system, (2) the reason for deviations and
the corrective/preventative action taken in response, (3) the
number and duration of incidents during which the monitoring
system was not operating or was not producing valid data and the-
reasons, corrective action and preventative actions taken, (4)
‘basic source identification, and (5) total operating time of the
emissions unit during the reporting period.
Enhanced monitoring data will play an’ important role in the
verification of emission statement information. This data will
be available from sources subject to EM/CC rules.
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6.8 Proaress Toward Attainment
The primary purpose of requiring SIP revisions is to show
compliance with .goals towards bringing an area into compliance
with the NAAQS. Emission statements will assist the State and
local agencies in assessing progress along this path. In
particular, emission statements will enable an agency to quantify
actual emissions on an annual basis for comparison with SIP
projections. The ability to annually quantify actual emissions
will provide an early warning to help agencies determine if
corrective actions are required to meet SIP obligations.
6.9 Rule Effectiveness
By reporting actual emissions, the emission statements can
be analyzed against existing rules and permits to gauge where
rule effectiveness studies should be conducted. EPA has issued
separate guidance on rule effectiveness determinations. 9 ’ 10
The emission statement guidance does not require sources to
submit RE adjusted emissions to the State (or appropriate local
agency) to comply with the emission statement provisions.
However, EPA requests that States submit the appropriate RE
factor at the SCC pollutant level so that the AIRS database can
accurately adjust the sources’ emission estimates to reflect RE.
- The AIRS database will store both RE-corrected and non RE-
corrected emissions. The AIRS system will be modified to
maintain RE information to develop consistency with SIP emission
inventory submittals in which emissions data are adjusted for
rule effectiveness.
- As stated previously, EPA is making changes in the
application of RE and in the input of RE data into AIRS that
could affect emission statement reporting. Any changes in RE
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that apply to emission statements will be addressed in a later
guidance.
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7.0 FU uz E OP EMISSION STATEMENT REPORTING
The long-term plan for industry reporting requirements is to
merge requirements into a single annual submittal for permits,
compliance, annual APS data, emission statements, a d any other
applicable requirements.
The reconunended emission statement data elements are
consistent, where practical, with other reporting requirements.
This consistency will assist both the EPA and the States with
consolidating data reporting and will also assist in quality
assurance and consistency of data.
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8.0 REFERENCES
1. U.S. Environmental Protection Agency. 1985. Compilation of
Air Pollutant Emission Factors, Volume I: Stationary Point
and Area Sources. Supplements A through D. No AP-42,
Research Triangle Park, NC. 888 pp.
2. Clean Air Act Amendments of 1990, Conference Report to
Accompany S. 1630. 101st Congress, Second Sessign, House of
- Representatives Report 101—952. October 26, 1990.
3. Ibid.
4. Ibid.
5. Ibid.
6. U.S. Environmental Protection Agency. 1991. Office of
Administration and Resources Management. Locational Data
Pol-±cy Implementation Guidance. February, 1992.
Publication number 220-B—92-008.
7. U.S. Environmental Protection Agency. National Air Data
Branch. AIRS User’s Guide Volume IX: Al’S Data Dictionary.
January 1992.
8. U.S. Environmental Protection Agency. 1991. Public
Information Document: Enhanced Monitoring and Compliance
Certification. Air docket number A-91—52. August, 1991.
9. U.S. Environmental Protection Agency, Ozone and Carbon
Monoxide Programs Branch, Office of Air Quality Planning and
Standards. 1989. Procedures for Estimating and Applying
Rule Effectiveness in Post-1987 Base Year Emission
Inventories for Ozone and Carbon Monoxide State
Implementation Plans. June, 1989. (update anticipated in
May of 1992)
10. U.S. Environmental Protection Agency. 1988. Implementation
of Rule Effectiveness Studies. Memorandum from John Seitz,
Director, Stationary Source Compliance Division, Office of
Air Quality Planning and Standards, to Regional Air Division
Directors, Office of Air Quality Planning and Standards.
March 31, 1988.
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APPENDIX A
Locating Sources
While locating traditional sources for inclusion in the
emission statement process will not be difficult due to previous
emission information requirements, finding the nontraditional
sources presents more of a challenge.
The firm of Dun and Bradstreet (D&B) maintains a database on
businesses in the United States. The database can be accessed by
modem through the EPA Facility and Company Tracking System
(PACTS) system maintained by OIRM. The D&B data in the FACTS
system is updated annually in June., Customized reports of the
D&B data can be created based upon numerous variables including
business size, SIC code, and location. States interested in
accessing the FACTS database should call the FACTS help line at
(800) 424—9067.
Other sources that may prove valuable for locating sources
include: State permit program and enforcement files, local
yellow pages, and business and trade listings.
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APPENDIX B
• Example Certification of Data Accuracy
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SAMPLE C!RTTUCAflOR OP DATA ACCURACY
The data presented herein represents the best available information and is true and accurate to the best of my knowledge.
Print
Full Name
Signature
Print Full Title
Date or Signature
( ) ___
Telephone Number
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APPENDIX C
Rule Effectiveness Method Codes
DATA ELEMENT NAME: RULE EFFECTIVENESS PERCENT METHOD CODE
DESCRIPTION A ONE-CHARACTER CODE USED PO IDENTIFY THE
METHOD USED TO DETERMINE RULE EFFECTIVENESS.
FORMAT .. . ...... : ALPHANUMERIC
LENGTH ........ . : 1.0
VALID VALUES ... :
C - DIRECT CALCULATION OF EMISSIONS BY SOLVENT USE, ALL
- SOLVENT EMITTED IN TI PERIOD.
D - DEFAULT VALUE (80%)
E - SOURCE IN COMPLIANCE DUE TO IRREVERSIBLE PROCESS THAT
ELIMINATES SOLVENT USE.
L - LOCAL CATEGORY SPECIFIC RULE EFFECTIVENESS FACTOR - NOT
EPA REGULATED.
M - CONTINUOUS EMISSIONS MONITORS
N - ‘SOURCE NOT SUBJECT TO REGULATIONS
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APPENDIX D
Estimating Emissions
Annual Emissions
The basic methodologies for computing estimated annual
emissions are contained in the EPA document, . rocedures for,the
Preparation of Emissions Inventories for Carbon Monoxide and
Precursors of Ozone, Volume I: General Guidance for Stationary
Sources (Procedures Document).’ These methodologies are
discussed in this guidance document; however, this discussion is
not intended to supersede information in the Procedures Document
mentioned above. For a complete description of emission
‘Jhcuiations the reader should refer to the Procedures Document.
For emission statement reporting, all annual emissions should be
reported as a tons per year value. When estimating annual VOC
emissions, methane, ethane, and chloroflourocarbons are to be
excluded., from the estimate because these compounds are considered
to’ be photochemically non-reactive (see the definition of
volatile organic compounds in the Definitions section of this
document).
Point source emiesion estimates can be calculated through
the use of source test data, material balances, and emission
factors. States must be available to assist sources,
particularly nontraditional sources, with the calculation of
their emission estimates.
The estimation of emissions through source test data
involves the use of test data obtained by the State or local
agency or provided by the source. The use of source test data
reduces the number of assumptions regarding the applicability of
generalized emission factors, control device efficiencies,
D-1
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equipment variations, or fuel characteristics. Most source test
reports summarize emissions for each pollutant by expressing diem
in terms of a mass loading rate, an emission factor or a flue gas
concentration. Emissions estimated through source test data
should be adjusted to account for typical operating conditions,
average control equipment downtime, effects of start-up, and
other factors that affect emission rates over the year.
Emission calculations -from emIssion factor or -mass ‘loading
rate data are rather straightforward. For example, if the source
test determined that the average VOC emission rate for the
calendar year was 12 lbs/hour, emissions could be determined in
the following manner (emissions rate X operating data).
12 lbs/hour X 16 hrs/day = 192 lbs/day
192 lbs/day X 350 days/year = 67,200 lbs/year, or
33.6 tons per year of VOC -
The emission estimate should be adjusted to include emissions
produced above the 12 lbs/hour normal operating rate such as when
the control equipment malfunctions or an upset occurs. The-
estimate should also reflect plant downtime and fugitive
emissions.
Emission calculations using test results expressed in terms
of VOC concentrations can be more complex. The Procedures
Document provi es a detailed example of such an emission
calculation.
Continuous emission monitoring (CEM) can provide a more
accurate representation of emissions than a single source test
such as was used in the example above. CEM also provides
emission measurement data when control equipment malfunctions or
is not operating. A further move away from using annual stack
tests to the use of continuous monitoring data for compliance
D-2 -
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purposes was addressed in the CAAA in the requirement for an
Enhanced Monitoring and Compliance Certification rule that
applies to major stationary sources. It is recommended that for
sources for which continuous monitoring data is available, it
should be used to estimate emissions for emission statements
because of improved accuracy in emissions measurements.
Use of a material balance involves the examination of a
process to determine if the emissions can be estimat d solely on
knowledge of specific operating parameters and material
compositions. Although the material balance is a valuable tool
in estimating emissions from many sources, its use requires that
a measure of the material being “balanced” be known at each point
throughout the process. If such knowledge is not available, and
is therefore asfl umed serious errors may result. The simplest
material balance method is to assume that all solvent consumed by
a source process will be evaporated during that process. In this
instance, in order to estimate emissions, the only information
necessary is the total amount of solvent utilized during the
appropriate time interval. Not all material balances are so
easily computed. The Procedures Document provides several
additional examples of more complicated material balance
computations. In addition, material balances cannot be applied
in some evaporation processes because the amount of material lost
is too small to be determined accurately by standard measurement—
procedures. In these cases, emission factors will have to be
applied.
Emission factors are one of the most useful tools available
for estimating emissions. An emission factor is an estimate of
the quantity of pollutant released to the atmosphere as a result
of some activity. As a rule, the most reliable emission factors
are those based on numerous and representative source tests or on
accurate material balances. In the event that emission factors
are utilized in the calculation of emissions, a source must use
D-3
-------
emission factors that are approved by EPA or the State.
Otherwise, the source must petition the State for approval of
their emission factors. The publication, Compilation of Air
Pollutant Emission Factors, Volume 1: Stationary Point and Area
Sources, no. AP-42 2 , contains the preferred emission factors to
use in estimating emissions. Another EPA document, AIRS Facility
Subsystem, Source Classification Codes and Emission Factor
Listing for Criteria Air Pollutants provides emission factors for
all SCCs. Although many of the emission factors contained in
this document are derive4 directly from AP-42, these factors do
not supersede those listed in AP-42. However, this publication
does contain some supplemental emission factors that AP-42
doesn’t list. If the emission factor accounts for control
efficiency, both a controlled and uncontrolled emission factor
will be listed. Both of these documents can be accessed through
EPA’s CHIEF bulletin board. This system serves, as a
clearinghouse for the most recent information concerning emission
ih(F ntories and emission factors. Public access requires an EPA-
approved registration, a computer, acommunications software
package, anda modem. For information on CHIEF, call the CHIEF
INFO information line at (919) 541-5285. -
In the simplest of cases, a source’s emisiions can be
calculated by multiplying the appropriate emission factor by the
activity data (i.e., process rate). However, when empirical
formulas are available, more detailed computations may be needed
to estimate emissions. For example, additional computa€ion is
required when emissions are affected by temperature, (e.g.
organic liquid storage tanks and loading of rail tank cars, tank
trucks, and marine vessels). The Procedures Document provides a.
detailed example of emissions calculation for external floating
roof tanks. In addition, the Procedures Document provides an in-
depth discussion of the effect of seasonal temperature changes
upon emissions.
D-4
-------
I
All emissions, both from significant and minor processes
within the plant, need to be a part of the emission estimate. In
addition to estimating such emissions from distin,ct process vents
in a facility, fugitive emissions should also be included in the
estimate. Fugitive emissions are emissions that are released to
the air through a means other than stacks, vents, ducts, pipes,
or any other confined air stream. Examples of fugitive emissions
include uncontained releases from wastewater treatment, tank and
drum cleaning, miscellaneous solvent losses, and leaking valves.
D- 5
-------
Tv ical Ozone Season Day Emissions -
The basic methodologies for computing typical ozone season
day emissions are also contained in the Procedure Document.
Typical ozone season day emissions should be calculated for the 3
month contiguous period identified in the 1990 base year ozone
SIP inventory. For emission statement reporting, all typical
ozone season day emissions should be reported as a pounds per day
value. When VOC emission estimates are determined, methane,
ethane and chlorof].ourocarbons are not included in the estimate
because these compounds are considered to be photochemically
nonreactive (see the definition of volatile organic compounds in
the Definitions section of this document).
In general, the emission estimation methodologies are
analogous to the procedures for estimating annual emissions. The
major difference relates to the operating and process rate data.
Where the process rate used for calculating estimated annual
emissions is an annual rate, the process rate for typical ozone
season day emissions is a daily rate averaged over the
appropriate peak ozone season.
It is fairly straightforward and accurate for sources to
compute their typical ozone season day emissions based upon their
peak ozone season daily process rate, The peak ozone season
daily process rate is a recommended emission statement data
element.
To calculate the typical ozone season day emissions using
the peak ozone season daily process rate, the process rate is
multiplied by an EPA or State approved emission factor. If, for
example, a dry cleaning facility cleans 115 pounds of clothing
per day during the peak ozone season, the typical ozone season
day emissions are calculated by multiplying the process rate of
D-6
-------
115 lbs/day by the correct emission factor. In this example, an
emission factor of 550 lbs of VOC emissions per ton of clothes
cleaned is used, and a control efficiency of 70% is applied.
This is an uncontrolled emission factor, and theefficiency of
the source’s control equipment should be factored in (multiply by
(1-control efficiency). The typical ozone sea’sonday emissions
are calculated as follows (emission factor X typical ozone season
daily process rate).
115 lbs/day of clothes cleaned
115 + 2000 = .0575 tons/day of clothes cleaned
.0575 tons/day X 550 lbs of VOC/ton of clothes cleaned =
31.625 pounds/day X (1-.70) = 9.49 pounds of VOC emissions
during the peak ozone season. -
As with the annual emissioñ ’ significant and minor process
and fugitive emissions should be included in the estimate.
Typical ozone season day emissions must represent an average
daily estimate during the peak ozone season. In order for
sources to compute their daily process rate and emissions during
the peak ozone season, States must tell the sources what the peak
ozone season is.
- Most ozone nonattainment areas will use the 3 month period
from June through August to calculate peak ozone season daily
activiti rates. However, if the peak ozone season is atypical,
the appropriate 3 month period may have been determined. States
should instruct sources to use the same peak ozone season period
in emission statements that was used in the 1990 base year ozone
SIP emission inventories for the associated nonattainment area.
D-7
-------
1 • U.S. Environmental Protection Agency. 1991. Procedures for
the Preparation of Emission Inventories for Carbon Monoxide
and Precursors of Ozone, Volume I: General Guidance for
Stationary Sources. May, 1991. Publication Number EPA-
450/4—91—016.
2. U.S. Environmental Protection Agency. 1985. Compilation of
Air Pollutant Emission Factors, Volume I: Stationary Point
and Area Sources. Supplements A through D. No AP-42,
Research Triangle Park, NC. 888 pp.
D-8
-------
APPENDIX E
EXCERPT FROM:
AIRS Facility Subsystem Source Classification Codes
and Emission Factor Listing
for Criteria Air Pollutants
A revised AIRS Facility Subsystem Source Classification
Code Document will be published in 1992.
E-1
-------
AIRS Facility Subsystem
Source Classification Codes
and Emission Factor Listing
for CrIteria Air Pollutants
EPA Document Number: EPA 450/4-90-003
Prepared by the
MONITORiNG & REPORTS BRANCH and the
NATIONAL AIR DATA BRANCH
Technical Support Division
Office of Air Quality Planning & Standards
U.S. ENVIRONMENTAL PROTECTION AGENCY
Research Triangle Park, North Carolina 27711
MARCH 1990
E-2
-------
How To Use This Document:
3- .00302 Cliargi 0’ 8 0.02 03 2.50 . Tons Coal Charged
1. 3.30 0 3 0 XX)& 0.20 XXX sofCoalChntged
SCG Process Name Lbs6U I LbsIUniI b t Lb I LbsltJ,I Lbsfljnlt bslUnlt IWIs
is Name Lb&Lhu LbsIUnII L iU I Lb nil LbsltJnIl Lb .IUnft bs4jnll Units
aces. Name Lb.IUIIII I.baItinii Lb Lb .IU I IbaRinil LbsIUnht i I Units
is Name LbsIUnII LbsIUnil Lb nit I LbsiUnht LbslUnit L I Units
C Pr is Name Ib.IUnlt LbsIUniI Lb II Lbs4Jnht LbsltJnil \LbsIUnlt Lb I Units
as Name Lba$JnII LbsIIJn,I Lbsi%J LbsIUnlt Lbsfljnit jsIUnil Lb nit Units
SC Pr sNam. Lbslunft Lbs#tJml LbsiUnII LbsIUnIt LbaIUnii ti IUnlt 1 1 UnIts
SC a Name Ib a lUnit bss ’Unil LbsAJnIt LbsRJnhI LbsIUniI Lb Unit Lb JIJn Units
meane Ihere Is no e Isslon lacier
Unique SCC umber 4-Di it SIC code lorlflspollutanl•IhIsS YET
Source Category Prncess ‘
Industry/Source c ategor
See Uote on Page 231
PART PM1O SOx NOx VOC Co LEAD
SCC Process Name LbslUnit LbslUnit Lbs/Unit Lbs/Unit Lbs/Unit Lbs/Unit Lbs/Unit Units Notes
(Aiium Hydroxid i ini jjjj
By-Product Coke an Wri v.8\Lso 002 0.02 .- Tons olAhi na duced
ng-3 c)
Li
( J
2244
None
Notes
holes
Notes
Notes
Notes
Notes
Notes
For Use In
Later Editions
XXX n,e.na that EPA WILL NOT develop
an emisiIo tactor because of alt. variability
Emission Factors
-------
SCC Process
Name
PART
Lbs/Unit
PM1O
Lbs/Unit
SOx
Lbs/Unit
NOx
Lbs/Unit
VOC
Lbs/Unit
Co
Lbs/Unit
LEAD - UNITS NOTES
Lbs/Unit
EXTERNAL COMBUSTION BOILERS
EXTERNAL COMBUSTION BOILERS - ELECTRIC GENERATION - SIC 4911(a)
Anthracite Coal - 4911
1-01-001-01 -. Pulverized Coal 10.0 A 2.3 A 39.0 S 18.0 0.07 0.6 0.0133 Tons Burned
• 1-01-001-02 - Traveling Grate 9.1 4.8 39.0 S 10.0 0.07 0.6 0.0133 Tons Burned
(Overfeed) Stoker -
. .B!tuminous Coal-4911
1-01-002-01 Pulverized Coal: Wet 7.0 A.. 2.6 A 39.0 S 34.0 0.07 0.6 0.0133 Tons Burned
Bottom
1-01-002-02 - Pulverized Coat: Dry 10.0 A 2.3 A 39.0 S 21.0 0.07 0.6 0.0133 Tons Burned
Bottom
1-01-002-03 - Cyclone Furnace 2.0 A 0.26 A 39.0 S 37.0 0.07 0.6 0.0133 Tons Burned
1-01-002-04 - Spreader Stoker 60.0 12.0 39.0 $ 14.0 0.07 5.0 0.0133 Tons Burned
. 1-01-002-05 - Traveling Grate 16.0 6.0 39.0 S 7.5 0.07 6.0 0.0133 Ions Burned
(Overfeed) Stoker
1-01-002-12 - Pulverized Coal: Dry 10.0 A 23 A 39.0 S 15.0 0.07 0.6 --- Tons Burned
Bottom (Tangential)
1-01-002-17 - Atmospheric 14.0 13.0 0.07 --- --- Tons Burned
Fluldized Bed
Ccatust ion
Subbituminotis Coal - 4911
1-01-002-21 - Pulverized Coal: Wet 7.0 A 2.6 A 35.0 S 34.0 0.07 0.6 0.0133 Tons Burned
Bottom
1-01-002-22 - Pulverized Coal: Dry 10.0 A 2.3 A 35.0 S 21.0 0.07 0.6 0.0133 Tons Burned
Bottom
1-01-002-23 - Cyclone Furnace 2.0 A 0.26 A 35.0 S 37.0 0.07 0.6 0.0133 TOnS Burned
1-01-002-24 - Spreader Stoker 60.0 12.0 35.0 S 14.0 0.07 5.0 0.0133 Tons Burned
1-01-002-25 - Trave Ing Grate 16.0 6.0 35.0 S 7.5 0.07 6.0 0.0133 Tons Burned
(Overfeed) Stoker
1-01-002-26 - Pulverized Coal: Dry 10.0 A 2.3 A 35.0 S 15.0 0.07 0.6 Tons Burned
Bottom (Tangential)
-------
APPENDIX P
Example Emission Statement Status Report
F-i
-------
SAMPLE FORMAT FOR
EMISSION STATEMENT STATUS REPORT
(Page 1 of 2)
Total Number of Sources Required
to Submit Emission Statements:
Total Number of Sources that:
Have submitted Emission Statements
Have not submitted Emission Statements
I
I
I
I
I.
Total Actual VOC Emissions
(Sum of Emissions from All Sources who Submitted Emission Statements)
Non RE-Corrected RE-Corrected
Annual Emissions: Annual Emissions:
I I
I — I
I I
I I
_______________ Tons/year
Typical Ozone Season Day Emissions:
_______________ Pounds/day
I I
Date: I
J State: I
Year of Emissions: I I
Tons/year
Typical Ozone Season Day Emisslpns:
_________________ Pounds/day
Tons/year
Typical Ozone Season Day Emissions:
I I Pounds/day
Total Actual NOx Emissions
Emission Statements)
(Sum of Emissions from All Sources who Submitted
Non RE-Corrected
RE-Corrected
Annual Emissions:
Annual Emissions:
I
I Tons/year
Typical Ozone Season Day Emissions:
I Pounds/day
I
F-2
-------
SAMPLE FORMAT FOR
EMISSION STATEMENT STATUS REPORT
(Page 2 of 2)
Sources emitting 500 ipy of VOC that have failed
to submit Emission Statements: ‘
Plant Name
..
County
Code
AIRS ID
EPA ID
i1 ’
Sources emitting 2500 tpy of NOx that have failed
to submit Emission Statements:
Plant Name
County
AIRS ID
EPA ID
Code
F-3
-------
APPENDIX G
Emission Statement Reporting Package for Traditional Sources
Appendix G is composed of 3 parts: an explanatory letter,
an example APP644 report, and example instructIons to complete
the report. These 3 elements complete the package of information
- necessary for States to supply to traditional sources for
emission statement reporting.
G-1
-------
APPENDIX G
Part 1
Example State Letter to Traditional Sources
G-2
-------
Date
Air Emissions Official
Gasoline Distributors, Inc.
101 Refinery Blvd.
City; State 99999
Dear Air Emissions Official:
Under the 1990 Clean Air Act Amendments (CAAA), States are
required to revise their State Implementation Plans to include
the requirement that certain firms submit annual stationary
source emission statements to the State in which they operate.
Emission statements will provide the State wi I?an estimate of a
source’s emissions, and are required from all sources in ozone
nonattainment areas emitting (insert State cutoff, if applicable]
nitrogen oxides (NO ) or volatile organic compounds (VOC). This
requirement also applies to sources in attainment areas within
ozone transport regions which emit or have the potential to emit
50 tons per year or more of VOC or 100 tpy or more of NON.
- Based upon (cite State statutes or regulations], your firm
is required to submit an emission statement. The .first emission
statement from your firm must be submitted to (insert name of
appropriate State or local agency] by (April 15 or whatever date
is required by the State]. The emission estimates must represent
the actual -annual emissions of NO and VOC for calendar year
1992. The emission estimate must include an estimate of
emissions from normal operations as well as’any emissions that
may have resulted from malfunctions.
Emissions data fQr your firm ar already on file with the
EPA. Therefore, an update of your firm’s emissions data as
G-3
-------
maintained in the Environmental Protection Agency’s Aerometric
Information Retrieval System (AIRS) database is sufficient. The
current AIRS emissions data (AFP644 report) for your firm is
attached for your review. Updates should be noted directly on
the form and the form must then be returned to th (insert name
of appropriate State or local agency]. Detailed instructions
regarding the update of your AFP644 report are also provided.
A certification of data accuracy must be included with your
emissions corrections to successfully comply with the emission
statement requirement. The certification of d&ta accuracy must
state that all information being submitted is complete, true, and
accurate to the best knowledge of the certifying individual. The
certifying individual is defined to be an of.ficial of the company
who will take legal responsibility for the emission statement’s
accuracy. The certifying individual’s signature on the
certification of data accuracy is essential for the completeness
of the emission statement. No emission statement will be
accepted without a signed statement.
• Failure to comply with the emission statement requirement
may result in a civil action, a civil penalty, or both. State
sanctions for noncompliance include (insert sanctions].
-. Questions about the new CAAA emission statement requirement
and emission reporting should be directed t,.o (the appropriate
contact at the State]. This contact can be reached at: (insert
phone number].
Sincerely,
Jane Smith
Director of Air Quality
G-4
-------
APPENDIX G
Part 2
Example AFP644 Report
The example facility (plant) represented in this form is
composed of 2 stacks, 3 points, and 5 segments. Of the three
points, 2 are stacks and 1 is a tank. The first point is a stack
on a boiler that operates on distillate oil (segment 1) and
natural gas (segment 2). The second point has no stack and
includes fixed roof tanks that have breathing loss emissions
(segment 1) and working loss emissions (segment 2). The third
point is the second stack. It emits pollutants from the spray
painting of widgets (segment 1).
G-5
-------
LAST PLANT UPDATE : 92/01/27
REGIONAL PLANNING
LOCAL CONTROL REGN:
INSPECTOR : ERIC JOHNSON
AMBIENT MONITORING: N SOURCE MONITORING: Y
)thtbI%l aDrnltSS:
NN1S : SAMPLE PLANT
ADDRESS : 101 MAIN STREET
çx ,ST4iTE: RALEIGH.NC 27622
NEDS : 9999
EPA ID NUMBER : Nç0000555888 DUNN £ BRADSTREET : DBXX81S89 CDS : 9 9999
EMISSIONS CONTACT : JOHN SNITH4(9l9)541-5582
LAflL’UDZ : 36:14:12 I
080:59:20
PLANT COISIENT:
NO.
ti n s ZONE : 17
HORIZONTAL : 501.0 504
VERTICAL : 4010.0 SCM
NUMBER OF EMPLOYEES : 125
001 E THIS IS A TEST COOIENr.
PLANT LEVEL COIQ4ENTS ARE FOR THE PLANT AS A WHOLE.
DATE: 01/29/92
APS PLANT EMISSIONS INVENTORY
SAMPLE OP APE APP644 REPORT
1 CM:
PAGE:
AFP644
1
PLANT:
9999 -
SAMPLE PLANT
YEAR OF EMISSIONS : 1990
STATE:
NC/ Il CITY:
55000 -
RALEIGH
SIP INVENTORY INDICATOR : 03 -
CARBON
MONOXIDE AND
OZONE SIP
INVENT
COUNTY: 183 -
WAKE CO MSAi
-
NUMBER OF STACKS: 2 NUMBER
OF
POINTS:
3 NU1 ER OF
SEGMENTS:
S
btMTNJiNS: SAMPLE PLANT
ADDRESS : 101 MAIN STREET
CXTY,t M’ : RAZ.EIGE.NC 27622
AOCR : 166
STANDARS pIOUSTRtAX. CLA5flFtCfietCN :
371E - NOTOR VEHICLE PARTS SACCESSORISS
0
0%
USER PlANT ID
PRINCIPAL PRODUCT : AUTO PARTS
EMERGENCY CONTROL PLAN : 2 -
STATE DATA ELEMENT I
STATE DATA ELDePF 9
PROPERTY AREA (ACRES)
ECAP SUDIXTED
10.0
PLANT POLWPANT:’
POLLUTANT ESTIAATED UNITS ALLOWABLE UNITS POt’. UNCTRL UNITS POP. CNTRL UNITS ACTUAL UCNTRL UNITS
NO2 28.14000 TY 40.00000 TY 350.00000 11 48.00000 TY
VOC 205.5638 TV 223.0000 TY 20 50.0000 TV 280.0000 TV
POLLUTANT CO DAILY UNITS OZONE DAILY UNITS ADJUSTED UNITS
N02 220.0000 PD 260.0000 PD
VOC 1650.0000 PD 1725.000 PD
-------
PLAN?: 9999 - SA)QLE PLAN?
STATE: NC137 CITY: 55000 - RALEIGH
COUNTY: 183 - WAKE CO NSA: -
STACK HEIGHT (Pt) ; 50
STACK DIAMETER (17) : 2.00
PLUME HEIGHT (PT)
11PM HORIZONTAL : 0.00 1CM
(IDI VERTICAL 0.00 1CM
EXIT GAS TEMPERATURE (F)
GAS FLOW RATE (ACI 14)
EXIT GAS VELOCITY (PT/SEC)
LATITUDE : 36:14:12
LONGITUDE : 080:59:20
EMISSION RECORDER : N
STACK LINING : I - I 5AL
ROUGH TERRAIN IND. :
GEP STACK HEIGHT (PT) : 50
GEP BUILDING HEIGHT (PT) : 25
GEP BUILDING LENGTH (PT) : 85
GEP BUILDING WIDTH (P1) : 60
Se . . . S.
DATE: 01/29/92 ATS PLAN? EMISSIONS INVENTORY
SAIIPLE OP APE A1P644 REPORT
PQ4:
PAGE:
.fl. S..fl.aeeflS.lfl.S.... ... . — . .
AFP644
2
YEAR OF EMISSIONS : 1990
SIP INVENTORY INDICATOR : 03 - CARBON MONOXIDE AND OZONE SIP INVENT
NUMBER OP STACKS: 2 NUMBER OP POINTS: 3 NUMBER OP SE 6 IENTS: S
STACK INFORMATION: 00) - STACK FOR BOILER El
STACK HEIGHT (PT) : 100 EXIT GAS TEMPERATURE (F) :
350
EMISSION RECORDER : N
STACK DUI4L7ER (Pt) : 5.00 GAS FLOW RATE (ACFM) :
33000
STACK LINING : 2 -
REFRACTORY
PLUME HEIGHT (PT) EXIT GAS VELOCITY (FT/SCC)
111 )4 HORIZONTAL : 0.00 KM . . LATITUDE : 36:14:13
25.0
ROUGH. TERRAIN INS. N
GEP STACK HEIGHT (PT)
: 94
111)4 VERTICAL : 0.00 1CM LONGITUDE : OBO:S9 I9
‘
GEP BUILDING HEIGHT (PT)
GET BUILDING LENGTH (PT)
: 25
: 85
STACK TYPE CODE: V - A STACK WITH AN UNOBSTRUCTED OPENING DISCHARGING IN A
VEST!
GET BUILDING WIDTH (PT)
: 60
POLLUTANT ESTINATED UNITS MEASURED UNITS METHOD
N02 28.14000 TY -
VOC 845.6000 PT -
POLLuTANT CO DAILY UNITS OZONE DAILY UNITS ADJUSTED UNITS
N02 220.0000 PD 260.0000 PD
VOC 3.000000 PD 4.000000 PD
STACK INFORMATION: 002 - SPRAY BOOTH VENT
100
9500
50.0
STACK TYPE CODE: H - A STACK DISCHARGING IN A HORIZONTAL OR NEARLY HORIZONTAL DI
POLLUTANT ESTIMATED UNITS MEASURED UNITS METHOD -
VOC 205.0000 TV -
POLWVANT CO DAILY UNITS OZONE DAILY UNITS ADJUSTED UNITS
VOC 1650.000 PD 1725.000 PD
-------
PLANT; 9999 - SAMPLE PLANT
STATE: NC/37 CITY: 55000 - RALEIGH
COUNTY: 153 - WAKE CO NSA: -
P01 1 11 INFORMATION: 001 E STACK I ’S 001
YEAR OF EMISSIONS : 1990
SIP INVENTORY INDICATOR : 03 - CARBON MONOXIDE AND OZONE SIP INVENT
NUMBER OF STACKS: 2 NUMBER OF POINTS: 3 NUMBER OF 5EGIENTS: S
EMISSIONS P0 1 111 DESCRIPTION:
USER POINT ID
CONFIDENTIAL INDICATOR : N
1pg j’gi: 33%
j4AR.44A : 27%
J(flf’A(14: 15%
EBP’410V: 25%
BURNER TYPE MAKE : KAUCK MPG
MODEL : 4 - AIR ATOMIZER
INSTALLATION DATE : 88/02/IS
POLUITANT ESTIMATED UNITS
N02 25.14000 TV
VoC 845.6000 PT
STATE DATA ELEMENT 2:
3:
4:
5:
- BIWFERFLY
4 - OTHER
METHOD
POINT SEQI U 1 1’ INFORMATION: 001 E/01 (STACK 001) - 52 OIL FOR BOILER 51
CONFIDENTIAL INDICATOR: N
P4505 ,(TR)
SDE6 : SOUP a
SOURCE CLASSIFICATION CODE: iozoosor - INDUSTRIAL BOILER DISTILLATE OIL
- Grades 1 and 2 0st
1400 1000 Gallons Burned
0.715
S C - CALCUL$TEO
6 C - CALCULATED
HEAT cONTENT: 140.00 PO4BflJ - 1000 Ga lLons Burned
ASH/SULFUR SOURCE: SUPPLIER:
SOLVENT DATA: CONTROL EQUIPMENT:
PURCHASED (GAL) : 0 COST 14000.00
REPROCESSED (GAL): 0 INSTALLATION DATE: 88/05/20
0.0000 PSIA
MAXIMUM OPERATION RATE PER HOUR:
PEAK CO SEASON DAILY PROCESS RATE
pnz 9Z91!t *MIO$ V W PROCESS RATE:
FUEL DATA: SULFUR: 0.300% ASH: 0.00%
ASH/SULFUR ORIGIN;
TANK DATA:
VAPOR PRESSURE : 0.0000 PSIA
VAPOR NOL. UT. : 0 LB/LB MOLE
PEAK OZONE SEASON VAPOR PRESSURE
DATE: 01/29/92 A l ’S PLANT EHISSIONS I1IVEIFFORY
SAMPLE OF A l ’S A7P644 REPORT
PQ4:
PAGE
AFP644
3
CONTROL REGULATION : 990/1990/20000 SPACE NEAT : 25.0%
DESIGN CAPACITY : 100 MILLION flU/HOUR NEAT INPUT
OSEAVINC SCNEPUt4:
ROUPt tEE Dfl: 16 OPERATION START TIME: 0600
04VS P5R WEEK: S OPERATION END TIME : 2200
HOURS PER YEAR: 4000
DRAfT TYPE : 1 - FORCED
DRAFT CONTROL TYPE : 3
DRAIT CONTROL WCATION
STATE DEF’D UNITS MEASURED UNITS
28.14000 TV -
845.6000 PT -
POLUfl#JR
1 (02
VOC
SIP YEAR YEAR
CO DAILY UNITS OZONE DAILY UNITS ADJUSTED UNITS LIMIT UNITS LIMIT DESCRIPTION RULE REG NOD
220.0000 PD 260.0000 PD
3.000000 PD 4.000000 PD —
-------
DATE: 01/29/92 AZ ’S PLANT EMISSIONS INVENTORY PQ4: A7P644
SAMPLE OF US UP644 REPORT PAGE: 4
PLAN?: 9999 - SAMPLE PLAN? YEAR OF EMISSIONS : 1990
STATE: NC/37 CITY; $5000 - RALEIGH SIP INVENTORY INDICATOR : 03 - CARBON MONOXIDE AND OZONE SIP INVENT
COUNTY: 183 - WAKE CO NSA: - NUMBER OF STACKS: 2 NUMBER 0? POINTS: 3 IUAIBER OP SEQ4ENTS: 5
POINT SEONENT INFORMATION: 001 £101 (STACK 001) - 12 OIL FOR BOILER I l
1102 RMISSXON / VNITS / METHOD ENI6 ION FACTOR / ORIGIN / SOURCE
ESTIMATED : 14.00000 TV 8 - AZ’S NATIONAL EMISSION FACTOR (COMPUTER-C 20.0
OZONE, PA LK: 120.0000 90 8 - AZ’S NATIONAL EMISSION FACTOR (COMPUTER-C
1ITROL EQUZPM NT:
PRD4ARY : 065 - CATALYTIC REDUCTION EFFICIENCY: 90.000% ADJUSTED EFFICIENCY: 0.000%
SECONDARY: 024 - NOOIF. FURNACEFBURIIER METHOD: 4 - ENGINEERING ESTIMATE (GUESS)
RULE EFFECTIVENESS: 80% METHOD : D - DEFAULT VALUE (80%) AN METHOD: -
SIP RULE iN PlACE : V YEAH REGLJLATEIJ: 88 YEAR LANT I4ODil’IED : SEASONAL ADJUSTHENT FACTOR:
TRACE £LD4ENT : 0.0000000% METHOD: - SESO:
VOC RMIS ICt1S / QIITS I ( O0 odS toN F CTOK / ORIGIN / SOURCE
I1b0000 TV B - AZ’S NATIONAL EMISSION FACTOR (CONPUTERC 0.2
OZONE ‘DAILY: l.200000 ED 8 - US NATIONAL EMISSION FACTOR (COMPUTER-C
!çWL1 1C L Q IXPNENT:
019 - CATALYTIC A} ’TERSURNER EFFICIENCY: 70.000% ADJUSTED EFFICIENCY; 0.000%
SECONDARY: 000 - NO EQUIPMENT METhOD: 4 - ENGINEERING ESTIMATE (GUESS)
RULE EFFECTIVENESS: 80% METHOD : D - DEFAULT VALUE (80%) £03 METHOD: -
SIP RULE IN PLACE : V YEAR REGULATED: 88 YEAR LAST MODIFIED : SEASONAL ADJUSTMENT PACTOR:
TRACE ELEMENT : 0:0000000% METHOD: - SDE8:
POINT SEONENT INFORMATION: 001 E/O2 (STACK 001) - NATIJRAL GAS FOR BOILER Il
—a————
SOURCE CLASSIFICATION CODE: 10200602 - INDUSTRIAL BOILER - NATURAL GAS
- 10-100 IO4BtuFHr
ANNUAL. !UEL’ PROCESS RATE ; 202 Million Cubic Feet Burned CONFIDENTIAL INDICATOR: N
MAXIMUM OPERATIO 1 RATE PER HOUR: 0.100 MSDS (YR):
PEAK CO SEASON DAILY PROCESS RATE 1 C - CALCULATED SDE6 : SDE7
PEAR OZONE SEASON DAILY PROCESS RATE: 1 C - CALCULATED
FUEL DATA: SULFUR: 0.000% ASM: 0.00% HEAT CONTENT: 1030.00 104511J - ML IlLon Cubic Feet Burned
ASH/SULFUR ORIGIN: ASH/SULFUR SOURCE: SUPPLIER:
TANK DATA: SOLVENT DATA: CONTROL EQUIPMENT:
VAPOR PRESSURE : 0.0000 PSIA PURCHASED (GAL) : 0 COST ; 14000.00
VAPOR MOL. MT. : 0 LB/LB MOLE REPROCESSED (GAL): 0 INSTALLATION DATE: 88/05/20
PEAK OZONE SEASON VAPOR PRESSURE : 0.0000 PSI?.
-------
CONTROL REGULATION : 990/1990/2000
DESIGN CAPACITY : 12 THOUSAND BARRELS
OPERATING SCHEDULE:
HOURS PER DAY: 24 OPERATION START TIME: 0600
DAYS PER WEElS: 7 OPERATION END TIME : 2200
HOURS PER YEAR: 8760
DRAFT TYPE : 1 - FORCED
DRAFT CONTROL TYPE : 3 - BLIITERFLY
DRAFT CONTROL LOCATION : 4- OTHER
STATE DATA ELEMENT 2:
3:
4:
5:
a a a as
DATE: 01/29/92 AP I PLANT EMISSIONS INURNTORY PQ4: APP644
SAMPLE 0? APE AfP644 POR? PACE: S
as
PLANT: 9999 - SAI PLE PLANT YEAR OF EMISSIONS : 1990
STATE; NC/37 CITY: 55000 - RALEIGH SIP INVENTORY INDICATOR : 03 - CARBON MONOXIDE AND OZONE SIP INVENT
COUNTY: 183 - WARE CO HSA: - NUHEER OF STACKS: 2 NW4SCR OF POINTS: 3 NUMBER OF SEGMENTS: S
POINPdEGMENT INFORMATION: 001 £/02 (STACK 001) - NATURAL GAS FOR BOILER 81
poturr MT: -
N02
C )
-
0
VOC
EMt ION PACTOR / ORIGIN I SOURCE
140.0
EFFICIENCY: 90.000% ADJUSTED EFFICIENCY:
0.000%
METHOD: 4 - ENGINEERING ESTIMATE (GUESS)
ADJ METHOD: -
SEASONAL ADJUSThENT FACTOR:
SDE8:
EMIE ION ?j )ICPOR / ORIGIN / SOURCE
2.8
£MXSStOME / UNITS I METHOD
ESTIMATED : 14.14000 71 8 - AR ’S NATIONAL EMISSION FACTOR (COMPUTER-C
OZONE DAIT Y: 140.0000 PD . 8 - AFS NATIONAL EMISSION FACTOR (COMPUTER-C
CONTROL SQUIP EN!;
PRX14AR : 065 - CATALYTIC REDUCTION
SECONDARY: 024 - MOOIF. FURNACE/BURNER
RULE EFFECTIVENESS: 80 % METHOD : D - DEFAULT VALUE (80%)
SIP RULE IN PLACE : Y YEAR REGULATED: 88 YEAR LAST MODIFIED
TRACE ELEMENT ; 0.0000000% METHOD: -
EMISSI0tI5 I lIMITS / METHOD
ESTIMATED : • 2828000 TY 8 - US NATIONAL EMISSION FACTOR (COMPUTER-C
0103)5 DAILY: 2 • 800000 PD 8 - AR’S NATIONAL EMISSION FACTOR (COMPUTER-C
CONTROL EQUDIçNT:
PRXNABV : 019 - CATALYTIC AFTERBURNER EFFICIENCY: 70.000% ADJUSTED EFFICIENCY: 0.000%
SECOMpARY: 000 - NO EQUIPMENT METHOD: 4 - ENGINEERING ESTIMATE (GUESS)
RULE EFFECTIVENESS: 80 I METHOD : D - DEFAULT VALUE (80%) ADJ METHOD:
SIP RULE IN PLACE : Y YEAR REGULATED: 88 YEAR LAST MODIFIED : SEASONAL ADJUSThD1T PACLOR:
TRAtE ELEMENT : 0.0000000% METHOD: - 5US$:
POINT INFORMATION: 002 E
EMISSIONS POINT DESCRIPTION:
USER POINT ID
CONFIDENTIAL INDICATOR : N
P RCEHT TERUPU?: DEC-FED: 50%
NMI—NMC: 20%
JUN-MIS: 10%
SEP-NOT: 20%
BURNER TYPE MAKE : HAUCK IWO
MODEL : 4 - AIR AlaIIZER
INSTALLATION DATE : 88/02/1 5
SPACE HEAT 00.0% -
-------
DA lE: 01/29192
12 5
SAIl
PLAIIT EMISSIONS INVENTORY
P12 OP 125 6FP644 REPORT
P04:
PAGE:
£FP614
6
YEAR OF EMISSIONS 1990
SIP INVENTORY INDICATOR :
NW4BER OF STACKS: 2 NUMB
03 - CARBON
ER OF POINTS:
MONOXIDE RaID OZONE SIP
3 NUMBER OP SEGMENTS:
INVENT
5
. —
PLANT: 9999 - SAMPLE PLANT
STATE: MC ! 37 CITY: 55000 - RALEIGH
COUNTY: 163 - WAKE CO NSA: -
a
POINT INFORMATION: 002 5
POLUfl’AIIT £STU4ATED UNITS STATE DEFD UNITS MEASURED UNITS METHOD
VOC 282.0000 PY 282.0000 PY
SIP YEAR YEAR
POLLUTANT CO DAILY UNITS OZONE DAILY UNITS ADJUSTED UNITS LIMIT UNITS LIMIT DESCRIPTION RULE REG HOD
1 1CC .4700000 PD .5800000 PD
POINT SEGMENT IN!ORMATIOI1: 002 glOl (NO STACK)
SOURCE CLASSIFICATION COON: 4031019 - PETROLEUM PRODUCT STORAGE - FIXED ROOF TANKS (VARYING SIZES)
I - DISTILLATE FUEL 62: BREATHING LOSS (67000 DBL. TANK SIZE) FIXED ROOF
MNWIX. FUEl. PR0C6S RATS : 504 1000 Gallon. Storapa Capacity CONFIDENTIAL INDICATOR: N
NAX!I4IJ4 OPERATION RATE PER HOUR: 0.000 REDS (YB):
PEAK CO SEASON DAILY PROCESS RATE : I C - CALCULATED SDE6 : • SDE7
PEAK. O CMB SEASON DAILY PROCESS RITE: I C - CALCULATED
FUEl. DATA: SULFUR: 0.000% ASH: 0.00% NEAT CONTENT:
ASH/SULFUR ORIGIN: ASH/SULFUR SOURCE:
TANK DATA: SOLVENT DATA:
VAPOR PRESSURE : 0.0000 PSIA PURCHASED (GAL) : 0
VAPOR HOL. VP. : 130 LB/LB HOLE REPROCESSED (GAL): 0
PEAK OZONE SEASON VAPOR PRESSURE : 0.0000 PSIA
POWJrNff:
4ISSIO 8 / WIlTS / METHOD EMISSION FACIVR / ORIGIN / SOURCE
ESTIMATED : .1260000 TI 9 - USER-SUPPLIED EMISSION FACTOR (CCNP(flER- .5 LOCAL
OZONE DAILY: .5000000 PD 9 - USER-SUPPLIED EMISSION FACTOR (COMPUTER-
CONTROL EQUIPMENT:
PRIMARY 047 - VAPOR RECOVERY SYSTEM EFFICIENCY: 95.000% ADJUSTED EFFICIENCY: 0.000%
SECONDARY: 000 - NO EQUIPMENT METHOD: I - ENGINEERING ESTIMATE (GUESS)
RULE EFFECTIVENESS: I METHOD : - AD.) METHOD: -
C)
-a
a
VOC
0.00 W4BTU - 1000 G lona Storage Capacity
SUPPLIER: ACME FUEL OIL DISTRIBUTORS
CONTROL EQUIPMENT:
COST : 6500.00
INSTALLATION DATE:. 81/11/22”
-------
DATE: 01/29/92 - AVE PLAIT? EMISSIONS INVENTORY P04: Afl644
SAMPLE OF APS Afl644 REPORT PAGE: 7
a —a__en — _________n_
PLANT: 9999 - SAlUtE PLAIT? YEAR OF EMISSIONS : 1990
STATE: NC/37 CITY: 55000 - RALEIGH SIP INVENTORY INDICATOR : 03 - CARBON MONOXIDE AND OZONE SIP INVENT
COUNTY: 183 - VANE CO NSA: - NUMBER OF STACKS: 2 NUMBER OF POINTS: 3 NUMBER OF SEO4ENTS: S
• POINT•.SEQ(ENT INFORMATION: 002 £101 (NO STACK) -
SIP RULE IN PLACE : N YEAR REGULATED: YEAR LAST MODIFIED : SEASONAL ADJUSTMENT FACTOR
TRACE ELDOIT : 0.0000000% METHOD: - SDES:
POINT SEQIENT IIIPORMATION: 002 E/02 (NO STACK)
SOURCE CLASSIFICATION CODE: 40 )01021 - PETROLEUM PRODUCT STORAGE - FIXED ROOF TANKS (VARYING SIZES)
I - DISTILLATE FUEL 12:VORKING IflSS (TANK DIAMETER INDEPENDENT) F IXED ROOF
ANNUAL FUEL PRQO $U 4M’ : 1500 1000 Gallons Throughput • CONFIDENTIAL INDICATOR: N
MAXIMUM OPERATION RATE PER HOUR: 0.715 - 14505 (YR): -
PEAK CO SEASON DAILY PROCESS RATE : 4 C - CALCULATED SDE6 ; SDE7
AK OZQfl SEASQI I !‘ 4 3IQC 3$ flfl: 4 C - CALCILATED
FUEL DATA: SULPUR: 0.000% ASH: 0.00% HEAT CONTENT: 0.00 O4BTIJ - 1000 Gallons Throughput
ASH/SULFUR ORIGIN: ASH/SULFUR SOURCE: SUPPLIER:
TANK DATA: SOLVENT DATA: CONTROL EQUIPMENT:
VAPOR PRESSURE : 0.0000 PSIA PURCHASED (GAL) : 0 COST : 6500.00
VAPOR H0L. VT. : 130 LB/LB HOLE REPROCESSED (GAL): 0 INSTALLATION DATE: 87/ 11122
PEAK OZONE SEASON VAPOR PRESSURE : 0.0000 PSIA
PQ 4UtMl F:
VOC
U(tE ICflS / UNITS / METhOD 4I $IQfl PACEOR / ORIGIN / SOURCE
.0150000 TV 9 - USER-SUPPLIED EMISSION FACTOR (CONP(7TER- .02 LOCAL
08014$ DATEJ: .0800000 PC 9 - USER-SUPPLIED EMISSION FACTOR (COMPUTER-
CflQL :
047 - VAPOR RECOVERY SYSTEN aflCflNC : 95.000% ADJUSTED EFFICIENCY: 0.000%
• Cp I4p4fl: 000 - NO EQUIPMENT METHOD: 4 - ENGINEERING ESTIMATE (GUESS)
RULE EFFECTIVENESS: % METNOD : ADJ METHOD: -
SIP RULE IN PLACE : N YEAR REGULATED: YEAR LAST MODIFIED
TRACE ELEMENT : 0.0000000% METHOD: -
POINT INFORMATION: 003 E STACK I ’S 002
S .
EMISSIONS POINT DESCRIPTION:
USER POINT ID : CONTROL REGULATION : 990/1990/20000 SPACE HEAT : 00.0%
CONFIDENTIAL INDICATOR : N DESIGN CAPACITY : S TONS PER DAY
SEASONAL ADJUSTMENT FACTOR:
SDE8:
. Ce —
0
a
‘ SI
-------
DATE: 01/29/92 *18 PLAN? EMISSIONS INVENTORY
SAMPLE OF BPS BPP614 REPORT
PGI:
PAGE;
*11644
8
P2RCT1JJWP1 I DEC-PER: 22% OPERATING SCUEDUUI: I STATE DATA ELEMENT 2:
MAR-MAlt: 28% hOURS PER )AY: 16 OPERATION 1YART TIME: 0600 .‘ 3:
JTJM—AUS: 28% DAYS PER W EIc: 5 OPERATION ND TIME : 2200 4:
E -$9V: 22% JIOURS P R B: 4000 5:
BURNER TYPE HAKE : KAIJCK MPG DRAF1 TYPE : 3 - NATURAL
MODEL : 3 - STEAM LIONIZER DRAPP CONTROL TYPE : 4 - GUILLCFINE
INSTALLATION DATE : 80/02115 DRAF1 CONTROL LOCATION : 2 - EREECHING
POLW1AN? ESTIMATED UNITS STATE DEPD UNITS MEASURED UNITS METHOD
VOC 205.0000 TY 205.0000 TY -
SIP YEAR YEAR
CO DAILY UNITS OZONE DAILY UNITS ADJUSTED UNITS LIMIT UNITS LIMIT DESCRIPTION RULE BEG MOD
VOC 1650.000 PD 1725.000 PD
POINT SEG4 RT INFORMATION: 003 E/0l (STACK 002) - SPRAY PAINTING OP WIDGETS
SOURCE CLASSIFICATION CODE: 40202501 - SURFACE COATING OPERATIONS - MISCELLANEOUS METAL PARTS
— Coating Operation
A34XUkI. )‘UEI PROCE 5 RATE : 420 Tons Solvent in Coating
MAXIMUM OPERATION RATE PER HOUR; 0.165
PEAK CO SEASON DAILY PROCESS RATE ; 2
PEAK OON ’ CASO( DALLY PROCESS: RAI 2
FUEL DATA: SULFUR: 0.000% ASH; 0.00%
ASH/SULFUR ORIGIN:
I - USER INPUT
I - USER INPUT
HEAT CONTENT;
ASH/SULFUR SOURCE:
SOLVENT DATA:
PURCHASED (GAL)
REPROCESSED (GAL):
0.0000 PSIA
EMISSICIlS
ESTIMATED : 205
OWNS PAILI: 1125
LIMIT ; 1500
CONTROL EQUIPMENT:
PRIMARY : 048 - ACTIVATED CARBON ADSORPTION FICIEHCY: 50.000% ADJUSTED EFFICIENCY: 0.000%
SECONDARY: 000 - MO EQUIPMENT METHOD: 2 - TESTED EFFICIENCY. BASED ON 0111811
RULE EFFECTIVENESS: 80% METHOD : D - DEFAULT VALUE (80%) ADJ METHOD: -
SIP RULE IN PLACE Y YEAR REGULATED: 88 YEAR LAST MODIFIED
TRACE ELEMENT i 0.0000000% METHOD: -
D4ISSION FACTOR / ORIGIN / SOURCE
PLANT: 9999 - SAMPLE PLANT
STATE: NC/37 CITY: 55000 - RALEIGH
COUNrY: 183 - WAKE CO NSA:
POINT INFORMATION: 003 C STACK I ’S 002
YEAR OF EMISSIONS : 1990
SIP INVENTORY INDICATOR ; 03 - CARBON MONOXIDE BiRD 010 148 SIP INVENT
NUMBER OF STACKS: 2 NUMBER OP POItrIS: 3 NUMBER OP SE (DRTS: 5
-a
4 -4
TANK DATA:
VAPOR PRESSURE ; 0.0000 PSIA
VAPOR NOR.. WI. : 0 LB/LB MOLE
PEAK OZONE SEASON VAPOR PRESSURE
PO IWflNT;
VOC / UNITS /
T V
PD
PD
CONFIDENTIAL INDICATOR: N
MSDS (YB);
81186 : SDE7
0.00 IS4BTU - Ions Solvent in Coating
SUPPLIER:
CONTROL EQUIPS4Dfl:
0 COST . .1 : 4000.00
O INSTALLATION DATE: 88/01/10
METhOD
2 - MATERIAL BALANCE W/
2 - MATERIAL BALANCE W/
KNOWLEDGE OF PROCESS
KNOWLEDGE OF PROCESS
SEASONAL ADJUSThEMT FACtORs
SDE8:
-------
APPENDIX G
Part 3
Example Instructions for Revision of the AFP644 Report
for Emission Statement Reporting
The AFP644 report provides information on yout facility,
including emission data at the plant, point, and segment level.
The length of your facility’s report will vary depending upon the
nuxnber of points, stacks, and segments and the number of
pollutants emitted. Therefore, it is not possible to provide the
exact location of the fields. to be update . These instructions
will describe the fields that are required for emission statement
reporting and provide the exact field name in uppercase text
enclosed in quotation marks. (Zn addition, the (State or local
agency) has highlighted the fields that your faáility is required
to review].
If your facility has added new points or segments during the
last year, the new information can be provided to the State by
reques g.. the Emission Statement Initial Reporting Form for New
and Modified Sources. To request this form contact (insert
appropriate State or local contact and telephone number].
In order to comply with the (insert Stats statute or
regulation] for emission statement reporting, the following
information must be reviewed and updated, where appropriate. The
same information is required for each point and segment at the
facility. Therefore, careful attention should be paid to the
point and segment descriptors in the report to ensure that the
data are entered correctly for each point and segment. Any
changes to the information should be noted directly on the report
by striking the old information with one solid line and writing
the correct information to the right of the outdated information.
In addition, a signed and dated certification of data accuracy
must be included with the revised report.
For assistance with calculating your emission statement
data, contact. (insert State or local contact] at (telephone
number].
I. Plant Level Emission Data
1. Source Identification : The fields to be reviewed are: plant
physical location and plant mailing address. The mailing
address information is differentiated from the physical
location information by the heading “MAILING ADDRESS:”. The
physical location fields are: “PLANT NAZIE”, “ADDRESS”, and
“CITY, STATE”. The mailing address fields are: “NANE”,
“ADDRESS”, and “CITy STATE”.
G-14
-------
2. Calendar year of emissions : Correct the “YEAR OF EMISSIONS”
field to .reflect the appropriate year of the emissions dG:a.
3. SIC (Standard Industrial Classification) Code : Listed under
“STANDARD INDUSTRIAL CLASSIFICATIONS”, check that the SIC
codes present are consistent with- the type of economic
activity in which the facility is engaged. SIC codes and -
their descriptions are listed in the Standard Industrial
Classification Manual; published by the Office of Management
and Budget. Depending upon its operation, your facility may
have more than one SIC code; up to three separate codes may
be entered.
4. Latitude and Longitude : The locational fields to be
reviewed are: “LATITUDE” and “LONGITUDE”.
II. Point Level. Emission Data
1. Percentage Annual Throughput : Termed “PERCENT THROUGHPUT”,
The percent of annual throughput achieved in the seasons
specified (“DEC-F , “MAR-MAY”, “JUN-AUG”, and “SEP-NOV”).
The first season (DEO-FEB) will actually encompass 2
calendar years (e.g., DEC ‘92 - FEB ‘93). However, the
percentages should not total greater than 100%. Annual
throughput can represent the amount of fuel used, the amount
of solvent consumed, or the amount of product produced.
2. Normal Operating Schedule : The, annual average for the days
per week, hours per day, and hours per year that the
facility operates. The heading for the data is “OPER .ATIIstG
SCHEDULE:”, the field names are: “HOURS PER DAY”, “DAYS PER
WEEK”, and “HOURS PER YEAR”.
III. Segment Level Emissions Data
A source classification code (SCC) is an EPA identifier for a
—---specific segment. The SCC is provided by the State and is
displayed on the report under the field”SOURCE CLASSIFICATION
CODE”. The SCC and description are essential information for
maintaining your facility’s emission data. Each SCC defines a
segment at your facility. Be certain that the information you
are providing at the segment level is specific to the SCC listed
for that segment on the AFP644 report.
1. Annual Process Rate : This number represents the amount of
product throughput, the amount of solvent consumed, or the
amount of fuel burned.- The units for the annual process
rate depend upon the specific SCC. When updating the
“ANNUAL PROCESS RATE” field, be certain that the units
represented by the estimate are the same as noted on the
G-15
-------
report.
2. Peak Ozone Season Daily Process Rate : The average daily
process rate during the peak ozone season. The ozone season
is defined to be the period of the year during which the
conditions for the formation of ozone is most favorable.
The peak ozone season for the region in which your facility
is located is (insert appropriate peak ozone seasonl. The
peak ozone season covers a three month per iod during which
most ozone e ceedances occur, while the ozone.season-can -
extend much longer. ‘The process rate should be determined
as above, except averaged to represent a day during the peak
ozone season instead of the annual total. The correct
reporting units should be determined ,as outlined above. The
infozination should be entered in the “PEAK OZONE SEASON
DAILY PROCESS RATE” field.
3. Pollutant Specific Data : Pollutant specific data are
required for the following pollutants: volatile organic
compounds (VOC) and oxides of nitrogen (NOx) (insert
additional pollutants, if applicable]. VOC and NOx have
been determined to be significant contributors to the
formation of ozone. Therefore, data on the sources of these
pollutants are necessary to assist in State air quality
pl aj j ing. (The additional pollutants are required to
coordinate State reporting requirements. By providing data
for these pollutants, your facility will avoid duplicating
your required emission reporting efforts.] The same data
are required for each of the pollutants. The pollutant data
are provided under the heading “POLLUTANT”. The field for
NO emissions on the A1P644 report is marked “NO 2 1 ’, however,
NO emissions (which include both NO and NO 2 ) are the
emissions that need to be entered.
3A. Estimated Actual Annual Emissions : Actual emissions should
represent the actual emissions for the source for the
calendar year, including upsets, downtime, and fugitive
emissions. Emissions from significant and minor processes
within the plant must be part of the emissions estimate.
When VOC emission estimates are determined, methane, ethane
and chioroflourocarbons are not included in the estimate
because these compounds are considered to be photochemically
nonreactive. Units must be in tons of pollutant emitted per
year. The estimated actual annual emissions should be
entered in the “ESTIMATED” field for each of.the pollutants
listed, in the “EMISSIONS” column. The “UNITS” column
should be checked to make sure that it accurately denotes
tons per year (TY). Actual emissions can be derived in a
number of ways. Emissions can be estimated based upon any
of the EPA’s acceptable methods as detailed by the following
emissions method codes.
G-16
-------
Estimated Emissions Method Code : This code denotes the
method used to calculate your facility’s estimated actual
annual emissions. The correct method code should be noted
in the “ESTIMATED” field’s “METHOD” column. Valid codes are
as follows:
1 - USER CALCULATED BASED ON SOURCE TEST OR OTHER EMISSION
MEASUREMENTS.
2 - USER CALCULATED BASED ON MATERIAL BALANCE USING
ENGINEERING ENOWLEDGE OF THE PROCESS.
3 - USER CALCULATED BASED ON AP-42 EMISSION FACTOR (OR SCC
EMISSION FACTOR).
4 - USER CALCULATED BY BEST ENGINEERING JUDGEMENT
5 - USER CALCULATED BASED ON A STATE OR LOCAL AGENCY
EMISSION FACTOR.
6 - NEW CONSTRUCTION, NOT YET OPERATIONAL. EMISSIONS ARE
ZERO.
7 - SOURCE CLOSED; OPERATION CEASED. EMISSIONS ARE ZERO
8 - COMPUTER CALCULATED BASED ON STANDARD EMISSION FACTOR.
(SCC EMISSION FACTOR FILE)
9 - COMPUTER CALCULATED BASED ON OTHER APPROVED EMISSION
FACTOR.
All emissions calculated by a facility will be denoted by
codes 1 through 5. Codes 8 and 9 represent emissions that
were calculated by the EPA’s data base system.
Emission Factor : The emission factor used to compute the
estimated annual emissions. If an emission factor was used
in the comput Ion, it should be entered in the “ESTIMATED”
fieldts “EMISSION FACTOR” column. In the event that
emission factors are utilized in the calculation of
emissions, a source must use emission actors that are
approved by EPA or the State. Otherwise, the source must
petition the State for approval of their emission factors.
3B. Tv ical Ozone Season Day Emissions : These emissions must be
supplied in pounds per day and must represent actual
emissions during the peak ozone season. As mentioned under
estimated actual annual emissions, when estimating VOC
emissions, methane, ethane, and chioroflourocarbons are not
to be included in the estimation. To calculate the typical
ozone season day emissions, the throughput for a typical
ozone season day must be determined. The peak ozone season
for the region in which your facility is located is (insert
peak ozone season]. The throughput should be determined as
previously discussed. Actual emissions can be derived in a
number of ways.. Acceptable EPA methods are the same as
those listed above. Estimates must account for both
significant and minor process emissions, and fugitive
emissions should also be included in the emissions report if
applicable. The typical ozone season day emissions should
G-17
-------
be entered in the “OZONE DAILY” field’s “EMISSIONS” column.
Also, the “UNITS” column should be checked to ensure that it
correctly reflects pounds per day (PD).
Estimated Emissions Method Code : The emission method codes
are identical to the method codes presented in 3A. The
typical ozone season day emission method code should be
entered in the “OZONE DAILY” field’s “METHOD” column.
Emission Factor : The EPA or State approved emission factor
used to compute the typical ozone season day emission
estimate. If an emission factor was used in the
computation, it should be entered in the “OZONE DAILY”
field’s “EMISSION FACTOR” column.
G-1 8
-------
3C. Control Equipment Identification Code : Control equi ment is
used to limit the emission of pc:ilutants to the at t re.
Numerous types of control equipmont may be in place at a
facility. For emission statement reporting, your facility
is required to report the primary and secondary control
equipment codes. The following list details the control
equipment cpdes for different control equipment. For more
information on the correct code for the control equipment at
your facility, contact (insert appropriate State or local
contact and telephone number]. The control equipment
information should be entered under the “CONTROL EQUIPMENT:”
heading, in the “PRIMARY” and “SECONDARY” fields. Valid
codes are as follows:
000
001
-
-
NO EQUIPMENT
WET SCRUBBER HIGH EFFICIEN.
027
028
-
-
REDUC COMBUST.- PREHEAT
STEAM OR WATER INJECTION
002
-
WET SCRUBBER MED EFFICIEN.
029
-
LOW-EXCESS - AIR FIRING
003
-
WET SCRUBBER LOW EFFICIEN.
030
-
FUEL - LOW NITROGEN CONTENT
004
-
GRAVITY COLL HIGH EFFICIEN.
031
-
AIR INJECTION
005
-
GRAVITICOLL MED EFFICIEN.
032
-
AZ’240N 1A INJECTION
006
007
-
-
GRAVITY COLL LOW EFFICIEN.
CENTRIF COLL HIGF EFFICIEN.
033
034
-
-
CONTRL OF. 02 IN COMB.AIR
WELL.-LO /S0DIUM SULF SCRB
008
-
CENTRIF COLL 1 MED EFFICIEN.
035
-
MAGNESIUM OXIDE SCRUBBING
009
-
CENTRIF COLL LOW EFFICIEN.
036
-
DUAL ALKALI SCRUBBING
010
011
-
-
ELECTRO PREC HIGH EFFICIEN.
ELECTRO PREC MED EFFICIEN.
037
038
-
-
CITRATE PROCESS SCRUBBING
AZ 2 (ONIA SCRUBBING
012
-
ELECTRO PREC LOW EFFICIEN.
039
-
CATAL. OXID-FLUE GAS DESULF
013
-
GAS SCRUBBER, GENERAL
040
-
ALKALIZED ALUMINA
014
-
MIST ELIMINATOR HIGH VELOC.
041
-
DRY LIMESTONE INJECTION
015
-
MIST ELIMINATOR LOW VELOC.
042
-
WET LIMESTONE INJECTION
016
-
FABRIC FILTER HIGH TEMP.
043
-
SULF ACID PLNT-CONTACT PROC
01.7
-
FABRIC FILTER MEDIUM TEMP.
044
-
SULF ACID PLNT-DBL CNT PROC
018
019
020
-
-
-
FABRIC FILTER LOW TEMP.
CATALYTIC - AFI’ERBURNER
CAT. AF1”ERBURN - HEAT EXCH.
045
046
047
-
-
-
SULFUR PLANT
PROCESS CHANGE
VAPOR RECOVERY SYSTEM
021
-
DIRECT FLAME AFI’ERBURN
048
-
ACTIVATED CARBON ADSORPTION
022
-
D.F. A r RBURN - HEAT EXCH.
049
-
LIQUID FILTRATION SYSTEM
023
-
FLARING
050
-
PACKED-GAS ABSORBION COLUMN
024
-
MODIF FURNACE/BURNER DESIGN
051
-
TRAY-TYPE GAS ABSORB COLUMN
025
-
STAGED COMBUSTION
052
-
SPRAY TOWER
026
-
FLUE GAS RECIRCULATION
053
-
VENTURI SCRUBBER
054
-
PROCESS ENCLOSED
084
-
ACTIVATED CLAY ADSORPTION
G-19
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3C. Control Eaui mertt Identification Code : (cont.)
PROCESS ENCLOSED
IMPINGEMENT PLATE SCRUBBER
DYNAMIC SEPARATOR (DRY)
DYNAMIC SEPARATOR (WET)
MAT OR PANEL FILTER
METAL FABRIC FILTER SCREEN
PROCESS GAS RECOVERY
DUST SUPPRESS - WATER SPRAY
D • S. - CHEM STAB. /WET AGENTS
GRAVEL BED FILTER
ANNULAR RING FILTER
CATALYTIC REDUCTION
MOLECULAR SIEVE
WET LIME SLURRY SCRUBBING
ALKALINE FLY ASH SCRUBBING
SODIUM CARBONATE SCRUBBING
SODIUM-ALKALI SCRUBBING
FLUID BED DRY SCRUBBER
TUBE AND SHELL CONDENSER
REFRIGERATED CONDENSER
BAROMETRIC CONDENSER
SINGLE CYCLONE
MULTIPLE CYCLONE
WIO FLY ASH REINJECTION
078 - BAFFLE
079 - MULTIPLE CYCLONE
WI FLY ASH REINJECTION
080 - CHEMICAL OXIDATION
081 - CHEMICAL REDUCTION
082 - OZONATION
083 - CHEMICAL NEUTRALIZATION
084 - ACTIVATED CLAY ADSORPTION
085 - WET CYCLONIC SEPARA!L’OR
086 - WATER CURTAIN
087 -‘ NITROGEN BLANKET
088 - CONSERVATION VENT
089 - BOTTOM FILLING
090 - CONVERSION TO VARIABLE
VAPOR SPACE TANK
091 - CONVERSION TO FLOATING
ROOF TANK
092 - CONVERSION TO PRESSURIZED
TANK
093 - SUBMERGED FILLING
094 UNDERGROUND TANK
095 WHITE PAINT
096 - VAPOR LOCK BALANCE RECOVERY
SYSTEM
097 - INSTALLATION OF SECONDARY
SEAL FOR EXTERNAL FLOATING
ROOF TANK
098 - MOVING BED DRY SCRUBBER
099 - MISCELLANEOUS CONTROL
DEVICES
101 - HIGH EFFICIENCY PARTICULATE
AIR FILTER
3D. Control Eauioment Efficiency : The percent effectiveness of
the control device(s). It represents the actual total
control efficiency achieved by the control device(s). The
actual efficiency should reflect control equipment downtime
and maintenance degradation. ‘If the actual control
efficiency is unavailable, the design efficiency or control
efficiency limit imposed by a permit should be used. The
control equipment efficiency should be entered in the
“EFFICIENCY” field.
In addition, the capture efficiency must be taken into
account when determining control efficiency. Capture
efficiency is a measure of the volume of pollutant captured
or recovered relative to the volume of pollutant generated.
The entire emission stream may not always pass through
the control equipment. A certain percentage of emissions
may escape as fugitive emissions and are therefore not
controlled, and the calculated emissions must reflect this.
054 -
055 -
056 -
057 -
058 -
059 -
060 -
061 -
062 —
063 -
064 -
065 —
066 —
067 —
068 —
069 -
070 -
071 -
072 -
074 -
075 -
076 -
G-20
-------
APPENDIX H
Emission Statement Reporting Package for Nontraditional Sources
Appendix H is composed of 3 parts: an explanatory letter,
an example Emission Statement Initial Reporting Form, and example
instructions. These 3 elements complete the package of
information necessary for States to supply to nontraditional
sources for emission statement reporting.
H-i
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APPENDIX. H
Part 1
Example State Letter to Nontraditional Sources
H-2
-------
Date
Owner/Operator
Fresh Coat Paint, Inc.
123 Main St.
City, State 99999
Dear Owner/operator:
Under the 1990 Clean Air Act Amendments (CAAA), States are
required to revise their State Implementation Pl ans to include the
requirement that certain firms submit annual stationary source
emission statements to the State in which they operate. Emission
statements will provide the State with an estimate of a source’s
emissions, and are required from all sources in ozone nonattainment
areas emitting (insert State cutoff, if applicable) nitrogen oxides
(NOr) or voZatile organic compounds (VOC). The requirement also
‘pplies to sources in attainment areas within ozone transport
egions which emit or have the potential to emit 50 tons per year
or more of VOC or 100 tpy or more of NO 1 .
Based upon (cite State statute or regulations] your firm is
required to submit an emission statement. The first emission
statement from rour firm must be submitted to (insert name of
appropriate State or local agency] by (April 15 or whatever date is
required by the State]. The emission estimates must represent the
actual annual emissions of NO and VOC for calendar year 1992. The
emission estimate must include an estimate of emissions from normal
operations as well as any emissions that may have resulted from
malfunctions.
Emissions data for your firm are not yet on file with the EPA.
Therefore, completion of the enclosed Emission Statement Initial
Reporting Form is required. - The emission statement reporting form,
‘ n complete, will contain all of the information necessary to
LItply with the State’s emission statement requirement.
H-3
-------
Instructions regarding the information required in the Emission
Statement Initial Reporting Form are also provided.
Submission. of the Emission Statement Initial Reporting Form is
required to enter your facility’s emissions data into EPA’s
Aerometric Information Retrieval System (AIRS) database. Once your
emissiäns data are an file with the EPA, the annual emission
statement requirement will be met by updating your firm’s previous
year’s emissions data. The data will be obtained by the State from
EPA and sent annually to your firm for review and/or correction.
A certification of data accuracy must be included with your
firm’s emission statement. The certification of data accuracy must
state that all information being submitted is complete, true, and
accurate to the best knowledge of the certifying individual. The
certifying individual is defined to be an official of.the company
who will take legal responsibility for the emission statement’s
‘accuracy. The certifying individual’s signature on the
certification of data accuracy is essential for the completeness of
the emission statement. No emission statement will be accepted
without a signed statement.
Failure to comply with the emission statement requirement may
result in a civil action, a civil penalty, or both. State
sanctions for noncompliance include (insert sanctions].
Questions about the new CAAA emission statement requirement
and emiss ion reporting should be directed to (the appropriate
contact at the State]. This contact can be reached at: (insert
phone number].
Sincerely,
Jane Smith
Director of Air Quality
M-4
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APPENDIX H
Part2
Example Emission Statement Initial Reporting Form
H- 5
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Emission Statement Initial Reporting Form
for New and Modified Sources
I. Plant Level Emission Data
Facility Address (up to 30 characters)
Mailing Address (up to 30 characters)
III
2. Calendar Year of Emissions
3. SIC code(s)
11111 11111 Lull
4. Locational Coordinates
Latitude
I I I—I I I-I I I
Longitude
I I I I-I I I -I I I
1. Source Identification
Facility Name (up to 40 characters)
Above data elements all appear on AIRS update screen no. 300
-------
Emission Statement Initial Reporting Form
for New and Modified Sources
1. Percentage Annual Throughput:
(AIRS update screen no. 330)
2. Normal Operating Schedule
(AIRS update screen no. 330)
‘ - I V -
Dec .Feb:
Mar. May:
Jun. Aug:
Sep . Nov:
Days per Week
HoürsperDay I I I
•HoursperYear I I I I I
II. Point Level Emission Data
100%
E
-------
Emission Statement Initial Reporting Form
for New and Modified Sources
III. Segment Level Emission Data
2. Peak Ozone Season Daily Process Rate I I I I I I I I
(AIRS update screen no. 340) units
3. Pollutant.speciflc Data
(AIRS update screen no. 341)
voc
A. Estimated Actual Annual Emissions
1111111 ITonsperYear
1T Emission
Method Code U Factor______ ___
unit
B. Typical Ozone Season Day Emissions
1111111 IPoundsperDay
Emissions Emission
Method Code Factor_______ ____
wsit
C. Control Equipment Identification Code
I I I I I I I I
Primazy Secondaq
D. Control Equipment Efficiency (%)
I I 1,1 I I I
NOx
A. Estimated Actual Annual Emissions
11111 I I I Tons per Year
unit
Emissions Emission
Method Code L..J Factor
B. Typical Ozone Season Day Emissions
1111111 IPoundsperDay
wilt
C. Control Equipment Identification Code
I I I I I I I I
Pr(mazy Secondazy
D. Control Equipment Efficiency (%)
I I 1.L I I I
.
El
Method Code L_J Factor
• SS S 5 • • % 5
S .S . . . . .. - ‘S.-
- Cj b .
‘J ,. ‘ -J .
t
I. Annual Process Rate ___________________ __________
(AIRS update screen no. 340) units
i1
-------
Emission Statement Initial Reporting Form
for New and Modified Sources
III. Segment Level Emission Data
roiIutant.si,ecific Data
• Pollutant______________
A. Estimated Actual Annual Emissions
11111111 Tons per Year
Emissions fl Emission
Method Code L.J
Factor
ulut
B. Typical Ozone Season Day Emissions
Pollutant______________
A. Estimated Actual Annual Emissions
1111111 ITonsperYear
Emissions I 1
Method Code U Emission
Factor
unit
B. Typical Ozone Season Day Emissions
1111111. IPoundsperDay 11111111 PoundsperDay
Emissions I 1
Method Code U Pmkcon
Factor________ ____
urnt
C. Control Equipment Identification Code
LI I I H I I
Primary Secondary
D. Control Equipment Efficiency (%)
I I 1,1 I I I
Emissions r—,
Method U Emission
Factor________ ____
wtit
C. Control Equipment Identification Code
I III I I II
Primary Secondary
D. Control Equipment Efficiency (%)
I I 1.1 I I I
(AIRS w,dae screen no. 34!)
-------
APPENDIX H
Par.t 3
Example Instructions for Completion of the
Emission Statement Initial Reporting Form
This emission statement reporting form has been tailored to
meet the needs of (our facility. Through coordinatioz with
(Insert State or local agency], it has been determined that your
facility consists of (#] points and (#1 segments. As such, the
enclosed form consists of one plant page, (#] point pages and (#1
segment pages.
In order to comply with the (insert State statute or
regulation] ‘for emission statement reporting, all, of the pages
must be completed and returned to C insert State or local agency].
In addition, a signed and dated cettification of data accuracy
must be. included with the completed form.
-The following text will instruct you how to accurately
complete the emission statement initial reporting form. Please
review the instructions carefully. Any questions should be
forwarded to (insert State contact and telephone number].
An example surface coating facility is used throughout these
instructions to help clarify some of the specific data
requirements. The example surface coating plant uses two types
of coatings and consists of one point and two segments.
I. Plant Level Emission Data
The shaded area is for (Insert State or local agency] use only.
1. Source Identification : The complete facility name, physical
location (facility address), and mailing address.
2. Calendar year of emissions : Two digits representing the
calendar year for which the emissions data are applicable
(e.g., 91 for 1991 emissions).
3. SIC (Standard Industrial Classification) Code : The SIC code
is a four digit code which classifies sources according to
economic activity. SIC codes and their descriptions are
listed in the Standard Industrial Classification Manual,
published by the Office of Management and Budget. Depending
upon its operation, a facility may have more than one SIC
code; up to three separate codes may be entered.
4. Latitude and Lonaitude : Your facility must supply latitude
and longitude in accordance with EPA ’s Locational Data
Policy.
H-iC
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II. Point Level Emission Data
The shaded area is for (insert State or local agency] •us only.
1. Percentage Annual Throughput : The percent of annual
throughput achieved in the seasons specified (DEC-FEB, MAR-
MAY, JUN -AUG , and SEP-NOV). The first season (DEC-FEB)
will actual’ly encompass 2 calendar years (e.g., DEC ‘92 —
FEB ‘93). However, the peràentages should not total greater
than 100%. Annual throughput can represent the amount of
fuel used, the amount of solvent consumed, or the amount of
product produced.
The example surface coating plant applies 110,000 pounds of
coating annua],ly: 25,000 pounds in December - February,
35,000 pounds in March - May, 20,000 tons i n June - August,
and the remaining 30,000 tons in September - November. To -
determine the percentage annual throughput, the amount of
coating applied during each season would be divided by the
total amount of coating applied. The resulting percentage
annual throughput in this, example would be: 23% December -
February, 32% March - May, 18% June - August, and 27%
September - November.
2. Normal Operating Schedule : The annual average of the days
per week, hours per day, and hours per year that the
facility operates.
III. Segment Level Emissions Data
The shaded area is for (insert State or local agency] use only.
A source classification code (SCC) is an EPA identifier for a
specific segment. The SCC and its description are provided by
the State and are displayed in the shaded box at the top of the
segment form. -
The example surface coating plant uses two types of coatings and
as such has two SCCs. For coating number 1, a solvent based
paint, the SCC is 4-02-001 -01. For coating number 2, an
the SCC is 4-02-005-01. Data concerning each SCC should be
provided on separate segment level forms.
1. Annual Process Rate : This number represents the amount of
product throughpi.it, the amount of solvent consumed, or the
amount of fuel burned. The units for the annual process
rate depend upon the specific SCC. The appropriate units
for reporting the annual process rate can be determined by
using the SCC and referencing the EPA publication AIRS
Facility Subsystem Source Classification Codes and Emission
Factor Listing for Criteria Air Pollutants, or by contacting
H-i 1
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(insert State/local contact and telephone number].
To determine the annual process rate, the example surface
coating facility should determine the amount of coating
number 1 applied. The facility does not process fuel, but
does throughput 110,000 pounds of coating anxwally. Of the
110,000 pounds, 70,000 pounds of coating are applied as a
solvent based paint, coating number 1. The SCC for coating
number 1, as provided by the State, is 4-02-001 -01. By
referencing the above named document, or by contacting the
State, the appropriate units are determined to be “tons of
coating mix applied”. Since the amount of coating applied
is known by the facility, the annual process rate may be
reported as 70,000/2,000, or 35 tons of ,coating applied.
Alternatively,’ the source may’ choose to compute an annual
proce s rate based on the gallons of coating applied, which
is listed under a separate SCC.
A similar process would beused to compute the annual
process rate foe ’ coating number 2. The data would be
reported on the second segment level-emission data form, and
would correspond to the State provided SCC for coating
number 2.
2. Peak Ozone Season Daily Process Rate : The average daily
process rate during the peak ozone season. The ozone season
is defined to be the period of the year during which the
conditions for the formation of ozone is most favorable.
The peak ozone season for the region in which your facility
is located is (insert appropriate peak ozone season]. The
peak ozone season covers a three month period during which
most ozone exceedances occur, while the ozone season can
extend much longer. The process rate should be determined
as above, except averaged to represent a day during the peak
ozone season instead of the annual total. The correct
reporting units should be determined as outlined above.
3. Pollutant Specific Data : Pollutant specific data are
required for the following pollutants: volatile organic
compounds (VOC) and oxides of nitrogen (NOx) (insert
additional pollutants, if applicable]. VOC and I T0x have
been determined to be significant contributors to the
formation of ozone. Therefore, data on the sources of these
pollutants are necessary to assist in State air quality
planning. (The additional pollutants are required to
coordinate State reporting requirements. By providing data
for these pollutants, your facility will avoid duplicatiz g
your required emission reporting efforts.] The same data
are required for each of the pollutants.
3A. Estimated Actual Annual Emissions : Actual annual emissions
should represent the actual emissions for the source for the
H-12
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calendar year, including upsets, downtime, and fugitive
emissions. Emissions from significant and minor processes
within the plant must be part of the emissions estimate.
When estimating annual VOC emissions, it is necessary to
exclude methane, ethar e and chioroflourocarbons from the
estimation because they are considered to be •photochemicaliy
nonreactive. Units must be in tons of pollutant emitted per
year. Actual emissions can be derived in a number of ways.
Emissions can be estimated--based-upon any-of the EPA’S -
acceptable methods as detailed by the following emission
method codes. -
The example surface coating facility has decided to use an
emission factor to estimate their emissions. An emission
factor is a number that, when multiplied by the appropriate
process data (such as tons of coating mix applied), will
yield the facility’s estimated actual annual emissions. By
using the EPA document, AIRS Facility Subsystem Source
Classification Codes and Emission Factor Listing for
Criteria Air Pollutants, the facility has determined that
for SCC 4-02-001-01 (coating number 1), the emission factor
is 1120 pounds of VOC per ton of coating mix ‘applied. As
previously determined, 35 tons of coating were applied as
coating number 1, therefore the amount of VOC emissions from
coating number 1 is 35 X 1120, or 39,200 pounds per year.
To achieve the required tons per year figure, 39,000 is
divided by 2,000, resulting in estimated actual annual
emissions of 19.6 tons per year. This figure should then be
entered on the segment, level emission data form
corresponding to SCC 4-02-001-01. The same procedure should
be followed, using emission factors for the second coating,
to determine the emissions for coating number 2 (i.e., SCC
4-02-005-01), which is then entered on the second segment
level emission data form and for all other pollutants.
Estimated Emissions Method Code : This code denotes the
method used to calculate your facility’s emissions. Valid
codes are as follows:
1 - USER CALCULATED BASED ON SOURCE TEST OR OTHER EMISSION
MEASUREMENTS.
2 - USER CALCULATED BASED ON MATERIAL BALANCE USING
ENGINEERING KNOWLEDGE OF THE PROCESS.
3 - USER CALCULATED BASED ON AP-4.2 EMISSION.FACTOR (OR SCC
EMISSION FACTOR).
4 - USER CALCULATED BY BEST ENGINEERING JUDGEMENT
5 - USER CALCULATED BASED ON A STATE OR LOCAL AGENCY -
EMISSION FACTOR.
6 - NEW CONSTRUCTION, NOT YET OPERATIONAL. EMISSIONS ARE
ZERO.
7 - SOURCE CLOSED; OPERATION CEASED. EMISSIONS ARE ZERO
8 - COMPUTER CALCULATED BASED ON STANDARD EMISSION FACTOR.
H-i 3
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(5CC EMISSION FACTOR FILE)
9 - COMPUTER CALCULATED BASED ON OTHER APPROVED EMISSION
FACTOR.
All emissions calculated by a facility will be denoted by
codes 1 through 5. Codes 8 and 9 represent emissions that
were calculated by the EPA’S data base system..
The example surface coating facility used aa emission factor
from the AIRS Facility Subsystem Source classification codes
and Emission Factor Li .iñ for Criteria Air Pollutants.
Therefore, the emission method code entered by the example
facility is 3. -
Emission Factor : The emission factor used to compute the
estimated annual emissions. If an emission factor was used
in the computation, it should be entered in the space
provided. The emission factor should include the
appropriate units (e.g., pounds of pollutant per ton of
coating applied), Up to 7 characters can be used to
indicate the emission factor. In the event that emis ion
factors are utilized in the calculation of emissi.ons, a
source mustS use emission factors that are approved by EPA or
the State. Otherwise, the source must petition the State
for approval of their emission factors.
The example facility’s emission factor for coating number 1,
SCC 4-02-001-01, is 1120 lbs VOC/ton of coating mix applied.
Again, this emission factor was derived by examining the
AIRS SCC manual for the appropriate SCC, in this case 4-02-
001-01, and the correct pollutant, VOC. The emission factor
for coating number 2, SCC 4-02-005-01, is found to be 840
lbs VOC/ton of coating mix applied.
3B. Tvoical Ozone ‘Season Day Emissions : These emissions must be
supplied in pounds per day and must represent actual
emissions during the peak ozone season. As mentioned under
estimated actual annual emissions, when estimating VOC
emissions, methane, ethane- - --and chiorof-lourocarbons are not
to be included in the estimation. To calculate the typical
ozone season day emissions, the throughput for a typical
ozone season day must be determined. The peak ozone season
for the region in which your facility is located is (insert
peak ozone season]. The, throughput should be determined as
previously discussed. Actual emissions can be derived in a
number of ways. Acceptable EPA methods are the same as
those listed above. Estimates should account for both
significant and minor process emissions, and fugitive
emissions should also be included in the emissions reported
if applicable.
The example surface coating facility has decided ‘to use an
M-14
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• emission factor to compute their typical ozone season day
emissions. The peak ozone season for their region has been
supplied by the State and the source has determined that on
an average day during the peak ozone season, they apply
approxin ately 165 pounds of coating. Using the emissi
factor for SCC 4-02-001-01 (coating number 1) they have
de termined that 1120 pounds of VOC are emitted for every ton
of coating number 1 applied. To calculate the daily
emissions, the tons per day of coating applied during the
ozone seasofl is determined and multiplied by the emission
factor of 1120. The resulting daily emissions are:
165/2,000 = .0825 tons per day X 1120 pounds of VOC per ton
= 92.4 pounds of VOC. The dame process is repeated for
coating..number 2 (and for any other pollutants).
Estimated Emissions Method Code : The emissIon method codes
are identical to the method codes presented in.3A.
Once again, the example source would enter 3 for the - -
estimated emissions method code.
Emission Factor : The EPA or State approved emission factor
used to compute the typical ozone season day emission
estimate. If an emission factor was used in the
computation, it sho$d be entered in the space provided.
The emission facto r”Should include the appropriate units
(e.g., pounds of pollutant per ton of coating applied). Up
to 7 characters can-be used to indicate the emission factor.
H-15
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3C. Control EcuiDment Identification Code : Control equipment is
used to limit the emission of pollutants to the atmosphere.
Numerous types of control equipment may be in place at a
facility. For emission statement reporting, your facility
is required to report the primary and secondary control
equipment codes. The following list details the control
equipment codes for different control equipment. -For more
information on the correct code for the control equipment at
your facility, contact (insert appropriate State or local
contact and telephone number]. Valid codes are as follows:
000
001
-
-
NO EQT IPMENT
WET SCRUBBER HIGH EFFICIEN.
027 - REDUC COMEUST.- PREHEAT
028 - STEAM OR WATER INJECTION
002
-
WET SCRUBBER MED EFFICIEN.
029 -LOW-EXCESS. - AIR FIRING
003
-
WET SCRUBBER LOW EFFICIEN.
030 - FUEL - LOW NITROGEN CONTENT
004
-
GRAVITY COLL HIGH EFFICIEN.
031 - AIR INJECTION
005
-
GRAVITY COLL MED EFEICIEN.
032 - AMMONIA INJECTION
006
-
GRAVITY COLL LOW EFFICIEN.-
033 - CONTRL OF % 02 IN COMB.AIR
007
-
CENTRIF COLL HIGH EFFICIEN.
034 - WELL.-LORD/SODIUM SULF SCRB
008
-
CENTRIF COLL MED EFFICIEN.
035 - MAGNESIUM OXIDE SCRUBBING
009
-
CENTRIF COLL LOW EFFICIEN.
036 - DUAL ALKALI SCRUBBING
010
-
ELECTRO PREC HIGH EFFICIEN.
037 - CITRATE PROCESS SCRUBBING -
011
-
ELECTRO PREC MED EFFICIEN.
038 - AW4ONIA SCRUBBING
012
-
ELECTRO PREC LOW EFFICIEN.
039 - CATAL. OXID-FLUE GAS DESULF
013
014
-
GAS SCRUBBER, GENERAL
MIST ELIMXNATOR HIGH VELOC.
040 - ALKALIZED ALUMINA
041 - DRY LIMESTONE INJECTION
015
-
MIST ELIMINATOR LOW VELOC.
042 - WET LIMESTONE INJECTION
016
-
FABRIC FILTER HIGH TEMP.
043 - SULF ACID PLNT-CONTACT PROC
017
-
FABRIC FILTER MEDIUM TEMP.
044 - SULF ACID PLNT-DBL CNT PROC
018
-
FABRIC FILTER LOW TEMP.
045-. SULFUR PLANT
019
-
CATALYTIC AFTERBUBNER
046 - PROCESS CHANGE
020
-
CAT. AFTERBURN - HEAT EXCH.
047 - VAPOR RECOVERY SYSTEM
021
-
DIRECT FLAME AFI’ERBURN
048 - ACTIVATED CARBON ADSORPTION
022
-
D.F. AFrERBURN - - HEAT EXCH.
049 - LIQUID FILTRATION SYSTEM
023
-
FLARING
050 - PACKED-GAS ABSORBION CÔLtJ}4N
024
MODIF FURNACE/BURNER DESIGN
051 - TRAY-TYPE GAS ABSORB COLU1V
025
-
STAGED COMEUSTION
052 - SPRAY TOWER
O2 6
-
FLUE GAS R.ECIRCULATION
053 - VENTURI SCRUBBER
H-16
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‘3C. Control Eaui ment Identification Code : (cont.)
054 - PROCESS ENCLOSED
055 - IMPINGEMENT PLATE SCRUBBER
056 - DYNAMIC SEPARATOR (DRY)
057 - DYNAMIC SEPARATOR (WET)
058 - MA OR PANEL FILTER
059 - METAL FABRIC FILTER SCREEN,
060 - PROCESS GAS RECOVERY
061 - DUST $UPPRESS - WATER SPRAY
062 - D. S. - CHDI STAB. /WET AGENTS
063 - GRAVEL BED FILTER
064 - ANNULAR RING FILTER
065 - CATALYTIC REDUCTION
066 - MOLECULAR SIEVE
067 - WET LIME SLURRY SCRUBBING
068 - ALKALINE FLY ASH SCRUBBING
069 - SODIUM CARBONATE SCRUBBING
070 - SODIUM-ALKALI SCRUBBING
071 - FLUID BED DRY SCRUBBER
072 - TUBE AND SHELL CONDENSER
073 - REFRtGERATED CONDENSER
074 - BAROMETRIC CONDENSER
075 - SINGLE CYCLONE
076 - MULTIPLE’ CYCLONE
W/O FLY ASH REINJECTION
078 - BAFFLE
079 - MULTIPLE CYCLONE
W/ FLY ASH REINJECTION
080 - CHEMICAL OXIDATION
081 - CHEMICAL REDUCTION
082 - OZONATION
083 - CHEMICAL NEUTRALIZATION
084 - ACTIVATED CLAY ADSORPTION
085 - WET CYCLON IC SEPARATOR
086 - WATER CURTAIN
087 - NITROGEN BLANI(ET
088 - CONSERVATION VENT
089 - BOTTOM FILLING
090 - CONVERSION TO VARIABLE
VAPOR SPACE TANK
091 - CONVERSION TO FLOATING
ROOF TANK
092 - CONVERSION TO PRESSURIZED
TANK
093 - SUBMERGED FILLING
094 - UNDERGROUND TANK
095 - WHITE PAINT
096 - VAPOR LOCK BALANCE RECOVERY
SYSTEM
097 - INSTALLATION OF SECONDARY
SEAL FOR EXTERNAL FLOATING -
ROOF TANK
098 - MOVING BED DRY SCRUBBER
099 - MISQ LLANEOUS CONTROL
DEVICES
101 - HIGH EFFICIENCY PARTICULATE
AIR FILTER
The example surface coating facility’s primary control
device is a vapor recovery system. The facility has no
secondary control device. Therefore, the facility should
-enter 047 for the primary control device and 000 for the
secondary control device.
3D. Control Eaui ment Efficiency : The percent effectiveness of
the control device(s). It represents the actual total
control ,efficiency achieved by the control device(s). The
actual efficiency should reflect control equipment downtime
and maintenance degradation. If the actual control
efficiency is unavailable, the design efficiency or control
efficiency limit imposed by a permit should be used.
In addition, the capture efficiency must be taken into
account . when determining control efficiency. Capture
efficiency is a measure of the volume of pollutant captured
H-i 7
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or recovered relative to the volume of pollutant generated.
The entire emission stream may not always pass through
the control equipment. A certain percentage of emissions
may escape as fugitive emissions and are therefore not
controlled, and the calculated emissions must reflect this.
H-18
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APPENDIX -.1
EPA FACILITY ID CODE
The Facility Identification Data Standard (FIDS) became
effective on April 9, 1990, after, formal Agency-wide review, when
it became EPA Order #2180.3. The objective of the FIDS is to
unify facility data maintained by different EPA programs. The
FIDS institutes the assignment of a unique identifier to
facilities regulated under Federal environmental laws. In
addition, this “EPA facility identification code” is to be part
- of every data collection, whether manual or automated, containing
information on that facility. The FIDS will improve the
compatibility of all Agency facility data by providing a
fundamental piece of “linkable” information, the EPA facility ID
code, to all facility-oriented data, allowing integration across
systems and data from different sources. Assignment of EPA
facility ID codes will be done using the Facility INDex System
(FINDS), an EPA data base containing an inventory of facilities
to which ID codes have been assigned.
EPA Headquarters media program staff (i.e., those staff
within programs directly mandated by Federal environmental laws)
are responsible for large-scale adoption and implementation of
the FIDS in all their program activities. These programs also
prQvide coordination for the FIDS in that they develop Program
FIDS Implementation Plans and implement FIDS and FINDS with their
Regional and State counterparts. EPA Regional FIDS participants
are responsible for ensuring that assignment and use of EPA
facility ID codes in all facility-related activities is complete,
that the necessary information is available and correct, and that
discrepancies are resolved. States must uphold the requirements
of the FIDS for facilities regulated under Federal environmental
1aw r whether or not those facilities are also regulated under
state law. For such facilities, states must use EPA facility ID
I—i -
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codes in ail activities involving the EPA. State part .cipants
may opt for either of two types of integration with FINDS: (1)
they may be indirect participants through the EPA regional office
program and FINDS staff, or (2) they may be direct users of FINDS
by entering data and assigning ID codes.
1—2
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• .‘ ‘.:.- . ‘.•.•‘•.
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GUIDELINES FOR ESTIMATING AND APPLYING RULE EFFECTIVENESS FOR
OZONE/CO STATE IMPLEMENTATION PLAN
BASE YEAR INVENTORIES
Ozone and Carbon Monoxide Branch
Air Quality Management Division
Office of Air Quality Planning and Standards
U.S. Environmental Protection Agency
Research Triangle Park, North Carolina 27711
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ADDENDUM
After preparation of this document, EPA decided to recommend
additional flexibility in accounting for rule effectiveness (RE)
in the development of base year emission inventories. This
addendum provides guidance regarding that flexibility.
METHODS FOR ACCOUNTING FOR RULE EFFECTIVENESS FOR VOLATILE
ORGANIC COMPOUND (VOC) SOURCES
A State or local agency that prepares VOC emission inventories
may account for rule and control effectiveness by methods other
than those specified in this document. Deviations from methods
in document must meet the following criteria, as well as criteria
specified in “Documentation and Concurrence,” below:
——In evaluating rule effectiveness under a method that
deviates from the guideline, the State should consider:
-—The overall capture and control efficiency generally
available from the kind of capture and control
equipment being assessed;
-—Any stack test/performance evaluation that was
performed on the capture and control equipment;
-—The rated capture and control efficiency (from
manufacturer’s specifications or literature);
-— The kinds of activities that affect the
determination of day-to-day performance of the capture
and control equipment that are listed in the
questionnaires that are contained in the guideline
document (e.g., ease of determining compliance, type of
control equipment, frequency and quality of
inspections, level of training of inspectors).
——The State or local agency should provide a way of
determining which sources have applied control to avoid
having planners “recontrol” already controlled sources.
METHODS FOR ACCOUNTING FOR RULE EFFECTIVENESS FOR SOURCES OF
OXIDES OF NITROGEN AND CARBON MONOXIDE
Rule effectiveness must be considered for sources of oxides
of nitrogen and carbon monoxide where such sources are covered by
rules or regulations in the State implementation plan (SIP). If
a State or local agency does not use either the questionnaire
method or the Stationary Source Compliance Division (SSCD)
protocol, that agency should develop its own method for assessing
RE and should not rely solely on the 80 percent default value.
1.1
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In evaluating rule effectiveness under such a method, the State
should consider the kinds of activities that are listed in the
questionnaires that are contained in the guideline document
(e.g., ease of determining compliance, type of control equipment,
frequency and quality of inspections, competence of inspectors).
Methods for accounting for rule effectiveness different from the
methods in the document must also meet the criteria specified in
“Documentation and Concurrence,” below.
RARE CATASTROPHIC OR ACCIDENTAL RELEASES
Rare catastrophic or accidental releases may be inventoried
in a manner deemed appropriate by the State or local agency;
these releases do not necessarily need to be reflected in a rule
effectiveness assessment, unless there is a pattern of re—
occur,rence. The methods developed must meet the criteria
specified in “Documentation and Concurrence,” below.
DOCUMENTATION AND CONCURRENCE
The above paragraphs describe cases where methods that
deviate from the methods in this document may be employed. In
developing and using such a method, the following general
criteria must be met:
--The Regional Office, in consultation with the EPA Office
of Air Quality Planning and Standards, must concur on the
method.
--Documentation must be available at the State or local
agency for inspection by EPA; documentation does not have to
be submitted with emission inventory.
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TABLE OF CONTENTS
Section . Page
2 PROCEDURES FOR ESTIMATING CATEGORY-SPECIFIC RE
2.1 Determining Sources for Application of Rule
Effectiveness
2.1.1 Excepted Sources
2.1.2 Direct Determination of Emissions
2.1.2.1 Criteria for Direct Determination
Emissions
2.1.2.2 Example of Direct Determination
2.1.2.3 Major Classes of Emissions
Estimation Techniques
2.1.2.4 Documenting Direct Determination
2.2 Overview of Applicable Approaches for
Determining RE
2.3 Default Value Approach
2.4 Questionnaire Approach
2.4.1 Level of Effort
2.4.2 Procedure
2.4.2.1 Identifying Personnel to Perform
the Evaluation
2.4.2.2 Preliminary Screening of Sources
2.4.2.3 Choosing Sources to Evaluate .
2.4.2.4 Sources with Control Efficiencies
Greater Than 95 Percent
2.4.2.5 Answering the Questionnaires .
2.4.2.6 Determination of Rule Effectiveness
Values
2.5 SSCD Study Approach
2.5.1 Purpose of the Study
2.5.2 Summary of the SSCD Study
Approach Procedures
2.5.3 Calculating RE from an SSCD Study
2.6 Using Results from SSCD Studies,
Questionnaires and the Default .
Addendum
List of Tables
List of Figures
1 INTRODUCTION
1.1 Background
1.2 Meaning of Rule Effectiveness
1.3 Rule Effectiveness for Base Year Inventories
1.4 Factors Affecting Rule Effectiveness . .
fl . 5 Calculating and Applying Rule Effectiveness
1.6 References
. . . . ii
• . . • vi
• • . . vi
1
2
3
4
5
5
8
9
9
9..
• • 11
12
12
13
15
16
16
18
18
19
19
19
20
21
22
22
23
23
24
25
27
iv
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TABLE OF CONTENTS (continued)
Section Page
3 APPLICATION OF RULE EFFECTIVENESS IN
BASE YEAR INVENTORIES
3.1 Introduction
3.2 Calculating Rule—Affected Emissions
3.2.1 Control Efficiency
3.2.2 AIRS Coding
3.3 Documenting Rule Effectiveness for the
SIP Submittal
3.4 References .
4 ,EX.ANPLE CALCULATIONS
4.1 Point Sources
4.1.1 Bulk Terminals (Loading Racks)
4.1.2 Beverage Can Coating
4.1.3 Paper Coating Facility .
4.1.4 Metal Furniture COating .
4.1.5 Automobile Assembly Plant
4.1.6 Large Appliance Coating .
4.1.7 Large Petroleum Dry Cleaner
4.1.8 Graphic Arts
4.2 Area Sources
4.2.1 Stage I (Area Source Category)
4.2.2 Architectural Coating
(Area Source Category) .
APPENDIX A: RULE EFFECTIVENESS EVALUATION
FORM—POINT SOURCES
APPENDIX B: RULE EFFECTIVENESS QUESTIONNAIRE—AREA
SOURCE CATEGORIES
APPENDIX C: DIRECT DETERMINATION EXAMPLE . .
APPENDIX D: DETERMINING SAMPLE SIZE
APPENDIX E: DEFAULT CONTROL ASSUMPTIONS FOR
- CTG CATEGORIES
30
30
30
• • 31
33
34
34
36
36
36
• 37
40
40
41..
42
43
.. 43
451
45
46
A—i
B—i
C—i
D —1
E—1
V
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LIST OF TABLES
Number - Page
1—1 Factors Influencing Rule Effectiveness 6
]—2Applying RE in Base Year SIP Inventories 7
2—1 Source Categories Covered by EPA Control
Techniques Guidelines (CTGs) 10
2—2 Direct Determination Scenarios 12
—3 Emission Estimation Me:hods 14
2—4 Documenting Direct De:ermination for Surface Coating 17
2—5 Example of Weighted RE Value Using Questionnaire . . 24
2—6 Combi ning SSCD Study and Questionnaire Approaches . . 29
3—1 Default Petroleum Storage Tank Control Efficiencies . 32
3—2 Coding RE in Electronic Inventory Submittals . . . . 34
D—1 Sensitivity Analysis of Sample Size:
Confidence Level = 90% D—5
D—2 Sensitivity Analysis of Sample Size:
Confidence Level = 95% D—6
D—3 Sensitivity Analysis of Sample Size:
Confidence Level = 99% D—7
E—1 Typical VOC Reduction per Facility for CTG Categories
Based on CTG Documents E—3
LIST OF FIGURES
Number Page
2—I. Comparison of the Questionnaire and SSCD Study . . . . . 28
vi
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SECTION 1.
INTRODUCTION
Emission inventories are assembled with the intent to provide
the most accurate, representative emissions estimates available.
The 1990 Clean Air Act Amendments (CAAA) require base year annual
and daily actual emission inventories to be gathered as part of
the State implementation plan (SIP) for areas not in attainment
for the current ozone and/or carbon monoxide (CO) national
ambient air quality standards (NAAQS). These estimates are used
to support inventory projections, ambient modeling applications,
attainment strategy (regulatory) development and subsequent
(periodic) inventories.
Prior to the post—198 SIP requirements, SIP inventories and
their applications assumed that regulatory programs for
stationary sources were being and would continue to be
implemented with full effectiveness, achieving all of the
reported, required or intended emission reductions, and
maintaining that level over time. However, experience during the
decade of the 1980s has shown these regulatory programs to be
less than 100 percent effective in.achieving the necessary
emissions reductions in most areas of the country. This means
that SIP’s before 1987 typically have understated actual
emissions in both the baseline and projected inventories,
resulting in lower emission reduction targets than were actually
necessary to attain the NAAQS.
To avoid these miscalculations and more accurately estimate
actual emissions, consideration shall be made for “rule
effectiveness.” This document provides guidelines for
calculating and applying rule effectiveness in. SIP base year
inventories. The concepts and procedures discussed herein
currently apply to ozone nonattainment area inventories, but will
be applicable to SIP inventories for other pollutants as the need
arises. This.guidance focuses on developing estimates of rule
effectiveness (R.E) for the inventory that are used to obtain more
realistic emission estimates for source categories.
This guidance describes the procedures developed by the
Office of Air Quality Planning and Standards (OAQPS) to estimate
the effectiveness of existing regulatory programs to achieve
emissions control for stationary sources. One approach is the
detailed study protocol developed by the Environmental Protection
Agency (EPA) Stationary Source Compliance Division (SSCD)
involving on—site inspection and testing on a single source
category by source category basis. The second approach,
developed by the Air Quality Management Division (AQMD), involves
answering generic questionnaires using available file information
for specific sources and extrapolating the results to other
sources in the same source categories. -The third option is to
use the 80 percent default for estimating RE. The results of
1
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these approaches are to be used to estimate RE for the base year
emission inventories being prepared in response to the 1990 CAAA
calls for ozone and Co SIP’s.
The document is divided into four main sections. The
remainder of Section 1 discusses the definitions and roles of
various types of effectiveness measures that have historically
been referred to as “rule” effectiveness and introduces the
concepts covered in this guidance. Section 2 describes the
procedures to be used in estimating category—specific RE values
for States that choose not to use the 80 percent default.
Section 3 contains instructions on how to apply RE to sources in
the base year inventories, including a discussion of direct
determination of emissions. Section 4 provides RE examples to
aid in the calculation of emissions for base year inventories.
Appendices A and B contain the point and area source RE
que tionnaires, respectively; Appendix C illustrates direct
determination and Appendix D provides statistical guidelines for
sample selection for the point source questionnaire. Appendix E
presents typical VOC emissions reductions for Control Techniques
Guideline categories.
1.1 BACKGROUND
On November 24, 1987, EPA proposed the post—1987 ozone/CO
policy. 1 A key component of this policy was the proposal that
States account for the actual effectiveness of both present and
future regulatory programs. This measure was termed “rule”
effectiveness and represented the actual degree of source
compliance. For stationary sources, EPA proposed that a baseline
assumption of 80 percent RE should be applied to all regulated
source categories in the inventory until a local category—
specific evaluation could be completed to ascertain the actual
category—specific effectiveness. (This 80 percent default value
was initially based on a survey of several states that estimated
the actual effectiveness of their emissions rules.)
EPA received numerous comments regarding the RE requirements
proposed in that policy. None of the conunenters challenged the
concept of applying RE in the inventories or of improving the RE
of particularly troublesome categories. Many commenters,
however, suggested that EPA provide an alternative to the across—
the—board 80 percent presumption. The general theme contained in
these comments suggested that EPA should allow State and .local
agencies flexibility in making RE estimates so that regulatory
programs showing good compliance rates for certain source
categories could receive higher credit than those showing lower
compliance rates .
1 The issue of the creditability of RE improvements toward5 meeting reduction
goals is not discussed in this document. Creditability will be included in a
more general discussion of rule effectiveness in forthcoming guidance.
2
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EPA provided guidance to the States in preparing the new SIPs
pursuant to Title I of the CAAA through the Federal Register
(General Preamble for Title I Implementation, April 16, 1992)
EPA policy requires that base year stationary source inventories
of volatile organic compounds (VOCs), nitrogen oxides (NO 1 ) and
carbon monoxide (CO) be adjusted for RE, using either the 80
percent default value or the results from one of the procedures
described herein.
1.2 MEANING OF RULE EFFECTIVENESS
RE reflects the ability of a regulatory program to achieve
all the emission reductions that could have been achieved by full
compliance with the applicable regulations at all sources at all
times. The precise degree to which all affected sdurces comply
witl’i a particular regulation over time is virtually impossible to
ascertain without continuously monitoring emissions at all
sources. RE can be estimated, however, by evaluating the success
of a regulatory program at a few sources and extrapolating the
results to others.
RE requires an understanding of a source’s uncontrolled
emissions and the control placed on that source, rather than the
controlled emissions. As demonstrated in Section 4, the RE value
is applied to adjust the control-efficiency and is not applied to
the emission estimate directly. For example, 80 percent RE means’
the control effectiveness is actually 80 percent of the estimated
control efficiency; it does not mean that actual emissions are 20
percent greater than estimated.
The appropriate method for determining and using RE depends
upon the purpose for the determination: compliance, program or
inventory. RE discussed outside the particular purpose may be
generically referred to as control effectiveness. The following
three common uses for a control effectiveness estimate have
historically been called rule effectiveness:
• Identifying and addressing weaknesses in control
strategies and regulations related to compliance and
enforcement activities (more accurately called Compliance
Effectiveness)
• Defining or refining the control strategy necessary to
achieve the required emissions reductions designated in
the CAAA (more accurately called Program or SIP Design
Effectiveness)
• Improving the accuracy or representativeness of emission
estimates across a nonattainment area (hereafter called
Rule Effectiveness)
Each user needs to determine the effectiveness of rules and
controls in reducing emissions to the desired level as it relates
3
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to the specific purpose. For example, SIP planners are Concerned
with the ability of the SIP strategy to meet specific ambient
pollutant targets. Compliance personnel are interested in the
relationship between actual and permissible emissions for a
particular source or source category. Inventory personnel need
to know the expected exceedance of emissions from the base
estimate. This document concentrates on RE; Program and
Compliance Effectiveness will be addressed in subsequent
guidance.
1.3 RULE EFFECTIVENESS FOR BASE YEAR INVENTORIES
The inventory RE is an adjustment to estimated emissions data
to account for emissions underestimates due to compliance
failures and the inability of most inventory techniques to
include these failures in an emission estimate. The RE
adjustment accounts for known underestimates due to noncompliance
with existing rules,, control equipment downtime or operating
problems and process upsets. The result is a best estimate of
actual base year emissions, leading to more reliable estimates of
expected emission reductions and control measure effectiveness in
future years. EPA requires that base year SIP inventories apply
and report RE. 3
Base year inventory RE considers that emission changes
brought on by growth, production changes, etc. are artifacts that
should be excluded when determining RE. RE simply adjusts the
estimated emissions for the effects of noncompliance. By
definition, all source categories for which a regulation exists
should have an RE value between zero and 100 percent (i.e.,
source categories for which no regulation exists would have no RE
factor associated with them) . To say that a particular
regulation was 100 percent effective would mean that the
regulatory agency could ensure complete and continual compliance
at all sources covered by the regulation, with no incidence of
control equipment failure or process upset at any source and no
sources evading control requirements. To say that a regulation
was zero percent effective would mean that no sources in the
category had made any eff ’ort to comply with the applicable
regulation. RE cannot be less than zero or greater than 100 by
definition.
The connection between SIP rules and actual emissions
reductions is that State or local agencies must assume that there
will be less than 100 percent compliance of rules in the absence
of other information. Otherwise, rules will not actually achieve
the intended reductions mandated in Section 182(b) (1) of the
CAAA: 15 percent over 6 years and 3 percent per year thereafter
until attainment is reached.
4
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1.4 FACTORS AFFECTING RULE EFFECTIVENESS
There is no succinct mathematical formula that adequately
accounts for the many different variables influencing RE,
although it can be thought of as a complex function of the
following types of factors: the nature of the regulation, the
nature of techniques used to comply with the regulation, the
performance of each source in complying with the regulation, and
the performance of the implementing agency in enforcing the
regulation. Table 1—1 lists specific examples of each type of
factor. The list is not exhaustive, however, it demonstrates the
large number and wide variety of factors that affect RE.
1.5 CALCULATING AND APPLYING RULE EFFECTIVENESS
,The remainder of this document explains the calculation of RE
values and the adjustment of base year emissions for RE. Every
base year SIP inventory must apply RE according to the guidelines
set forth herein. The process of examining and applying RE
entails the basic steps listed in Table 1—2. These steps are
explained in detail in the following chapters.
5
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TABLE 1-1. FACTORS INFLUENCING RULE EFFECTIVENESS
Nature of the Rgulat ion
• possible ambiguity or deficiencies in wording
• - level of detail of recordkeeping required
• level of complexity of compliance determination
• inadequate test methods
Nature of Techniques Used to Comply With Regulation
• level of confidence in : - g-term capabilities of control technique
(i.e., whether the eriussions control is prone to failure or
degradation even with a - equate attention)
• complexity of control technique (i.e., likelihood that operator
error or variability in operator technique could affect
compliance)
• potential for fugitive emissions not ducted to control device
(i.e., adequacy of emissions capture system)
Perfo aanca of Source in Complying With Regulation
• trained individual responsible for complying with environmental
regulations
• schedule for maintenance and inspection of control equipment
• adequacy of recordkeeping practices (i.e., can compliance be
determined from available records?)
• ensurance of compliance over time, considering the previous record
of process upsets or control equiprnentmalfunction
• timeliness of response to notices of violation
Perfo ai ce of Impl. nting Agency in Enforcing Regulation
• attention and resources directed at this source or source category
• communications effort, with respect to compliance requirements
• completeness of data maintained on file
• thoroughness in training inspection personnel
• timeliness and thoroughness of inspections
• adequacy of follow—up on noncomplying sources
6
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TABLE 1—2. APPLYING RE IN BASE YEAR SIP INVENTORIES
Step Considerations
Determine Source categories which are subject to
relevant emission controls (i.e., there is a rule
emissions in place) during the year of inventory
categories should be considered.
Identify exempt Emissions from sources with
sources uncontrolled, directly determined or
permanently eliminated emissions are
exempt from adjustment for RE.
Calculate a RE Agencies calculate RE values derived
value (%) for from an SSCD study, the questionnaires
each relevant included in this guidance or the default
category value. Questionnaires require a survey
of sources in the categories identified
in the first step.
Calculate A reasonable estimate of the emissions
control control efficiency for each source is
efficiency for essential to the RE calculation. This
each affected efficiency may be measured or estimated
source based on the control device or estimated
based on the rule in place.
Calculate base Emissions are adjusted for RE as
year emissions described in this document using
(adjusted for uncontrolled emissions, control
RE) efficiency and the RE value; these
emissions are the SIP base year
emissions. -
Document RE When submitting the SIP inventory,
calculations agencies should document the procedures
and calculations made to show that RE
has been appropriately addressed,
including criteria used to exempt
sources .
7
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1.6 REFERENCES
1. State Implementation Plans; Approval of Post—1987 Ozone and
Carbon Monoxide Plan Revisions for Areas Not Attaining the
National Ambient Air Quality Standards; Notice, Federal
Register, Vol. 52, No. 226, November 24, 1987. pp. 45044—
45122.
2. U.S. Environmental Protection Agency, Procedures for
Estimating and Applying Rule Effectiveness in Post—1987 Base
Year Emission Inventories for Ozone and Carbon Monoxide State
Implementation Plans, Office of Air Quality Planning and
Standards, Research Triangle Park, NC, June 1989.
3. U.S. Environmental Protection Agency, Emission Inventory
,Requirements for Ozone State Implementation Plans,
EPA—450/4—91—O1O, Office of Air Quality Planning and
Standards, Research Triangle Park, NC, March 1991.
8
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SECTION 2
PROCEDURES FOR ESTIMATING CATEGORY—SPECIFIC RE
2.1 DETERMINING SOURCES FOR APPLICATION OF RULE EFFECTIVENESS
Every source subject to an emission control regulation during
the inventory period should be considered for application of RE.
For many nonattainment areas, the list of Control Techniques
Guidelines (CTG) categories (Table 2—1) provides a starting point
to identify fegulated sources. It is important to include all
regulated sources, regardless of whether the regulation had
received official EPA approval prior to the inventory period. In
some cases sources are exempted from emissions regulations if an
emission cap (e.g., 25 tons VOC per year) is not exceeded as
defi ned by the emission control rule. These sources are not
necessarily subject to RE, although a State or local agency may
choose to include these sources if compliance with the emissions
cap is a known problem. Once the affected emissions categories
and sources have been identified, each source is reviewed to
determine the appropriate RE application.
2.1.1 Excepted Sources
The fo1lowi ng sources are exempt from the RE adjustment:
• sources where no controls are required (i.e., the source
is unregulated) -
• sources for which control is achieved by means of an
irreversible process change that eliminates the use of
VOC or the potential for CO emissions
• sources for which emissions are calculated by means of a
direct determination
- For sources that are affected by a rule but are completely
uncontrolled, a RE’ of zer9 percent should be recorded in the
inventory. Sources using an irreversible process change to
control emissions should be assumed to be achieving 100 percent
RE. When emissions can be calculated by means of a direct
determination, RE falls out of the calculation and, thus, is not
applicable (i.e., the emissions estimate is not contingent on the
effectiveness of controls). For all other types of sources, RE
should be applied in a manner consistent with Section 3.
Uncontrolled Sources are exempt from application of RE. RE
does not need to be determined for sources that are. completely
uncontrolled, including cases where the source is making no
attempts at compliance (illustrated by the first screening
question on the point source questionnaire (Appendix A)). In
this situation, a regulation is considered to be totally
9
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TABLE 2-1. SOURCE CATEGORIES COVERED BY EPA CONTROL
TECHNIQUES GUIDELINES (CTGa)
Source Category CTG Group
Categories Predominated by Point Sources
Gasoline Loading Terminals i
Gasoline Bulk Plants I
Fixed Roof Petroleum Tanks i
Miscellaneous Refinery Sources I
Surface Coating of: i
Cans i
Metal Coils I
Fabrics I
Paper Products I
Automobiles and Light Duty Trucks i
Metal Furniture I
Magnet Wire I
Large Appliances i
Miscellaneous Metal Parts x x
Flat Wood Paneling i i
Graphic Arts i i
Leaks from Petroleum Refineries II
External Floating Roof Petroleum Tanks 11
Gasoline Truck Leaks and Vapor Collection II
Synthetic Pharmaceutical Manufacturing II
Rubber Tire Manufacturing i i
Equipment Leaks from Natural Gas/Gasoline Processing III
Plants III
Manufacture of HOPE, PP, and PS Resins III
Fugitive Emissions from SOC, Polymer, and Resin III
Manufacturing Equipment xx x
Large Petroleum Dry Cleaners
SOCMI Air Oxidation Processes
Categories Predo v 4 nated by Area Sources
Service Stations — Stage I I
Cutback Asphalt I
Solvent Metal Cleaning i
Coimnercial Dry Cleaning II
10
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ineffective. The RE for such a source would be zero and should
be recorded as such in the base year inventory.
Irreversible Process Changes. An irreversible process change
(in the context of this guidance) involves a process modification
or equipment substitution that completely eliminates solvent use
from the production process. Irreversible process changes thus
preclude application of RE. Irreversible changes require that
the process cannot be quickly or easily reversed. Examples of
this would be substituting a hot—melt lamination process for
solvent—based adhesives and installing powder coating equipment
to replace solvent—based coatings and equipment. In general, the
use of “exempt” solvents or compliance coatings 2 would not
constitute an irreversible process change. Although
incorporating these mater ais into the production process may
involve the installation of new equipment or the total redesign
of a production line, a c.otal elimination of the potential voc
use is required to be considered irreversible. (EPA recognizes
that industries may switch back to old equipment and solvent—
based coatings; State arid local agencies should exercise judgment
in defining irreversibility.) Sources controlling emissions by
an irreversible process change should be assigned a RE of 100
percent in the inventory because the nature of the control
technique ensures continual compliance over time.
Direct Determination is one in which emissions are calculated
directly (e.g., explicit records for each type of coating and/or
solvent used) rather than from estimates of uncontrolled
emissions and level of control. Any calculation that involves
estimates of production rates, capture efficiency, transfer
efficiency or solvent consumption rates typically does not
qualify as a direct determination. Due to the importance of
direct determination, it is discussed in more detail below.
2.1.2 Direct Determination of Emissions
As previously stated, direct determination means that no RE
adjustment is necessary when computing base year emissions. That
is, the emission estimate is not affected by a source’s
compliance or noncompliance with rules. Where an emissions
measurement is made with a high degree of certainty, RE
adjustment should not apply to that source. When reporting the RE
value for these sources, use 100 percent rather than zero or “not
applicable.” 3 The benefit of directly determining emissions is
that an accurate calculation of emissions is made without the
inherent uncertainties of compliance and control efficiency.
2 Cc 1iance coatings include waterborne, low—solvent (high solids) and powder
coat 4 hg ! . -
3 Uben reporting RE for sources where a rule applies and emissions were directly
determined, report 100 percent. This reporting convention will, clearly identify
to any inventory reviewers that RE was considered for the source.
11
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2.1.2.1 Criteria for Direct Determination of Emissions
For an emissions estimate to qualify as a direct
determination, it must meet certain criteria. First, emissions
have to be calculated from explicit source records. Second, no
emissions.factors or assumptions (e.g., for solvent Content) can
be used in the calculation. Generally, if a control device is in
place, the estimate does NOT qualify as a direct determination.
The-most common example of a direct determination of VOC
emissions is “mass balance” accounting. The data for the direct
determination must be accurate and well—documented. Each region,
state or local agency may decide what constitutes an appropriate
level of documentation for these data, consistent with EPA
guidelines stated in Section 2.1.2.4. Supporting documentation
for emissions estimates must be maintained by the State.
2.1.2.2 Example of Direct Determination
Table 2—2 shows two methods, both mass balance, that would
qualify as direct determination under the current guidelines.
Both situations imply that detailed records are available to the
source and/or the air pollution control agency.
TABLE 2-2. DIRECT DETERMINATION SCENARIOS
Process Method Co ent
Description
Bulk
Storage/
Solvent
Use
Solvent
Metering (mass
balance)
1) Requires documentation by the
source
2) Generally applies to inks,
coatings and solvents
Solvent
Use
Accounting
(mass balance)
•
1) Requires documentation by the
source (adequate paper trail
such as purchasing records)
2) Assumes 100 percent
evapo rat ion
3) Solvent content may be
determined by test or using
manufacturers’ records
To illustrate direct determination, consider a manufacturing
facility with a product coating operation achieving compliance by
using low—solvent or waterborne coatings in lieu of control
equipment. Emissions are directly determined and calculated by
the following method:
12
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Step 1 determine coating and solvent usage over
time (e.g., a typical month during the
ozone season) from detailed plant
records;
Step 2 use manufacturer’s specifications to
obtain solvent content of all coatings
used;
Step 3 for each coating used, calculate amount
of solvent used over time by multiplying
usage (gal/month) by actual solvent
content (lbs VOC/gal coat .ng), as
- supplied by the manufacturer;
Step 4 calculate the total amount of solvent
used over time by adding the amount in
each coating and the amount of raw
solvent used for cleanup and dilution
(lbs VOC/month);
Step 5 assume that all solvent used was emitted
to the atmosphere at some point within
the plant unless manifests indicate that
some amount was shipped offsite as waste
or the source can document that some
portion was incorporated into the
product; and
Step 6 calculate emissions in lbs VOC/day by
dividing total solvent emitted (lbs
VOC/month) by number of working days in
that month (days/month)
Appendix C illustrates this example in more detail.
Another example of direct determination is that estimated by
some type of continuous emission monitoring (CEM) equipment. If
used, such equipment must be capable of determining mass balance
emissions over extended periods of time, and provisions must be
made for malfunction in the CEM equipment itself.
2.1.2.3 Major Class.. of Emissions Estimation Techniques
Table 2—3 lists the major classes of emissions estimation
techniques and their potential for classification as a direct
determination. Some classes are discussed in detail, although
the salient points are contained in the table.
Stack tests/emissions tests are generally excluded as direct
determinations because they are emissions “snapshots” rather than
am accurate assessment of emissions over time. As such, stack
tests are source—specific emission factors. However, such tests
13
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TABLE 2—3. EMISSION ESTIMATION METHODS
Method AIRS’ Applicability to Direct Determination
Code
Stack Test/
Emissions Test
1
Stack or emissions tests represent a
“snapshot” of emissions at a single point in
time and are not considered direct
determinations. However, results of one or
more emissions tests, used in conjunction
with frequent tests of control device
performance and a complete analysis of
capture as well as control efficiency, may
be considered as a direct determination in
certain cases.
CEM
1
Continuous emissions monitoring (CEM) for
VOC and/or Co is theoretically possible.
CEM would preclude any RE adjustment
provided the CEM equipment is operating
properly throughout the estimation period.
Mass Balance
2
Mass balance is the technique usually
considered for direct determination,
provided adequate documentation of
throughput and (VOC) content are available.
This technique generally is used for
evaporative sources. Use of estimated
control/capture/transfer efficiencies in a
calculation of emissions disqualifies the
estimate as directly determined. The effect
of regulatory or physical controls can only
be estimated from the known inputs and
outputs from the process.
AP—42 Emission
Factors
3 or
8
AP—42 emission factors are not direct
determinations.
Other (State)
Emission Factors
5 or
9
Emission factors in general cannot be
considered direct determinations.
Engineering
Analysis/ Other
Methods
4
Determination based on engineering
principles or judgment cannot be direct
determination.
‘Aeronetric Information Retrieval Syctem
14
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may be considered as direct determinations in conjunction with
all of the following other data:
Records of control equipment function (efficiency and
upsets) throughout the period. These include daily
records of upsets and periodic (i.e., at least monthly)
determinations of actual efficiency and maintenance.
• A detailed and applicablestudy of capture efficiency.
Emissions for processes. that emit VOC are frequently
estimated at the building vent or control device outlet.
These estimates do not account for the control device
capture efficiency and emissions which “leak” from the
building. These losses can be very significant prior to
reaching the control device and must be factored into the
emissions estimate.
• Documentation that the emissions test remains applicable
to the process and operations at the source.
MaSS balance is the common term for estimating emissions
based on subtracting the known outputs of the process from the
inputs to the process. This is a well—respected method for
determining emissions of SO from combustion processes based on
sulfur inputs to the process and chemical stoichiometry. To
determine emissions for VOC, any organics incorporated in the
product plus the amount of process fugitives captured (e.g., the
amount of recycled solvent) is subtracted from the total VOC
(typically solvent) input. No control or capture efficiency is
necessary for this calculation. The efficiency of the regulatory
or physical control is solely determined on the basis of measured
process inputs and outputs. As discussed previously, this
measurement process is restricted to documented metering or
accounting of inputs and outputs.
Emission factors are not appropriate as direct determinations
of emissions because they are not specific to the particular
source. Even with the information discussed for emissions tests
on capture efficiencies and control device operation, emission
factors will not produce an estimate sufficiently reliable to the
specific source to qualify as a direct determination.
2.1.2.4 Documenting Direct Determination
The local or State air pollution control agency is ultimately
responsible for determining the adequacy of documentation and
application of directly determined emission estimates. Local and
State agencies should maintain records necessary to document
direct determinations and should be prepared to produce this
documentation upon EPA’S request. EPA is not requiring that
these records be submitted with the SIP inventory; complete
sii itta1 of this information would unnecessarily increase the
effort of the submittal process.
15
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The following information illustrates the level of
documentation required to support direct determination of surface
coating emissions:
• Solvent (VOC) content of each coating type
• Accurate measure of the amount of each coating
• Amount of thinning and cleanup solvent
• Amount of waste solvent disposal offsite
• Adequate oversight of these records by State or local
agency
Table 2—4 suggests criteria for meeting and documenting these
requirements.
2.2 OVERVIEW OF APPLICABLE APPROACHES FOR DETERMINING RE
In determining an RE value for adjusting the base—year VOC
emissions inventory, State and local agencies may elect to
(1) use an across—the—board RE presumption of 80 percent for all
sources; (2) use the questionnaire approach to determine a
category—specific RE value for both point sources and area
sources; or (3) use or design a study specific to a category in
accordance with the procedure developed by SSCD. The following
sections discuss each of these methods for determining RE.
2.3 DEFAULT VALUE APPROACH
In general, the 80 percent default RE value is used in the
absence of a local category—specific evaluation (i.e., the
questionnaire approach or the SSCD study approach) . In essence,
the 80 percent default value assumes that the ability to use
control devices and existing rules to achieve a 100 percent
compliance rate is only 80 percent effective. Therefore, the
base year emissions inventory must be adjusted by this factor to
ensure that the amount of emissions reductions necessary to
achieve the CAAA—required reductions in VOC emissions can be met.
The RE value should be app].ied.as discussed in Section 2.4,
Questionnaire Approach.
A number of surveys were conducted to determine a
representative default RE value, one of which was conducted by
OAQPS of States in the Regional Oxidant Model Northeast Transport
(ROMNET) region. This survey indicated that regulations and
controls were approximately 80 percent effective, on average, in
achieving the target emissions reductions.
Subsequent examination of the 1989 SSCD studies have allowed
OAQPS to reexamine the 80 percent default value. The results of
the 1989 SSCD RE studies conducted by States in 7 of the 10 EPA
Regions also show an average RE value of approximately 80 percent
when averaging the results obtained from three alternate methods
(including the method contained in this guidance document) used
to calculate RE for the SSCD study. Some of the RE studies
16
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TABLE 2—4. DOCU) NTING DIRECT DETERMINATION FOR
SURFACE COATING
SOLVENT (VOC) CONTENT
Document Solvent or VOC Content of Every Coating
• Periodic Testing of Actual Coatings
• Manufacturer’s Specifications for Coatings that Include
Solvents
• Material Safety Data Sheets (MSDS) with Information on Total
VOC Content
• Reflect Coatings in Use during the Inventory Period
Total VOC Emitted = VOC Content x Total Coating Consumed
COATING OR SOLVENT CONSUMPTION
Record Total Coating (or Solvent) Use Regularly
• Daily or Batch by Batch Basis
• Process by Process
• Coating by Coating
Use Purchasing Records if Necessary
Make Records Available during Inspections
Source May Submit Monthly or Quarterly Summaries
THINNING AND CLEANUP SOLVENT
Include Thinner and Cleanup Solvent Consumption
• Daily or Batch by Batch Records
• Monthly or Quarterly Summaries
SOLVENT DISPOSAL/P.ECYCLE
Give Cre t for Offsite Disposal/Treatment
• .. bmit Waste Transfer Records with Information on Amounts
Shipped
ADEQUATE OVERSIGHT
Inspect Regularly
Check Facility’s Summary Data against Daily Records during Inspection
Check Records (e.g., Daily SulTmtaries) against Records Kept “on the
Floor.”
Investigate and Resolve any Discrepancies
17
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indicated values in excess of 100 percent. These values are
inappropriate in reviewing inventory RE. Values greater than 100
percent imply that emissions for a category are less than
estimated. The causes of “over—compliance” (i.e., decreased
production) in these studies are already accounted for in the
inventory emissions estimates. Values greater than 100 percent
were set equal to 100 percent. The results varied from about 70
to 90 percent, depending on the selected calculation method.
It is difficult to estimate a particular category’s RE for a
particular area based on a small subset of studies such as the
1989 SSCD RE studies. Where other data are unavailable to
estimate category—specific RE, the 80 percent default value is
the most appropriate based on the information currently
available.
2.4Q ESTIONNAIRE APPROACH
The intent of the questionnaire approach is to determine a
category—specific RE value to adjust the baseline VOC emissions
inventory for less than 100 percent regulatory compliance in a
nonattainment area. This approach involves the use of
questionnaires designed for both point and area sources and is
based on information on file with the source and personnel
familiar with the sources included in the study (Appendices A and
B) . (Sources to be included in the process must pass a
preliminary screening test. An RE number is determined for each
category in each nonattainment area.)
2.4.1 Level of Effort
The categories representing at least 80 percent of the
emissions inventory must be surveyed with the questionnaire. The
questionnaires contain a series of generic questions covering
various factors which affect the RE determination. These factors
include the nature of the regulation, the nature of techniques
used to comply with each regulation, the performance of the
source in complying with the regulations, and the performance of
the implementing agency in enforcing the regulations. The
questionnaire is designed to be answered using only available
source file information, thus alleviating the need for source
inspections. Prior to each source evaluation, the complete
source file information is reviewed including reports of previous
visits and inspections.. Information pertaining to potential
deviations or deficiencies in State regulations must also be
reviewed prior to taking this approach. In many cases,
knowledgeable inventory staff may be able to complete the
questionnaires for a single source category in one—half day or
less.
18
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2.4.2 Procedure
The procedure involves the use of two generic questionnaires
that are based on the factors listed above and in Table 1—1. One
questionnaire is used for individual point sources (see Appendix
A) and another for area source categories (see Appendix B).
Table 2—1 listed source categories for which CTGs have been
issued and provides a good starting point for State and local
agencies to determine which questionnaire to apply.
Many States contain more than one nonattainment area, raising
the issue of whether RE should be estimated on a local or
statewide basis. In general, this procedure should be used to
determine unique RE estimates for each nonattainment area, except
in cases where statewide regulations are implemented by a single
agency throughout the State. In this case, all nonattainment
areas in the State may employ a single value. The appropriate
EPA Regional Office should be contacted for guidance if there is
any question of whether local or statewide estimates are
appropriate in a particular State.
2.4.2.1 Identifying Personnel to Perform the Evaluation
In most cases, representatives from the State or local
agency’s SIP planning or inventory group and compliance group
should oversee the RE evaluations described in this document, but
this selection may vary based on the individual agency and
personnel experience. (The person conducting each evaluation
will be hereafter referred to as the “evaluator.”) One of the
goals of incorporating RE in the base year inventory is to have
planning personnel become more aware of the extent to which
sources are complying with SIP regulations and the actual
emission reductions that have resulted. The evaluator should
enlist the id of the local inspector(s) most familiar with each
source. The role of the EPA Regional Office generally will be to
review the results of the individual evaluations and/or the final
RE estimates. In specific cases where this arrangement is not
satisfactory, •States or local agencies may negotiate with the
Regional Offices to modify the respective roles.
2.4.2.2 Preliminary Screening of Sources
Each point source chosen should be subjected to the
preliminary screening test at the beginning of the point source
questionnaire. This screening will determine the appropriateness
of evaluating RE by mea s of the questionnaire procedure for the
chosen sources. The questionnaire should NOT be used to
determine RE for the chosen source if any of the following is
true:
• the source is not regulated 4
4 urrregulated sources which are controlled should have equipment downtime, actual’
operating efficiency and process upsets factored into the emissions estimate,
although these sources are not technically subject to RE.
19
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• the source achieves emissions reduction by means of an
irreversible process change that completely eliminates
vOC from the process
• emissions from the source are calculated by means of a
direct determination
Sources for which any of the above is true should be excluded
from the questionnaire evaluation and are exempt from the
adjustment of emissions for RE. These exclusions were discussed
in detail in Section 2.1.1.
2.4.2.3 Choosing Sources to Evaluate
State and local agencies choosing to develop category—
specific RE estimates may (1) use the questionnaire procedure for
ALL regulated stationary source categories in their inventories
or (2) use the questionnaire for 80 percent of their emissions
inventory and a combination of the default value or SSCD study
for the remainder of the emissions. If a State or local agency
wishes to use the questionnaire approach for a subset of emission
categories, the following conditions must be met. At least
80 percent of the total pollutant—specific emissions (e.g., VOC)
must be covered by questionnaires and all categories representing
5 percent or greater of the pollutant—specific emissions must use
the questionnaire. Both conditions (80 percent coverage of total
point source pollutant emissions and every category representing
5 percent or more of the total point source pollutant emissions)
must be met for the questionnaire approach.
The most accurate way to estimate RE for point source
categories would be to evaluate all sources in each category for
which a regulation exists and average the results. Since this
would place an unreasonable burden on resources and time for the
agency performing the evaluation, agencies should evaluate RE
sources in each category for which a regulation exists according
to the following guidance. If there are ten or fewer sources in
a category, all sources shoula be included. If there are more
than ten, choose ten at random, complete the questionnaires and
determine if the sample size is adequate or needs to be expanded.
The point sources should be chosen randomly to avoid biasing the
results. To assure statistical accuracy, use the procedure
outlined in Appendix D for determining the sample size. (Area
sources as defined by the emission inventory will be evaluated by
category.)
One possible method for choosing random point sources is for
the evaluator to obtain a list of all sources in the local
inventory, grouped by source category. These sources should
include the numerical identification codes and any other details
necessary to obtain the appropriate file information. The
evaluator might then enlist the aid of another employee who is
unfamiliar with both the sources and the numerical coding system
of sources in the air program. This employee would be presented
20
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with a list of only the numerical identification codes, not the
company names, of all sources in the inventory grouped by source
category, and asked to randomly choose a statistically valid
sample from the necessary sources in each point source category
for which a regulation exists. Alternately, there are many
popular software packages (e.g., Lotus®) which are able to
generate random numbers with a list of sources.
2.4.2.4 Sources with Control Efficiencies Greater Than 95 Percent
Source emissions may be artificially inflated when the 80
percent default value for RE is applied to sources with stated
control efficiencies greater than 95 percent. This is of
particular concern when dispersion modeling is used. To ensure
that emissions estimates are as accurate as possible, EPA has
developed three different :ptions to accommodate this situation.
Before selecting one of the following options, States should
attempt to verify the capture and control
efficiencies of these highly—controlled sources.
Option I:
1. Identify sources with stated control efficiencies greater
than 95 percent.
2. For these sources, apply the Questionnaire to determine the
actual RE for the source. If the Questionnaires cannot be
completed by the November 15, 1992 deadline, an adjustment
can be made afterwards. 5 In these areas, Option II must be
used for the November 15, 1992 inventory submittal.
Option II:
1. Apply the 80 percent default value for RE to the sources with
control efficiencies greater than 95 percent in the base—year
inventory.
Option III:
1. Identify sources with stated control efficiencies greater
than 95 percent.
2. For the 1990 base—year inventory, use option I or II.
3. After submitting the 1990 base—year inventory, develop an
alternative questionnaire to determine RE for these highly—
controlled sources.
A prefer3 that adjustments be made prior to the public hearing on the
i utOi7, but no later than any other hearing held on the rate of progress plan
a attainment demonstration (see Memorandum of September 29 1992, Public
Hearing Requirements for 1990 Base—Year Emission Inventories for Ozone and Co
Nonattainment Areas, from John Calcagni and Bill Laxton to Regional Air Division
Directors)
21
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4. Obtain EPA approval for the RE questionnaire.
5. Apply the alternative RE questionnaire to the identified
sources.
6. Adjust the base—year emission inventory after the new RE
values have been calculated for these sources, 5
2.4.2.5 Answering the Questionnaires
The evaluator should complete one point source questionnaire
for each selected point source in the sample that passes the
preliminary screening test and one area source questionnaire for
each area source category. The questionnaires are designed to be
answered using available file information only. No dedicated
source inspections are required. The complete file information
on a particular source, including reports of previous visits and
inspections, should be obtained by the evaluator prior to
answering the questionnaire. To answer the questionnaires, the
evaluator should confer with the State or local compliance
inspector most familiar with the source or source category being
evaluated. If an answer cannot be ascertained, the space marked
“unsure” should be indicated on the questionnaire.
In addition, the evaluator should obtain any information
relating to potential deviations or deficiencies in the State or
local regulations. The most helpful information would be in the
SIP—call follow—up letter sent to the State Air Program Director
from the corresponding EPA Regional Air Division Director. This
letter delineates specific deficiencies that EPA required to be
corrected in response to the SIP—calls for nonattainment areas in
that State. Another source of information is the document,
Issues Relating to VOC Regulations, Cutpoints, Deficiencies, and
Deviations, issued on May 25, 1988 by AQMD. The evaluator should
confer with the EPA Regional Office to ascertain the most current
and applicable information on regulation deficiencies.
2.4.2.6 Determination of Rule Effectiveness Values
The answers to the q iestions on the questionnaires each have
a point value associated with them. After answering each
question with the most appropriate response, the evaluator should
sum the point values of the answers for each section and record
the sub—totals and/or totals in the space provided on the last
page. Section 3 describes how to apply these RE values in the
emission inventory.
Determination of the RE value for point source categories has
been revised since the Post—87 RE guideline to make the category
value more representative. Formerly, a simple arithmetic average
of the questionnaire totals produced the RE value to be used for
all sources in that category (i.e., every completed questionnaire
received equal weight). The former procedure has been replaced
by a revised, emissions—weighted average to accommodate the true
effect on category emissions. By using an emissions—weighted
22
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average, the questionnaire RE value better estimates the effects
of higher (or lower) RE at large emissions sources on the overall
category emissions. Where large emissions sources have better
compliance (RE closer to 100 percent) than small emissions
sources, -emissions for the category will more accurately reflect
the effect of the compliance level of the larger facilities.
The questionnaire results should be weighted by uncontrolled
emissions. This weighting system increases the overall influence
of the estimated RE at larger magnitude emitters on the category
emissions. The questionnaire results from the surveyed
facilities should be treated in the following manner:
Uncontrolled Emissions
cae•qOry s ]
- Euncontrolled Emissions
where: n is the number of facilities with completed
questionnaires
Table 2—5 illustrates the use of this equation and the
calculation of the RE value. The State or local agency may be
asked by the Regional Office to support RE values calculated from
the questionnaires. The State or local agency should be prepared
to document the procedures and information used to complete the
questionnaires.
2.5 SSCD STUDY APPROACH
2.5.1 Purpose of the Study
The purpose of the SSCD study is to provide the States, local
agencies and EPA with criteria and procedures for conducting an
- RE study or evaluating the degree of source compliance with
existing rules. •In the context of the SSCD. study, RE means the
extent to which a rule actually achieves (or has the capability
of achieving) desired emission reductions, both in terms of the
reductions projected for that rule, and the reductions that would
ordinarily be achieved if the rule were properly implemented.
Like the questionnaire approach, the SSCD study only applies to
the geographic area in which it is conducted. In contrast to the
generic questionnaire approach for both point and area sources,
each SSCD study is individually designed and applied to a single
point source category.
The principal goals of the SSCD study procedure are: (1) to
determine the effectiveness of rules for a specific source
category in a specific nonattainment area according to the
quantitative criteria set forth in this protocol; and (2) to
23
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TABLE 2-5. EXAMPLE OF WEIGHTED RE VALUE USING QUESTIONNAIRE
Facility
RE from
Questionnaire
Uncontrolled
Emissions
Weight
Factor’
Weighted
R.
RE Value
for
facility 3
A -
B
100%
60%
500
100
0.42
0.08
0.42
0.05
100%
60%
C
80%
75
0.06
0.05
80%
D
80%
200
0.17
0.13
80%
E
85%
50
0.04
0.04
85%
F
90%
30
0.03
0.02
90%
G
H
65%
75%
120
35
0.10
0.03
0.07
0.02
65%
75%
I
95%
25
0.02
0.02
95%
J
80%
60
0.05
0.04
80%
TOTAL
CATEGORY
RE VALUE 4
1,
195
1.00
0.86
86%
Weight factor equals facility’s uncontrolled emissions over total uncontrolled.
2 Weighted RE equals facility’s RE from questionnaire times weight factor.
Use the RE value from the facility—specific questionnaire response for that
facility.
All facilities not included in the survey sample are assigned the category
value.
identify specific implementation problems which need to be
addressed by the State, local and EPA compliance and enforcement
staff in order to achieve greater RE in the future.
2.5.2 Siiin ary of the SSCD Study Approach Procedures
The SSCD study prescribes inspections, emissions tests and
agency audits to compare actual measured emissions to “allowable”
emissions under the existing rules(s). The difference represents
the degree of compliance with the rules (i.e., the RE in
achieving emissions reductions). The study requires that the
source sample size from a single source category be determined
statistically, with considerations given to the allocation of
personnel for inspections. -
The SSCD study approach consists of a two—phase study
including (1) an office investigation and (2) a field inspection
at the source. Each study initiated by a State or local agency
24
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must receive approval from the EPA Regional Office and
Headquarters. In general, the field inspection involves
determining the compliance status of a representative number of
sources in a nonattainment area through the calculation of
emissions and the determination of the percent effectiveness of
current regulations. Sources included in the study are inspected
unannounced. The elements of the field inspection include the
following: (1) rule application evaluation, (2) State inspection
procedures evaluation, (3) compliance determinations,
(4) emissions quantification, (5) quality assurance, and
(6) inventory evaluation. An inspection checklist is developed
and used for each source. The checklist is comprised of three
sections which are (1) inventory verification, (2) regulatory
applicability, and (3) inspections procedures evaluation. All
applicable regulations and policies pertaining to the sources
under study are identified and the compliance status of the
sources with SIP rules is determined, differentiating between
procedural and emission requirements. The office investigation
phase provides a further analysis of program implementation
elements not susceptible to a comprehensive evaluation during a
field inspection.
The study identifies problems which can be corrected,
processes corrective action options, and comments on advantages
and disadvantages of each option. Within one year following the
study, a follow—up audit is conducted to determine whether
corrective actions were implemented. Finally, the SSCD study
includes an inventory demonstration for the selected source
category which includes the following elements: (1) field
investigation follow—ups if inventory discrepancies evolve; and
(2) a search for potentially omitted sources including a survey
of source exemption applicability and a ground survey to locate
unregistered sources.
2.5.3 Calculating RE from an SSCD Study
The SSCD study approach may be applied only to a single
source category for which a given study is designed. The result
of each study is a category—specific RE estimate for a particular
geographic area and category. States and local agencies may need
to determine if previously existing SSCD study results remain
valid or if the study is outdated due to industry or regulatory
changes. Only studies deemed valid for the inventory period may
be used. To apply the result for SIP purposes, the calculation
must reflect this context.
The percentage effec:iveness calculations will be based on a
comparison of actual emissions to the allowable emissions for
sources included in the study. These emissions must be documented
as part. of the field investigation phase of the study, and the
calculations must be based on emissions testing, sampling and
usage data identified for each source during the investigation.
25
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Percentage effectiveness for base year inventory applications
should be Calculated according to the procedure listed below.
Compute separately the total allowable and actual emissions for
all sources on the day of the inspection or source test. The
following-equation should be used:
RE Inventory Method (for SIP inventory purposes)
Baseline - Actual
%RE xlOO
Baseline - Allowable
If the baseline cannot be ceterrnined, the following equation, which
calculates the baseline f:crn allowable emissions and the control
efficiency, is used:
Allowable
_______________________ - Actual
1 - Control Efficiency 6 100
Allowable
______________________ - Allowable
1 - Control Efficiency
where:
Baseline = base year inventory (before control)
Actual = emissions determined during course of study
from mass balance, stack testing, CAA
Section 114 responses, inspections and/or
production records review
Allowable = emissions determined from SIP requirements
Control Efficiency = control efficiency defined in the CTG
• This method considers what emission reductions were
actually achieved and evaluates performance in terms of the
magnitude of excess emissions.
• This method should be applied in any study where the
results will be used to modify the 80 percent rule
effectiveness assumption.
Users requiring more information should consult SSCD guidance
on the RE approach.
‘Control Efficiency calculations are shown in Section 3.2.1.
26
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2.6 USING RESULTS FROM SSCD STUDIES, QUESTIONNAIRES AND THE
DEFAULT
The procedural approaches to determine RE using the
questionnaire and the SSCD study are vastly different.
Figure 2-1 shows a suir rtary comparison of the questionnaire
approach (Appendices A and B) versus the SSCD study approach.
The shaded boxes represent common steps.
The State or local age icy may use the questionnaire approach
or may apply the default V iUC across the entire inventory.
Where an SSCD study resul: sed Cr all source categories are
not covered by the quest: : :res, a cc bination of methods must
be used to complete the —.:zry. Table 2-6 lists the
combinations available :: - S: e and local agenoies when an
SSCD study is used or — - ::cnnaire approach does not cover
all categories.
27
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flelec Sources t Rsedom
(Statistically Significant
Sa le)
I Office Investigation
Evaluate Current Rule
)
Application
I
I Field Inspections and Testing I
. —,w —w.—-—.- —
.
L
I
Report
I
•
I
I
Corrective Action
Plan
I
• Rule Effectiveness Value for
One Category
• Improved Emissions Estimate by
Source
• Identification of
Noncompliance Causes
• Corrective Action Plan
Figure 2-1. Comparison of the questionnair. and SSCD study.
28
QUESTIONNAIRE
IdentLfy Per3Oflflel to Conduct
‘Evaluation
Select 5 Sources a andoin for
(StatisticaUy Significant
Sa iple} Point and Area Source
Categories
SSCD STUDY
Select One Point Source Category
I
T1
Perform Screening for Applicable
Sources
(Repeat Step (2) as Necessary)
S 5 5
I4entify Persoo.nél to Conduct
EvaXustiori
I
Complete Questionnaire
Develop Appropriate Protocol/
Receive Approval from SSCD or
Renion
Score Evaluation
Determine R for Each Category
STEP
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
RESULT
&
I Inventory Accuracy Demonstration I
&
I
‘I
Rule Effectiveness Value to
Apply to Base Year Emissions
for Each Category
-------
TABLE 2—6. COMBINING SSCD STUDY AND QUESTIONNAIRE
APPROACHES
RE Value Based on... Approach for Other Categories
SSCD Study
Other categories may be analyzed based
on questionnaires or the 80% default
value may be applied.
Questionnaires
Remaining categories may use the 80%
default value provided the minimum
criteria for applying questionnaire
defined in Section 2.4.2.3 are met.
29
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SECTION 3
APPLICATION OF RULE EFFECTIVENESS IN BASE YEAR INVENTORIES
3. 1INTRODUCTION
This section provides guidance on the application of RE to
emissions inventories and presents the emissions calculation
procedure. RE must be applied to base year SIP inventories for
ozone precursors and Ca, specifically to sources of VOC, NO,, and
CO. Previous SIP inventories considered only VOC and the
majority of current appl c : ns n.ll still be for VOC sources.
(Since few emission reguI ::r s f r r cr-mobile sources of NO and
Co existed in 1990, RE is ::rer.rJy no an issue for these
pollutants for base year - 1:iverLtories. If these pollutants
are regulated in the fuc...: , P.E will need to be applied in
subsequent inventories.)
RE factors are to be ;plied for the purpose of more
accurately representing actual emissions. While local RE values
may be determined on a source category basis, these same factors
should be applied in the :nventory on a source-by-source basis.
Applying RE factors to : d vidual sources will increase the
emissions indicated for most sources; therefore, it is important
for air pollution contrc! specialists to understand that the RE
estimates determined by the above procedure are to be used for
emission inventory purposes only.
3.2 CALCULATING RULE-AFFECTED EMISSIONS
Determination of rule-affected emissions requires three
inventory data elements: (1) the RE value (percent); (2) overall
control efficiency; and (3) estimated uncontrolled emissions.
Before applying RE, the relevant sources must be identified as
described in Section 2. Once an RE percentage has been
determined for each source category and a source has been
determined to be subject to RE, the emissions from that point or
area source are adjusted. If the questionnaire approach was
used, apply the individual questionnaire RE scored for sources
surveyed by the questionnaire; apply the calculated category RE
value to the sources in the category which were not surveyed.
The calculation is done source by source at the emissions
calculation step (typically the segment or process level in the
Aerornetric Information Retrieval System (AIRS) for point sources
and category by category for area sources.
The following equation is used to calculate rule-affected
emissions:
RE nissions Uncontrolled Emissions x (1 - ( Control Efficiency x RE))
30
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where RE arid control efficiency are expressed as fractions. The
equatlon clearly demonstrates that RE accounts for the
effectiveness of the control.
Section 2 discussed the derivation of the RE value. Control
efficiency and uncontrolled emissions are typical emissions
inventory elements. Uncontrolled emissions may have to be
backcalculated from the estimated controlled emissions. For
example, source tests may account for the control in place.
Control efficiency is a required SIP data element for control
devices, but control efficiency for RE includes both physical and
regulatory controls.
3.2.1 Control Efficiency
Regulatory controls a e emissions limits implemented through
either regulatory or physical means. A solely regulatory control
is typically an emission rate limitation unrelated to a control
device. For example, a:’. :rdustrial coating operation may be
limited to using a coat.irig of no more than 2.0 lbs VOC per gallon
coating. The control efficiency is based on the difference
between the total solvent used prior to the regulation and post-
regulation.
A physical control i.s a control device such as an incinerator
or carbon adsorber used to reduce emissions from a process.
Control efficiency may be reported on the basis of manufacturer’s
specifications or emiss.ons testing. To be reliable, capture
efficiency, actual operating conditions and process and/or device
upsets must be included when estimating emissions. These
variables may be factored into a single average control
efficiency or emissions may be estimated for each different
operational mode (refer to emission i nventory guidance)
Application of the RE value is straightforward where the
control is a physical device (e.g., a carbon adsorber) with an
estimated efficiency (e.g., 95 percent) . When the control is due
to a rule implementation (e.g., coatings restricted to no more
than 3 lbs VOC per gallon), it is more difficult to determine the
Ucontrol efficiency” of that rule. However, there is no
distinction between regulatozy and physical controls for the
purpose of applying RE.
EPA recognizes that a control efficiency inherent in a
regulation (e.g., an emission limit such as lbs VOC per gallon
coating) may be difficult to determine. In these cases the best
option is to determine emissions before and after a regulation
was adopted from existing source records. This may be impossible
if a source was never in operation or inventoried prior to rule
adoption or if process changes have made such comparisons
n eamingiess. A second option is to use the control efficiency
esti te used in the development of the CTG or State/local rule.
3].
-------
Questions have been raised regarding the control provided by
rules specifying types of storage tanks for petroleum product
storage. The best way to calculate control efficiencies for
storage tanks is to calculate emissions per unit product based on
the AP-42 equations before (e.g., a fixed-roof tank) and after
(e.g., anexternal floating roof tank) rule adoption. This
course may be both resource and time intensive. Representative
control efficiencies for gasolines and distillate oil from TableS
3-1 may be used instead of detailed, tank-by-tank calculations.
These values have been der ied based on a wide variety of tank
sizes and throughputs which :nd cate that emissions per unit
product from a tank type pr ic il1y dependent on the vapor
pressure of the contents, si:e.
TABLE 3-1. DEFAULT PETROLEUM STOR.hGE TANK
CONTROL EFFICIENCIES
Materia
Stored
1
Before Rule
Condition
After Rule
Condition
Default
Control
Efficiency
Gasoline RVP7
to
F::.: d Roof
External
95%
RVP1O
Floating Roof
Distillate No.
2
F:.:.?1 Roof
External
Floating Roof
91%
Gasoline RVP7
to
F:xeci Roof
Internal
98%
RVP1O
Floating Roof
Distillate No.
2
Fi:.:ed Roof
Internal
Floating Roof
92%
Gasoline RVP7
to
External
Internal
60%
RVP 1O
Floating Roof
Floating Roof
Distillate No.
2
External
Floating Roof
Internal
Float .ng Roof
20%
Where a regulatory or inherent control efficiency must be
determined to apply RE, the inventory preparer should consider
and use the procedures listed below to make this determination.
These procedures are listed in order of preference and
reliability:
1) Make a “before and after regulation” determination based
on historical inventory records for each affected source
or the category.
2) If (1) is not possible, refer to the local SIP -
development dpcumentation that supports the planned or
expected control level anticipated from the
32
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regulations(s) applicable to the category. Use this
control level as the control efficiency for sources
covered by the rule(s)
3) As a final resort, refer to Appendix E to estimate the
expected control effectiveness for CTG categories. This
listing has been developed from CTG summaries and is only
to be used to approximate control efficiencies for RE
application where no other data are available. This
listing presents ranges in some cases; use the lower end
of the range unless other justification can be
documented. Where the upper end of the range is 100
percent, this value car r’.ot be used except where direct
determination or irreversible process change can be
documented. EPA has not determined the validity or
reliability of these control efficiencies for this
purpose.
3.2.2 AIRS Coding
The AIRS/Facility Subsystem (AFS) and the AIRS Area and
Mobile Source CAMS) are capable of storing RE values and applying
RE to the point and area source inventories, respectively. The
procedure involves setting the “SIP Rule in Place” field to “Y,”
113,U uMul or “R.” These codes designate Yes, BACT, MACT and RACT,
respectively. (Note: While the field is called USIP Rule in
Place,” this refers to any rule that is in place in the inventory
area that is expected to reduce emissions, regardless of whether
or not the rule is part of the SIP.] Any source with these codes
and a nonzero control efficiency will be expected to have an RE
value. (Remember that directly determined emissions sources have
a 100 percent RE.) For emissions calculated using an emission
factor, process or throughput rate, and control efficiency, AIRS
can automatically calculate the RE emissions adjustment. Outside
the AIRS system, these calculations will have to be performed as
previously described.
When coding AIRS or other inventory transactions, all
regulated sources where the regulation has an impact on the
estimated emissions should have an RE entry in the estimated
emissions. State and local agencies should code RE values
according to the type of sources (Table 3-2)
• For sources making no attempt at compliance, RE should be 0
percent
• Directly determined or irreversible processes that eliminate
solvent (VOC) emissions should be coded as 100 percent
All other regulated sources should be coded with a value
between 0 and 100 percent -
33
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TABLE 3-2. CODING RE IN ELECTRONIC INVENTORY SUBMITTALS
RE Determination Coded RE Value
Uncontrblled Source 0%
Irreversible Process 100%
Change
Direct Determination 100%
Questionnaire !eighted score from questionnaire
SSCD Study r dy results using SIP inventory
:c ilati .. (%)
Default 80%
3.3 DOCUMENTING RULE EFFECTIVENESS FOR THE SIP SUBMITTAL
Rule effectiveness must be documented in the SIP inventory
submittal, consistent with OAQPS Emissions Inventory
‘3 ,. . . 4
Requi.rements,’ the QL’a_:ty Review Guidelines,, and the
individual Inventory P:eparation Plans (IPPs). These
requirements include a i:scussion of how rule effectiveness ,was
incorporated into the :nventory. States should clearly annotate
summary missions tables as either adjusted or unadjusted for
rule effectiveness. Emission estimates will be reviewed to
ensure appropriate application of Rule Effectiveness in the base
year inventories. Any deviations from OAQPS guidance on RE
should be discussed in the submittal.
3.4 REFERENCES
1. Memorandum from David Winkler and David Zimmerman, TRC
Environmental Corporation, to Gerri Pomerantz, Office of Air
Quality Planning and Standards, U.S. Environmental Protection
Agency, scontrol Effectiveness: Petroleum Product Storage
Tanks. August 13, 1992.
2. U.S. Environmental Protection Agency, Emission Inventory
Requirements for Ozone State Implementation Plans, EPA-450/4-
91-010, Office of Air Quality Planning and Standards,
Research Triangle Park, NC, March 1991.
3. U.S. Environmental Protection Agency, Ernission Inventory
Requirements for Carbon Monoxide State Implementation Plans,
EPA-450/4-91-011, Office of Air Quality Planning and
Standards, Research Triangle Park, NC, March 1991.
34
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4. U.S. Environmental Protection Agency, Quality Review
Guidelines for 1990 Base Year Emission Inventories, EPA-
454/R-92-007, Office of Air Quality Planning and Standards,
Research Triangle Park, NC, August 1992.
35
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SECTION 4
EXMWLE CALCUL T IONS
The following examples illustrate how to include RE in the
emissions calculations for several types of facilities. Most of
these examples are presented on a daily emissions basis.
TypIcally, emissions are first calculated on an annual basis. RE
actually applies to both annual and daily estimates; EPA emission
inventory guidance discusses the calculation of daily estimates
from annual estimates.
4.1 POINT SOØRCES
4.1.1 Bulk Terminals (Loading Racks)
,Calculation based on a device control efficiency and RE
questionnaire results.
A petroleum products bulk terminal distributes motor gasoline
and distillate fuels (heating oils, etc.) . In 1990, the facility
distributed 110,000,000 gallons of gasoline and 54,000,000
gallons of distillate fuels. The loading racks used to transfer -
the fuels use refrigerated vapor recovery units (RVUs) to control
emissions. The control efficiency for RVUs is greater than 90
percent as determined by an approved EPA method. The equipment
is checked annually unless obvious problems require earlier
inspections, and records of all repairs are maintained for agency
review. The facility is inspected triennially, with the most
recent inspection occurring 3 years ago. Emission factors for
gasoline and distillate fuel loading loss have been determined to
be 8.5 and 0.02 pounds VOC per thousand gallons, respectively. A
questionnaire was completed for this facility and a RE of 78
percent was estimated for this facility (overall 82 percent for
the category). What emissions should be reported for this
facility?
Answer: Compute the loading losses for gasoline and distillate.
Emissions are based on emission factors and therefore
must include RE. Use the facility—specific RE rather
than the category estimate.
Base Data for Loading Losses
Gasoline Distillate
Throughput
(gallons)
110,000,000
54,000,000
Emission Factor
8.5 lbs VOC/10 3 gal
0.02 lbs VOC/10 3 gal
Control Efficiency
(AP-42)
>90%
>90%
Rule Effectiveness
78%
78%
36
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Emissions Emission Factor Activity Level
x (1 - (Control Efficiency x RE))
A. Gasoline Loading Losses
Emissions 8.5 lbs VOC/10 3 gal x 110,000,000 gal x (1. — (0.90 x 0.78))
278,630 lbs VOC
B. Distillate Fuel Loading Losses
Emissions 0.02 lbs VOC/10 3 gal x 54,000,000 gal x (1 — (0.90 x 0.78))
321.8 lb VOC
,C. Total Emissions (from Loading Losses)
Total Emissions = Gasoline Emissions + Distillate Emissions
= 278,630 + 321.8 lb VOC
= 278, 952 lbs VOC
139 tons VOC
4.1.2 Beverage Can Coating
Calculation based on an effective control efficiency in
the absence of a Control device, solids equivalency
determination and RE questionnaire results.
A beverage can coater has been required to use high—solids
coatings for its interior can coating. The plant personnel
follow a weekly maintenance routine. The facility was last
inspected in June for compliance evaluation, with the last
previous inspection occurring three years ago. The following
coating and process characteristics have been determined.
The coater previously used 50 gallonä per day of interior can
CQating. The coating had a density of 9 pounds per gallon. The
coating was 60 percent solvent (by weight); the solvent was 100
percent 1OC with a density of 8 pounds per gallon. The coater is
required to use a new coating that does not exceed 3 pounds of
VOC per gallon of coating. The manufacturer reports a density of
10 pounds of coating per gallon of reformulated coating. No
change in production volume of coated cans has occurred, but the
coating consumption (in gallons per day) is not reported in this
year’s inventory. This facility was not included among the
questionnaires, but the category average RE is 84 percent. What
emissions should be reported in the inventory?
Answer: In most categories, control efficiencies and RE are
applied to uncontrolled plant emissions resulting in RE
emissions. Since the end result of coating is the
application of the solid fraction of the coating, control
effic encies for coatings are calculated as the reduction
37
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in emissions related to the coating solids only. Thus,
the first step in estimating the control efficiency for
this example is to estimate VOC emissions per volume of
solids.
Old CoatinQ
Solvent Weight Fraction
Solvent Volume Fraction — Coating Density x
Solvent Density
( 9 lbs of coating/gal coating) x (0.60 lbs solvent/lbs coating )
8 lbs solvent/gal coating
67.5%
Solids Required Coating Consumption x (1 - Solvent Volume Fraction)
(50 gal coating/day) x (1 — 0.675)
= 16.25 gal solids/day
Emissions • Coating Consumption x Solvent Volume Fraction x Solvent Density
x Solvent VOC Fraction
50 gal coating/day x 0.675 gal solvent/gal coating x 8 lbs solvent/gal solvent
x 1.00 lbs VOC/lbs solvent
270 lbs VOC/day
VOC Emissions
Emissions per Volume Solid — _______________
Solids Required
— 270 lbs VOC/day
16.25 gal Solids/day
16.6 lbs VOC/ gal Solids
New Coating
VOC Content of Coating
Solvent Volume Content
Solvent Density
3 lbs VOCI gal Coating
8 lbs VOC/ gal Solvent
— 0.375 gal Solvent/gal Coating
5 37.5%
38
-------
Solids Volume Content — 1 - Solvent Content of Coating
= 1 — 0.375
= 0.625 gal Solids/gal Coating
= 62.5%
Solids Required
Coating Required
Solids Volume Content
= 16.25 gal Solids/day
0.625 gal Solids/gal Coating
= 26.0 gal Coating/day
Emissions = Coating i equ red Solvent (VOC) Content of doating
= 26.0 gal Coating/day 3 lbs VOC/gal Coating
= 78.0 lbs VOC/day
• • Emissions
Emissions per Volume Solids = ______________
Required Solids
- 78.0 lbs VOCI day
• 16.25 gal Solids/day
-4.80 lbs VOC/ gal Solids
Now that the emissions rates per gallon of solids have been
determined, the control efficiency and emissions may be
determined.
Controlled (New Coating) Emissions per Volume of Solids
Control Efficiency • (1 - ____________________________________________________
Uncontrolled (Old Coating) Emissions per Volume of Solids
— (1 — 4.80 lbs VOCI gal Solids )
16.6 lbs VOC/ gal Solids
— 71.1%
Emissions — Solids Required x Uncontrolled VOC/gal Solids x
(1 - (Control Efficiency x RE))
• 16.25 gal Solids/day x 16.6 lbs VOCI gal Solids x (1— (0.711 x O.a4))
— 109 lbs VOCI day
(This is an illustrative case. In an actual
inventory, emissions from the exterior coating
would alsobe calculated.)
39
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4.1.3 Paper Coating Facility
Calculation based on direct determination of emissions.
A paper COater uses only coatings specified by the
manufacturer to contain 2.9 pounds VOC per gallons, less water,
to comply with the RACT limit. Coating usage at the plant is
documented to be 100 gallons, less water, per day and no
additional solvents are used. This information was confirmed
during the annual inspection. The RE for this source category
has been determined to be 70 percent based on the PACT reduction
calculated for the category. What emissions should be reported
in the inventory?
Answer: Emissions from this plant can be calculated by means of a
direct determination, because the solvent concentration
is determined based on the manufacturer’s specification
and the coating use is documented daily, thus RE does not
need to be applied.
Emissions VOC content of coacing x Cod cing usage
— 2.9 lbs VOCI gal coating less water x 100 gal coating less wacer/ day
• 290 lbs VOC/daj
4.1.4 Metal Furniture Coating
Calculation based on transfer and control efficiencies
and the default RE value. -
A large metal furniture manufacturer applied 326 gallons of
coating solids on its furniture each day(i.e., it actually
sprays more. but only 326 gallons of solids are actually
deposited the products) . The coating it uses contains 35
percent by volume solids (65 percent VOC). The solvent used
weighs 7.33 pounds per gallon. The facility uses high—volume,
low—pressure (HVLP) spray equipment to achieve an 85 percent
transfer efficiency (TE). The facility has also installed PACT
to achieve an estimated 82 percent emissions reduction. The
default RE has been applied to this source category (80 percent).
What emissions should be reported in the inventory?
Answer: Uncontrolled emissions should be determined by
calculating the amount of coating solids applied and the
amount of coating applied. Controlled emissions ‘are
based on the PACT emissions reduction and the default RE.
40
-------
326 gal solids/day
Total solids sprayed — 0 85 TE • 384 gal solids! day
gal solids/day 384 gal solids/day
Total coating applied — _______________ _________________________
% solids 0.35 gal solids/gal coating
= 1,096 gal coating/day
gal coatIng lbs VOC
Uncontrolled Enussiors x % solvent x
day gal VOC
Uncontrolled Emissions (1, 96 gal coating/day) (0.65) (7.33 lbs VOC/ga.Z VOC)
= 5,227 lbs VOC/day
Emissions — Uncontrolled Emissions x (1 - (Control Efficiency x RE))
lbs VOC
= 5,227 x (1 — (0.82) (0.80))
oay
lbs VOC
1,798
oay
4.1.5 Automobile Assembly Plant
Calculation based on a device control efficiency, and
solvent—use recordkeeping and RE questionnaire results.
A.n assembly plant that coats automobile parts uses 150
gallons per day of coatings containing 5.5 pounds VOC per gallon.
An additional 10 gallons of solvent, with a density of 7.1 pounds
VOC per gallon, is used for cleanup each day. Emissions are
controlled by a carbon adsorber that demonstrated a 90 percent
capture- and control efficiency during a recent test. The plant
keeps substantial records of coating and solvent usage, but no
data on control device operation and/or maintenance (0GM). The
RE for this source category has been determined to be 75 percent
based on questionnaire responses. What emissions should be
reported in the inventory?
Answer: It may appear that emis ions can be calculated by means
of a direct determination due to the good coating and
solvent records at the source. However, the presence of
41
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a control device precludes direct determination of
emissions. Therefore, RE needs to be included in the
emissions calculation.
Uncontrolled Emissions (150 gal Coating/day x 5.5 lbs VOCI gal Coating)
(10 gal Solvent/day x 7.1 lbs VOC/ gal Solvent)
825 lbs VOC/day • 71 lbs VOC/day
896 lbs VOC/day
Emissions Uncontrolle i iss.ions x (1 - (Control Efficiency x RE))
896 lbs VOCf ay x (1 — (0.90) (0.75))
291 lbs VOCI day
4.1.6 Large Appliance Coating
Calculation based on an irreversible process change and
direct determination of emissions.
An appliance manufacturer uses 1,200 pounds of a powder
coating per day. The coating is applied with electrostatic spray
equipment achieving a transfer efficiency of 95 percent. The
company also uses 10 gallons of solvent with a density of
7.1 pounds VOC per gallon solvent for daily cleanup operations.
The plant keeps detailed records of coating and solvent use. The
RE for this source category has been determined to be 75 percent..
What emissions should be reported in the inventory?
Answer: Powder coating is an irreversible process charge, but the
cleanup solvent emissions must be calculated. Since
there are no controls for the cleanup solvent, but
adequate records are kept, a direct determination of
emissions can be made:
Emissions (7.1 lbs VOCI gal x 10 gal/day)
71 lbs VOC/day
7 powder coating lay not always ‘be an irreversible change; the state or local
agency should make this determination.
42
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4.1.7 Large Petroleum Dry Cleaner
Calculation based on the expected rule control
efficiency, reported controlled emission and the default
RE value.
A large petroleum dry cleaner has an estimated controlled
emission rate of 200 tons of VOC per year. The RACT control
level is 80 percent based on analysis of the rule for the
nonattainment area. The plant is in operation 310 days per year
All inventory categories have been assigned the 80 percent
default RE value. What emissions should be reported in the
inventory?
Answer: Emissions should be calculated as follows:
Controlled Emissions
Uncontrolled Emissions
(1-Control Efficiency)
200 tons VOCIyear
(1—0.8)
= 1,000 tons VOC/year
Daily Emissions — Unconcrolled emissions x (1 — (Control Efficiency x RE))
— 1,000 tons VOC/yrx2,000 lbs/ton (1 — (0.80) (0.80))
310 days/yr
2,322 lbs VOC/day
4.1.8 Graphic Arts
Calculation based on multiple sources at one facility,
with and without controls.
A printing manufacturer uses two gravure lines at a given
facility. The first gravure line (line 1) was uncontrolled in
1990 and did not comply with SIP rules at that time; the second
gravure line was controlled by a fume incinerator meeting the
State SIP rule. (Line 1 was subsequently upgraded in 1991 to
include fume incineration). Plant personnel are required to
complete a formal training program on operation and maintenance
and follow maintenance guidelines daily. The facility was found
out of compliance during the past year due to incineration
failure but was back in compliance within 72 hours. A violation
notice was placed into the State Agency files. The facility is
inspected annually. The device control efficiency for fume
incineration was determined to be 95 percent during the previous
compliance test. Following a survey using the questionnaire, RE
for graphic arts was calculated to be 85 percent.
43
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For line process, 25,000 pounds of ink (12 percent voc by
weight) were used. Other solvents used for viscosity adjustment
and cleaning totalled 100,000 pounds (100 percent VOC) . A total
of 900,000 pounds of ink (60 percent VOC by weight) were used in
line 2, while 600,000 pounds of other materials (100 percent of
VOC) were used for Line 2. The ink consumption is tracked daily
at the press and the VOC content is given by the manufacturer.
What are the annual emissions from this facility with Rule
Effectiveness?
Answer: The two gravure lines must be treated separately. Line 1
had no controls and RE zero because there was no attempt
at compliance. The second gravure process (Line 2) is
controlled and RE must be applied. For comparison,
facility emissions with and without RE are presented.
A. Line 1 Gravure Process (No Controls )
Emissions Ink Emissions + Other Emissions
1. Ink Emissions:
Ink Emissions = Ink Consumed x Ink VOC Fraction
= 25,000 lbs ink x 0.12 lbs VOC/ibs ink
= 3,000 lbs VOC
2. Emissions for Other Solvents:
Other Solvent Emissions • Other Solvents Consumed x Other Solvent VOC Fraction
— 100,000 lbs Other Solvents x 1.00 lbs VOC/lbs Other Solvents
100,000 lbs VOC
3. Line 1 Emissions:
Emissions — rnk Emissions + Other Solvent Emissions
3,000 lbs VOC • 100.000 lbs VOC
• 103,000 lbs VOC
• 51.5 tons VOC
B. Line 2 Gravure Process
Step 1 — Before Rule Effectiveness
Emissions • (Ink Emissions • Other Solvent Emissions) x (1 - Control Efficiency)
1. Ink Emissions:
Ink Emissions • Ink Consumed x Ink VOC Fraction
— 900,000 lbs ink x 0.60 lbs VOC/Ibs Ink
— 540,000 lbs VOC
44
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2. Emissions from Other Solvents:
Other Solvent Emissions Other Solvents Consumed x Other Solvent VOC Fraction
600,000 lbs Solvent x 1.00 lbs VOC/ibs Other Solvents
= 600,000 lbs VOC
3. Line 2 Emissions (Before Rule Effectiveness)
Emissions — (Ink Emissions • Other Solvent Emissions) x (1 - Control Efficiency)
(540,000 lbs VOC • 600,000 lbs VOC) x (1 — 0.95)
= 57,000 lbs VOC
—28.5 cons VOC
Gravure Process (Emissions Accounting for RE)
RE Emissions (Ink Emiss o s Other Solvent Emissions) x
(1 - (Concrol EfficiencyxRE))
— (540,000 lbs VOC • 600,000 lbs VOC) x (1 — (0.95 x 0.85))
— 219,450 lbs JOC
109.7 tors VOC
C. Facility Emissions
Facility Emissions Line 1 Emissions + Line 2 RE Emissions
= 51.5 + 109.7 tons VOC
— 161.2 cons VOC
4.2 BEA SOURCES
4.2.1 Stage I (Area Source Category)
Calculation based on rule penetration and SSCD study
results. -
The gasoline throughput for service stations in a
nonattainment area is reported to be 400,000 gallons gasoline per
day. The uncontrolled Stage I emissions are estimated to be 11.5
pounds VOC per 1,000 gallons. The State regulation requires 95
percent control at each facility and covers about 90 percent of
the overall emissions from the category (i.e., rule penetration =
90 percent). The RE for this category has been determined to be
60 percent following an SSCD study conducted by the State agency..
What emissions should be reported in the inventory?
Answer: RE and penetration should be introduced into the
emissions calculation as follows:
45
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Uncontrolled emissions 400,000 gal gasoline/day x 11.5 lbs VOC/1,000 gal gasoline
4,600 lbs VOC/day
RE Emissions Uncontrolled emissions x (1 - (Control fficiency x RE x Rule Penetration))
4,600 lbs VOC/day x (1 — (0.95) (0.60) (0.90))
2,240 lbs VOC/day
4.2.2 Architectural Coating (Area Source Category)
Calculation based on direct determination of emissions.
The ozone nonattainment area inventory includes architectural
sur ace coating as an area source category. Architectural
coatings include surface coating, painting and decorating of
architectural structures, using water—based and oil—based
coatings, cleanup solvents and thinners. The agency describes
the following inventory method and emissions data for the
category.
Architectural surface coating use (consumption) in the
nonattainment area is based on a comprehensive survey of all
coating manufacturers and marketers in the nonattainment area.
The survey results provided consumption of each type of
coating/solvent/thinner and the manufacturers’ statement of its
solvent content. The survey results are from 1990 and include
all coatings, thinners and solvents used in the category.
Results are an annual weighted composite VOC emission expressed
as pounds VOC per gallon coating (0.46 pounds VOC per gallon) and
an estimate of 1,555,322 gallons of coating used in the
nonattainment area. What emissions should be reported in the
base year inventory and what RE value should be applied?
Answer: Although applied to an area source category, this example
follows the traditional point source interpretation of
direct determination because it provides (1) an
accounting of consumption and (2) use of a known solvent
content. However, the inventory procedures are entirely
different for area source categories. In this example, a
direct determination is based on the mass balance done
for the nonatta .nment area.
Emissions • (0.46 lbs VOC/gal) x (1,555,322 gal)
715,448 lbs VOC/year
— 358 tons VOC/year
46
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APPENDIX A
RULE EFFECTIVENESS QUESTIONNAIRE
POINT SOURCES
-------
RULE EFFECTIVENESS EVALUATION FOP.)!
Point Sources
Source Category ______________________________
Source Name ___________________________________
Source Location _______________________________
Source Identifier ____________________________
Choose the one most ppropr ate response for each question.
Answers should be confirm by for a :on in the State or local
agency’s files. When the cr :: h s been completed, total
the scores to determine E. ::: :r.e source; the average score for
all evaluated sources in . :.: gary iS the RE for that category.
PreLiminary Screening:
1. Is this source curr y incontrolled? ______
______ Yes
(If “yes”, choose a.-c: er source to evaluate, and indicate a RE
of 0 percent for ch:s scirce in the inventory.)
2. Are emissions from T 1s source controlled ______ No
by an irreversible ;r cess change? ______ Yes
(If “yes”, choose a :her source to evaluate, and indicate a RE
of 100 percent for source in the inventory.)
3. Have emissions frcrr :his source been ______ No
calculated by means of a direct determination? ______ Yes
(If “yes”, choose . ncther source to evaluate, do not apply RE
to this source, and indicate a RE of 100 percent in the
inventorj.’.)’
A. Nature of the Regulation
l. Does the regulation contain uncorrected deficiencies (not
including record keeping deficiency) as specified in the
SIP-call follow-up letter from the EPA Regional Air
Division Director to your State Air Program Director?
_______ No (5)
Yes or unsure (0) Score _______
If a sosice’s emissions have been estimated using direct determination, maintain the supporting darn and
cafcularions in yçur files.
A-2
-------
APPENDIX A
RULE EFFECTIVENESS QUESTIONNAIRE
POINT SOURCES
-------
RULE EFFECTIVENESS EVALUATION FOR14
Point Sources
SourCQ Category _______________________________
Source Name ___________________________________
Source Location ______________________________
Source Identifier _____________________________
Choose the one most cc:;:: e response for each question.
Answers should be confirr - :rfD ’:on in the State or local
agency’s files. When the -: been completed, total
the scores to determine : e source; the average score for
all evaluated sources in .:- ry is the RE for that category.
Preliminary Screening:
1. Is this source curr r :y ‘.ncontrolled? ______ No
______ Yes
(If “yes”, choose anc: r source to evaluate, and indicate a RE
of 0 percent for ti-.is c rce n the inventozy.)
2. Are emissions from ‘ .:s source controlled ______ No
by an irreversible c: cess change? _____ Yes
(If “yes”, choose ::ier source to evaluace, and indicate a RE
of 100 percent for :. ‘- s source in the inventory.)
3. Have emissions from : is source been ______ No
calculated by means a direct determination? ______ Yes
(If “yes”, choose anct er source to evaluate, do not apply RE
to this source, a.id indicate a RE of 100 percent in the
inventory. )‘
A. Nature of the Regulation
1. Does the regulation contain uncorrected deficiencies (not
including record keeping deficiency)’ as specified in the
SIP-call follow-up letter from the EPA Regional Air
Division Director tO your State Air Program Director?
______ No (5)
Yes or unsure (0) Score _______
If a source’s emissions have been estimated using direct determination, maintain the supporting data and
calculations in your files.
A-2
-------
2. Does the State require source to keep records sufficient Z0
enable an inspector to determine compliance status?
_______ Yes (5;
- No or unsure (Cj
Score
3. How complex is the determination of compliance? (If State
can verify through deta 1ed records that all necessary
compliance determination procedures have been carried ouc,
score 5 points fcr :h:s auest.ion regardless of answer
checked below.)
____ Determination ce made by looking at
facility, as : e csse of an equipment
standard. (5,
____ Determinatior- z-- te made by collecting
and analy::r.g cr.e sample or by evaluating
continuous err ss on monitoring reports.
____ Stack testing, including ca ture and
control, rnus be performed to determine
compliance. (3)
____ Determinaticr. requires that multiple
samples be ken and analyzed and that
plant records be evaluated, as in the case
of cross-lire averaging, time averaging,
or other b’ csles. (2.)
Score
B. Nature of Procedures Jsed to Comply With Regulation
1. This question concerns the relative level of confidence in
the long-term performance capabilities intrinsic to
different control techniques (e.g., how time in operation
and maintenance degradation might affect emissions
control). (Check each technique used at the facility,
total the scores ass.z.gned to each control, divide by the
number of controls and report the average as a single
score. If State can verify through detailed records that
the source has actually been in conbinuous’compliance at
all times during the past two years, score 10 points on
this question regardless of control methods used.)
____ Floating roof (10)
____ Thermal incinerator . (8)
____ Vapor balance (8)
____ Reversible process change (e.g., coating
reformulation) (8)
Condensation system (7)
Carbon adsorber (7)
Catalytic incinerator (7)
Other (assign point value < 10, as
appropriate, relative to above controls)
Score
A-3
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2. Are fugitive emissions that might cause noncompliance a
possibility where add-on controls are used (check one)?
____ No or not applicable because
there is no add-on equipment (5)
____ No, because they have been shown by
an EPA-approved capture efficiency
test to be below allowable limits and
to be so on a con ir.ual basis (5;
Yes or unsure
Score
C. Performance of Source .•. :“::. !::h Regulation
1. What procedures - . c’. ::e follow for operation and
maintenance (O&:: - :: n rcl equipment (check one)?
_____ Plant persc: - —pie:e a formal
training pr: . r.d follow daily
written iris:: : : ns for O&M (5)
____ Same as abc , :cept no training (4)
____ Plant perscr follow weekly
establishei routine (3)
____ Equipment s med to be operating
correctly major malfunction
is detecte (1)
Score ________
2. What is the na . - ;f self-monitoring efforts conducted by
the plant to compliance (check one)?
____ Source tes .s:ng EPA-approved
method)- :s :;r .oucted annually (5)
____ Sample ana: :s tusing EPA-approved
method) iS conducted for each ink
or coating used (5)
____ Above tests are performed, but
less frequently (3)
None or unsu:e (0)
Score ________
3. Does the plant keep records of data (including self-
monitoring, O&M, coating usage, etc.) that would allow
verification of compl:ance?
Yes (5)
No or unsui e (0)
Score ________
Fvr e iampIes of approved test methods. see Test Methods or Procedures for Group 1. II. and [ II CTG’s,” Issues
Rdaszngw VOCReguiwions. Curpouns. Dvfi wntIvs. uiRI Det iasions. EPA/OAQPS/AQMD/OCMPB/PIS, May 25.
19 &
-‘thid.
A-4
-------
4a. Has source been found to be out of compliance in the last
12 months? (If ‘yes”, t. en answer question 4b; otherwise,
skip to Part D)
____ No (10)
____ -Yes or unsure (0)
Score
4b. In responding to Notices of Violation, did the source
demonstrate compliance within the required time frame?
(Answer this ques:..on fliy if you answered “yes” to
question 4a. above
____ Yes (5)
____ No or unsure (0)
Score
D. ‘ Performance of Implere:i::ng Acency in Enforcing Regulation
1. Please answer :ne following questions regarding
verification of ::ie source’s compliance?
a. Are all per ::s and abatement orders
available? ____ No (0) -
____ Yes or not applicable (2)
Score ________
b. Are all app cab1e requirements identified
in the per : e.g., emission limits,
averaging i es, compliance schedule,
monitoring, recordkeeping, reporting,
operation and maintenance, test
requirements)? ____ No (0)
____ Yes or not applicable (2)
- Score ________
c. Are accurate and complete flow diagrams
available for the emission points and
control, capture, ventilation and process
systems? ____ No (0)
____ Yes or not applicable (2)
Score ________
d. Are all source test and sample analysis
results available? ____ No (0)
____ Yes or not applicable (2)
Score ________
e. Are all appropriate control system
operating data available? ____ No
____ Yes or not applicable (2)
Score _______
Total Score
A-5
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2. What is the professional background of the person who most
frequently inspects this souEce? (Choose the one most
applicable answer with highest Score.)
____ Has > 3 years of experience in
conducting plant inspections (5)
____ Has engineering degree and has completed
formal training program on how to
conduct plant inspections (4)
____ Has engineering degree (3)
____ Has completed formal cralning program
on how to conduc pl nc inspections (3)
____ No training, < 3 ve rs of exr erience,
and no engineer:n -ie rree (0)
____ Unsure (0)
Score
3. How many times ::. ce been inspected in the past 24
months? (Ins :::c sc be confirmed by 1nspect on
reports in imp: :: g .gency’s file.)
____ >2 times, unar.nc . nced (10)
____ Once or twice, . nnounced (8)
____ Once or more, •.:i n orior notice or unknown
if notice giver. (6)
____ None or unsure (0)
Score ________
4. What was the h: hest level of inspection performed at the
source in the 24 months? (This must be confirmed by
inspection re; :s :n the implementing agency’s file.)
____ Level 4: sa p...:ng inspection including
preplanned sar ple collection (5)
____ Level 3: compliance evaluation (4)
____ Level 2: walk-through (2)
____ Level 1: observation from outside (1)
___ None or-unsure (0)
Score _______
5. Does the agency generally determine compliance by the
method(s) specified in the regulation?
____ Yes (5)
____ No or unsure (0)
Score
6. If this source has been found out of compliance within the
last 12 months, has formal documented enforcement action
(e.g., consent decrees, variances, court actions,
penalties) been taken against the source?
____ Not applicable because source has not
been found out of compliance (5)
____ les (5)
p No or unsure (0)
Score
A-6
-------
7. If source has been found out of compliance within the last
12 months, has a follow up inspection been made to affirm
compliance?
____ Not applicable because source has not
- been found out of compliance (5)
____ Yes (5)
____ No or unsure ‘ (0)
Score ________
SCORING :
A: ____ of 15 B: ____ cf ____ f 25 D: ____ of 45
TOTAL SCORE = of - - :: : s max:rnurn = RE value for source
A-7
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APPENDIX B
RULE EFFECTIVENESS QUESTIONNAIRE
AREA SOURCE CATEGORIES
-------
RULE EFFECTIVENESS EVALUATION FORM
Area Source Categories
Source Category
•Locat ion
Choose the one most appropriate response for each question.
Answers should be confirmed by information in the State or local
agency’s files. When the questionnaire has been completed, total
the scores to determine RE f r the category.
1. Does the regulation c: uncorrected deficiencies as
specified in the SIP-;: follow—up letter from the EPA
‘Regional Air Divisi- -. :::ector to the State Air Program
Director?
_____ No (5)
_____ Yes or unsure (0)
Score
2. What has been the nature and extent of source education on
requirements of the regulation? (Check all that apply and
sum scores.)
____ Individual so..rce mailings on compliance
requirements (7)
____ Educational opportunities for
plant personnel (7)
____ General notices in newspapers, trade
journals, etc. (3)
____ Inform trade association (3)
None (0)
Score ______
3. What percentage of sources in the inventory typically are
spot checked annually (check one)?
____ >30 percent (20)
____ 10—30 percent (15)
____ 5—9 percent (10)
____ 1—4 percent (5)
____ <1 percent or don’t know (0)
Score ______
B-2
-------
4. What percentage of the past year’s spot checks indicated
compliance (check one)?
____ 100 percent (30)
____ 90—99 percent (25)
____ 50—89 percent (20)
____ 25—49 percent (10)
_____ 1—24 percent (5)
____ <1 percent or don’t know (0)
____ Not applicable since no spot checks
were done (0)
Score
5. Has formal documented enforcement action been taken against
sources found to be o : of compliance (check one)?
____ Not applicable since no inspected
sources have been found to be out
of compliance (10)
____ Yes, for all noncomplying
sources . (10).
____ Yes, in 50 to 99 percent of the cases (5)
____ Yes, in < 50 percent of the cases (2)
____ Never, or don’t know (0)
Score
6. Have enforcement actions for sources in this source category
been publicized in the media (newspaper, TV, radio, trade
journals), either through news stories or paid advertisements
(check one)?
____ Not applicable since no inspected sources
have been found to be out of compliance (5)
____ Yes, in every case (5)
____ Yes, in 50 to 99 percent of the cases (3)
____ Yes, •in < 50 percent of the cases (1)
____ Never, or don’t know (0)
Score
7. Have follow—up inspections been made on sources which were
found to be out of compliance (check one)?
____ Not applicable since no inspected sources
have been found to be out of compliance (10)
____ Yes, in 100 percent of the cases (10)
____ Yes, in 50 to 99 percent of the cases (5)
____ Yes, in < 50 percent of the cases (2)
____ Never, or don’t know (0)
Score
TOTAL SCORE: _________ = RE for Area Source Category
(100 points maximum)
B—3
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APPENDIX C
DIRECT DETERMINATION EXA)’ I1
-------
DIRECT DETERMINATION EXAMPLE
The following wood furniture coating scenario illustrates
typical emission inventory information that may be Collected in
the surface Coating category. This type of information is used
to make and support a direct determination of emissions for an
ozone base year SIP inventory.
FACILITY: RITEWAY FURNITURE
100 Commerce Drive
Ozoneville, USA
DESCRIPTION
Riteway Furniture fabr.cates and paints oak furniture. The
plai’it uses high VOC stains, lacquers, glazes and sealers. This
source is covered under the State’s applicable RACT rules for
wood furniture surface coating. Some of their lines have already
been converted to high volume, low pressure (HVLP) spray guns.
On average, their coatings range from 5.67 lbs VOC/gallon coating
to 6.2 lbs VOC/gallon coating. The State air agency has
recommended that other lines be converted to HVLP spray guns and
that average coating solvent content be capped at 6.0 lbs VOC
(monthly average) for their fo thcoming permit amendment.
EMISSION SOURCES
1990
POINT PROCESS CONTROL DEVICE THROUGHPUT
SB—i Paint Spray Booth None (see attached
SB—2 None sheets)
SB—3 None
SB—4 None
SB—5 None
ADDITIONAL INFORMATION -
The facility summarizes and submits monthly summary data to
the State. Coating and solvent usage (including thinners and
cleanup) are tracked as used at the booths, but the spray booths
are not counted separately. The facility was inspected in 1990
and the monthly summaries were consistent with their daily
records on file at the plant, according to the State compliance
enforcement.
The attached sheet is a monthly spreadsheet from Riteway; all
twelve are on file at the State agency. The “LBS VOC/GAL” come
from manufacturer’s specifications for the coatings.
C—2
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ANSWER : There is sufficient information for direct determination
of emissions because the amount of each coating and
thinner/cleanup solvent used is tracked and documented
regularly for each coating/solvent, the VOC content of
these coatings has been provided by the manufacturer and
the amount emitted is a mass balance calculation based on
these data. In this instance, 100% emission has been
assumed. The facility would be expected to document any
claims that less than 100% is emitted (e.g., some VOC is
incorporated into the product.)
C—3
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RITEWAY FURNITURE: JANUARY 1990 EMISSION REPORT
A B C B’C
MPG NUMBER LBS/ LBS VOC/ CAL. GAL LBS VOC
DESCRIPTION GAL ( less water ) USED EMITTED
53—4100 ENGLISH SAP STAIN 6.82 6.81 0.00
S7—4057 ANTIQUE ASH SAP STAIN 6.62 6.61 56.00 370
PSA7—2460 OAK/KORN IND. 735 7.03 0.00 0
P1—3262 WHITE PRIMER 8.26 ‘6.02 190.0 1.144
0
PC3—888 ANTIQUE TONER 6.83 6.53 90.00 588
PC7—935 ENGLISH TONER 6.28 6.53 10.00 65
PC8—870 BLUE TONER 7.7) 6.41 65.00 417
LS—1582 LACQUER SEALER 7.38 6.05 92.00 557
LS—1 .128 WASHCOAT 7.10 6.51 30.00 195
PC—lODE PENETRATING WOOD S _ 7.10 6.51. 0.00 0
T—636 t x 6.81 6.81 0.00 0
WS—2196 CLEAR GLAZE 7.62 4.28 20.00 86
Ws5—3503 ASH WIPING STAIN 7.58 4.98 15.00 75
WS7—2589 ANTIQUE GLAZE 8.74 3.80 55.00 213
WS7—3303 OAX/KORN IND. 8.92 3.64 5.00 10
WS7—3465 ENGLISH GLAZE 8.57 3.90 25.00 100
F—2679 50 SHEEN CAT/LACQ.Z 7.86 5.39 0.00 0
CA—175 CATALYST 8.24 4.12 0.00 0
F—2554 60 SHEEN M/R LACC Z 7.54 5.08 0.00 0
8—2672 60 SHEEN M/R LACCL!R 7.92 5.16 320.0 1.651
0
LE2-3229 WHITE LACQUER 8.27 5.02 35.00 204
07—1189 E/C SHADE 7.04 6.81 0.00 0
08—1190 BLUE SHADE 7.10 6.61 11.00 73
— PF7—2251 WATER BASE PUTTY 11.98 0.00 6.00 0
1—1703 GLAZE REDUCER HYSOL 10 7.27 7.27 0.00 0
1—1743 GLAZE REDUCER HYSOL 15 7.42 7.42 0.00 0
1—1665 50/50 CUT HYSOL 10/15 7.35 7.35 130.0 956
0
1—1769 MINERAL SPIRITS 6.42 6.42 0.00 0
T—1649 LACQUER THINNER - 6.63 6.63 105.0 696
1-1647 - WASHOFF THINNER 6.61 6.61 0
1—1529 LACQUER RETARDER 7.91 7.91 15.00 119
1-1605 NCR STAIN REDUCER 6.63 6.63 0
1—1622 VM6P NAPTMA 6.23 6.23 55.00 343
UV—505 STRIPCOAT 7.81 5.69 0
1.330 7.867
C—4
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ADDITIONAL QUESTIONS ON DIRECT DETERMINATION
Do the following examples constitute direct determination?
1. The facility used the RACT level (6.0 lbs VOC) to calculate
emissions.
No, an assumed content cannot qualify as a direct
determination.
2. The facility used the RACT level to estimate one coating
line.
Four lines could be directly determined, but the single line
,could not be treated as a direct determination.
3. The facility reported an annual mass balance, but daily
records were not available during the inspection.
The record unavailability would fail the reporting
requirements for direct determination.
4. The facility collected waste coating and shipped it offsite
as hazardous waste.
Yes, direct determination could be claimed if the manifests
are on file and the solvent portion is quantified. Yes, if
this waste is not quantified, but no hlcreditu is given for
the waste. No, if this waste is not documented but is
subtracted from the emissions.
5. For the inventory year, this source was not permitted under
the regulation.
This fact has no bearing on direct determination, only the
application of Rule Effectiveness.
6. The facility vents spray booth emissions to an incinerator
and reports a 96 percent control efficiency and test report
(the same mass balance documentation is submitted for
uncontrolled emissions).
With a control device, this calculation is no longer a direct
determination and Rule Effectiveness must be applied.
7. The facility reports that 2 lbs VOC are consumed per 100
pieces, and submits monthly reports of production (pieces).
Rate per unit of production is not suitable for direct
determination where the production is not coating or solvent
used.
C—5
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APPENDIX D
DETERMINING SAZ I2 SIZE
-------
DETERZ4IN TION OF SM’WLE SIZE
The sample chosen for the RE questionnaire survey should be
representative of the relevant category population as a whole.
This means that the size of the sample must be statistically
adequate to represent that category population. A population
mean or proportion is estimated by the corresponding mean or
proportion of the sample. In addition to the size of the sample
(i.e., the sources for which a questionnaire is completed), it is
also necessary to consider the makeup of the sample chosen.
For many applications, the population parameters (i.e.,
population mean and popu1at on standard deviation a) are
usually known or can be estimated. In the case of RE, estimating
these parameters is’the ob:ective of the survey. The population
mean can be approximated by the sample mean with some degree of
error. In deciding on size of sample for a given survey, several
elements must be considered: -
The standard deviation of the population from which the
sample is to be drawn. Lacking this information, it can be
estimated either from past surveys (if available) from the
same population, from an initial survey conducted for this
purpose (the first ten sources chosen at random) or from
rational considerations of what this population might look
like.
• The degree of accuracy “e” one would like to have in the
sample data. Thi is usually defined as an interval and is
referred to as the limit of error. The sample mean will
usually not be exactly equal to the population mean. The
size of this difference is the limit of error “e.”
• The degree of confidence a one would like to have to be
confident that the population mean is within the limit of
error set above.
Thus, if the sample mean is used as an estimate of the
population mean , we can be (1 — a) x 100 percent confident that
the, limit of error will be less than a specified amount “e” when
the sample size is at least
( z.iaa)Z
where n = ‘sample size
a = standard deviation of the population
e = limit of error (usually in the range of 5 to 10-
percent of the value of the mean)
a = confidence level
= index derived from the normal curve
corresponding to the desired confidence levels:
D—2
-------
a (Percent)
90 1.65
95 1.96
99 2.58
99.7 3.00
The following tables were developed using the equation
presented above. They show the sensitivity of sample size with
respect to the confidence level a, the limit of error e, and the
standard deviation of the population from which the sample is to
be drawn. There is a trade—off between confidence level and
limit of error. The largest sample size provides the highest
confidence level and lowest limit of error. In addition, larger
sample sizes are required when the standard deviation is larger.
Conversely, the smallest sample size provides the lówest
conf .dence level and the highest limit of error. Smaller sample
sizes can be used when the standard deviation is lower.
The following example illustrates the use of the tables
presented above. Assume that an air pollution control agency is
interested in estimating rule effectiveness (RE) in the can
coating industry. However, no prior estimates on RE are
available from previous research. Lacking such an estimate, the
initial survey was conducted on 10 facilities. Results of the
initial survey yielded an average RE value of 80 percent with a
standard deviation of 8 percent. Assuming a 90 percent
confidence limit and a limit of error of 5 percent, the sample
size required is obtained from Table 1 and is equal to 7. In
this case, the survey for this category would be complete.
However, if the standard deviation obtained from the initial
survey was 10 percent and the limit of error was 5 percent, the
number of facilities required for sampling increases from 7 to 11
facilities, and one more questionnaire would need to be
completed. On the other hand, choosing a larger limit of error,
5.5 percent instead of 5 percent, will yield a sample size of 9
facilities instead of 11.
CHOICZ OF §A1I LE SIZE
For statistical purposes, the variables affecting the sample
size are the limit of error and the confidence level. However,
decisions on actual sample size to be used must also include
considerations such as available resources and data quality
requirements. A decision on what sample size to choose should
begin with an estimation of the resources necessary for execution
and data analysis. The initial survey of ten randomly—selected
facilities can be used for that purpose. The second step in
deciding on the size of the sample and the type of survey to be
conducted is to determine the resources available to the
surveying agency including staff time available for completing
the questionnaires. The next step is to determine a sample size
D—3
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based on the statistical formulas and estimate the resources
required to conduct the survey. Those resources are then
compared to the resources available to the agency for the purpose
of conducting the survey. If the resources needed exceed the
available resources, the agency should decide on an affordable
sample size. This is achieved by modifying the acceptable limit
of error or confidence level or both.
EPA recommends that the 90 percent confidence interval
(Table D—1) be used; the suggested sample error is 5 percent, but
should not exceed 10 percent. State and local agencies are
permitted latitude to choose higher confidence intervals and
lower sampling errors. Where these methods are used, the SIP
documentation should state :he selected error and confidence
levels.
D—4
-------
2
7
TABLE
D—1.
SENSITIVITY
ANALYSIS OF SAMPLE SIZE: CONFIDENCE
LEVEL = 90%
-.
Standard
Deviation
-
.
2%
4%
6%
8%
10% 12%
14%
16%
18%
20% 22% 24%
16
Sample
Error
2.5%
28
44
63
85
112
141
174
211
251
3.0%
1 5
11
19
30
44
59
77
98
121
146
174
3.5%
1 4
8
14
22
32
44
57
72
89
108
128
4.0%
1 3
6
11
17
25
33
44
55
68
82
98
4.5%
1 2
5
9
13
19
26
34
44
54
65
77
S -
* -• S -
,
4. ,
7
11
16
21
28
35
44
53
6 3
5.5%
0 1
3
6
9
13
18
23
29
36
44
52
6.0%
0 1
3
5
8
11
15
19
25
30
37
44
6.5%
0 1
2
4
6
9
13
16
21
26
31
37
7.0%
0 1
2
4
6
8
11
14
18
22
27
32
7.5%
0 1
2
3
5
7
9
12
16
19
23
28
8.0%
0 1
2
3
4
6
8
11
14
17
21
25
8.5%
0 1
1
2
4
5
7
10
12
15
18
22
9.0%
0 1
1
2
3
5
7
9
11
-13
16
19
-------
TABLE
D—2.
SENSITIVITY
ANMIYSIS OF SAMPLE SIZE: CONFIDENCE
LEVEL
=
95%
Standard
Deviation
-
.
2%
4%
6%
8%
10% 12%
14%
16%
18%
20% 22 24%
2 10 22 39 61 89 120 157 199 246 297 354
2 7 15 27 43 61 84 109 138 171 207 246
1 5 11 20 31 45 61 80 102 125 152 181
1 4 9 15 24 35 47 61 78 96 116 138
1 3 7 12 19 27 37 49 61 76 92 109
‘1 , 2 6 1.0 15 22 30 39 50 6] 74 89
1 2 5 8 13 18 25 33 41 51 61 73
0 2 4 7 11 15 21 27 35 43 52 61
0 1 3 6 9 13 18 23 29 36 44 52
0 1 3 5 8 11 15 20 25 31 38 45
0 1 2 4 7 10 13 17 22 27 33 39
0 1 2 4 6 9 12 15 19 24 29 35
0 1 2 3 5 8 10 14 17 21 26 31
0 1 2 3 5 7 9 1.2 15 19 23 27
Sample
Error
2.5%
3.0%
3.5%
4.0%
4.5%
540%
5 . 5%
6.0%
6.5%
7.0%
7 .5%
8.0%
8.5%
9.0%
-------
4
17
ThBLE
D—3.
SENSITIVITY
ANALYSIS OF SMWLE SIZE: CONFIDENCE
LEVEL
= 99%
Standard
Deviation
-
2%
4%
6%
8%
10% 12%
14%
16%
18%
20% 22% 24%
38
Sample
Error
2.5%
68
107
153
209
273
345
426
515
613
3.0%
3
12
27
47
74
107
145
189
240
296
358
426
3.5%
2
9
20
35
54
78
107
139
176
217
263
313
4.0%
2
7
15
27
42
60
82
107
135
166
201
240
4.5%
5 .0%
‘
1
5
4
12
3 .0
21
17
33
27
47
38
64
52
84
68
107
86
131
107
159
129
189
153
5.5%
1
4
8
14
22
32
43
bt .
71
88
107
127
6.0%
1
3
7
12
18
27
36
4_I
60
74
89
107
6.5%
1
3
6
10
16
23
31
40
51
63
76
91
7.0%
1
2
5
9
14
20
27
35
44
54
66
78
7.5%
0
2
4
8
12
17
23
30
38
47
57
68
8.0%
0
2
4
7
10
15
20
27
34
42
50
60
8.5%
0
1
3
6
9
13
18
24
30
37
45
53
9.0%
0
1
3
5
8
1.2
16
21
27
33
40
47
-------
APPENDIX E
DEFAULT CONTROL ASSW TIONS FOR CTG CATEGORIES
-------
The attached table lists the CTG categories and the approximate
control efficiency which the CTG authors identified for the CTG
categories. Many of the efficiencies depend on which control
method is used and the solvent content. Closer analysis of the
CTG documents and references would likely improve the rough
estimates provided here. EPA has not determined the validity or
reliability ofthis listing for the purposes of RE.
E—2
-------
TABLE E-l. TYPICAL VOC REDDCTION PER FACILITY FOR CTG
CATEGORIES BASED ON CTG DOCU1’ NTS
Category Low’
High’
Single C ’ nt
(%)
(%)
Value
(%)
Point Source Categories
Gasoline Loading Terminals 87
Bulk Gasoline Plants
Alternative 1
Total Plant 22
All Transfers 27
Alternative 2
Total Plant 54
All Transfers 64
Alternative 3
Total Plant 77
All Transfers 92
Fixed Roof Petroleum Tanks 90+
Refinery Processes
VPS 100
WS 95
PUT 98
Surface Coating Solvent % and control
dependent
Cans 60 100
Metal Coils 70 98
Fabric and Vinyl 80 100
Paper Products 80 99
Automobiles & Light Duty
Trucks
Prime Coating 80 93
Top Coating 75 92
Final Repair Coating NA
Metal Furniture 50 99
Magnetic Wire 90
Large Appliances 79 95
(continued)
E—3
-------
TABLE E-1. TYPICAL VOC REDUCTION PER FACILITY FOR CTG
CATEGORIES BASED ON CTG DOCU) NTS (continued)
Category Low’
High’
Single Co nt
(%)
(%)
Value
(%)
Misc. Metal Parts
Process Modification 50 98
Exhaust Gas Treatment 90+
Flatwood Paneling 70 90
Graphic Arts
Publication Rotogravure 75
packaging Rotogravure 65
Flexographic Printing 60
Leaks from Petroleum Refineries 62 Based on 15,900 m 3 /day
External Floating Roof Tanks 33 99
Gasoline Truck Leaks & Vapor NA
Collection
Synthetic Pharmaceutical NA
Manufacturing
Rubber Tire Manufacturing
Carbon Adsorption 62 86
Incineration 59 81
Water—based Coatings 97
Leaks from NG/Gasoline 72 Model plants
Processing Plants
Mfg. of HDPE, PP, and PS Resins 98 Model Plants
SOC & Polymer Mfg. Equipment 36 under RACT
Fugitives
Large Petroleum Dry Cleaners 66 72
SOCMI Air Oxidation Processes
Thermal Oxidation 98 with controls above
baseline
53
(continued)
E—4
-------
TABLE E-1. TYPICAL VOC REDUCTION PER FACILITY FOR CTG
CATEGORIES BASED ON CTG DOCU NTS (Continued)
Category
-
Low’
(%)
High’
(%)
Single
Value
(%)
Coant
Area Sources
Ser, ice Stations - Stage I
Transfer Losses
95+
Total Facility
50
Cutback Asphalt
100
Solvent Metal Cleaning
Cold Cleaning
53
+1-
20%
Open-top Vapor Degreasir
. 5
60
+1-S
15%
CD
25
60
#1—
10%
-
Perchioroethylene Dry Clear.. rs
40
70
arbon
Adsorption
Jsers should select the i -; value from a range unless another value is
justified. One-hundred p.?r:. r t should never be used unless the emissions are
directly determined or th . re has been an irreversible process change.
E- 5
-------
0 Sr 4
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
_ _ Office of Air Quality Planning and Standards
______ Research Triangle Park. North Carohna 27711
4 c o’
NOV 2199Z
MEMORANDUM
SUBJECT: Guidelines for Estimating and Applying Rule
Effectiveness for Ozone/Carbon Monoxide State
Implementation Plan Base Year Inventories
FROM: John Calcagni, Director (,,...- .,g -
Air Quality Management D’3!kri ior (MD-is)
,
TO: Director, Air, Pesticides and Toxic .
Management Division, Regions I and IV
Director, Air and Waste Management Division,
Region II
Director, Air, Radiation and Toxics Division,
Region III
Director, Air and Radiation Division,
Region V
Director, Air, Pesticides and Toxics Division
Region VI
Director, Air and Toxics Division,
Regions VII, VIII, IX , and X
The purpose of this memorandum is to uifo m you of the
completion of the “Guidelines for Estimatin j d Applying Rule
Effectiveness for Ozone/Carbon Monoxide State Implementation Plan
Base Year Inventories.” This technical guidance is designed to
aid the States in preparing their emissions inventories, which
are due November 15, 1992, for moderate and above ozone
nonattaininent areas and moderate and serious carbon monoxide
nonattainment areas. Rule effectiveness is addressed in 57 FR
13498 at 13503, April 16, 1992 entitled, State Implementation
Plans; General Preamble for the Im 1ementation of Title I of the
Clean Air Act Amendments of 1990; Proposed Rule . This is
additional technical guidance.
One copy of this document is enclosed; additional copies to
forward to the States will be sent as soon as they are available.
States can access the document through the Technology Transfer
Network under the filename RULE EFF.DOC. If you have any
questions or comments, please contact John Silvasi (919—541-
5666), Sheila Holman (919—541—0861), or Gerri Pomerantz (919—541—
5511).
Attachment
-------
2
cc: Air Branch Chief, Regions I-X
Rule Effectiveness Coordinators, Regions I-X
John Seitz, OAQPS
Lydia Weg!nan, OAQPS
Dick Wilson, OMS
Bruce Jordan, ESD
Bill Laxton, TSD
John Rasnic, SSCD
Marcia Mia, SSCD
Linda Lay, SSCD
Rich Ossias, 0CC
William Becker, STAPPA/ALAPCO
David Mobley, EIB
Marty Martinez, EIB
David Misenheimer, EIB
L’ee Gabele, EIB
Tom Helms, AQMD
John Silvasi, AQMD
Gerri Poinerantz, AQMD
Sheila Holman, AQMD
Kimber Scavo, AQMD
Barry Gilbert, AQMD
Doug Grano, AQMD
Laurel Schultz, AQMD
-------
?i
tO $r
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
Research Triangle Park, North Carolina 27711
4 f.po’ .
MAY 26 1993
MEMORANDUM
SUBJECT: Calculation of Rule Effectivei ess fo issions
Inventories
FROM: / John S. Seitz, Directorc ”
7 7’-orr ice of Air Quality P Mning d Standards (MD—b)
TO: Director, Air, Pesticides and Toxics
Management Division, Regions I and IV
Director, Air and Waste Management Division,
Region II
Director, Air, Radiation and Toxics Division,
Region III
Director, Air arid Radiation Division,
Region V
Director, Air, Pesticides and Toxics Division,
Region VI
Director, Air and Toxics Division,
Regions VII, VIII, and X
There has been some confusion about acceptable methods for
determining rule effectiveness (RE) for 1990 base year emissions
inventories and the necessary requirements for receiving emission
reduction credits in 1996 for RE improvements. This memorandum
clarifies the criteria that should be applied by the Regions when
reviewing a State’ s method. for assessing RE. In addition, it
explains the requirement for taking credit for RE improvements in
State 15 percent plans.
Review of Alternative RE ilethods
In November 1992, the Environmental Protection Agency (EPA)
published “Guidelines For Estimating and Applying Rule
Effectiveness For Ozone/CO State Implementation Plan Base Year
Inventories” (EPA—452/R—92—O10). In this document, three methods
for estimating RE were identified as acceptable strategies:
1. 80 Percent Default - uses an across-the-board RE
presumption of 80 percent for all sources.
2. Questionnaire Approach — uses an EPA questionnaire
to determine a category-specific RE value for both point sources
and area sources.
-------
2
3. Stationary Source Compliance Division (SSCD) Protocol
Study — uses a study specific to a category- in accordance with
the procedure developed by SSCD.
In addition to these three methods, a fourth option was also made
available in the addendum to the November 1992 guidance. This
additional option gave States greater flexibility in designing an
alternate method for est:imating RE. The addendum outlined the
following information that States should consider in alternative
RE methods:
1. The overall capture and control efficiency generally
available from the kind of capture and control equipment being
assessed.
2. Any stack test/performance evaluation that was performed
on the capture and control equipment.
3. The rated capture and control efficiency (from
manufacturer’s specifications or literature).
4, The kinds of activities that affect the determination of
day-to-day performance of the capture and control equipment that
are listed in the questionnaires contained in the guideline
document (e.g., ease of determining compliance, type of control
equipment, frequency and quality of inspections, and level of
training of inspectors).
- If a State develops an alternative RE method, it must not
only account f or the above information, but should also follow
the basic requirements outlined in the guidelines. These
include:
1. Following the sampling strategy outlined in section
2.4.2.3 of the guidelines and determining the appropriate sample
size according to the method described in Appendix D. This
means, for example, that if a State plans to use a modified
version of the questionnaire, the following conditions should be
met. At least 80 percent of the total pollutant-specific
emissions (e.g., volatile organic compounds) from point sources
should be covered by questionnaires and all categories
representing 5 percent or greater of the pollutant—specific
emissions from point sources should use the questionnaire. Both
- conditions (80 percent coverage of total-point source pollutant
emissIons and every category representing 5 percent or more of
the total point source poLlutant emissions) should be met for the
questionnaire approach. At least 10 point sources within a
category should be sampled; all point sources should be sampled
if there are 10 or fewer sources in a category (see pages 20—2].
and Appendix D of the guidelines for a more detailed
explanation).
-------
3
2. Providing the rationale for the alternate RE method
(e.g., changes to the questionnaire, including why items were
added or deleted and justification of changes to the weighting
scheme for individual items).
When reviewing a State’s alternate method for estimating RE,
EPA Regions should be assured that every attempt has been made to
meet the above criteria. However, there may be circumstances,
such as unavailability of resources or information, that prevent
a State from meeting these sampling guidelines. Any deviations
from these guidelines must be approved by the Region with
concurrence from Headquarters. In determining whether to approve
these deviations, the Region should recognize the intent of the
above sampling criteria, namely to obtain a statistically valid
sample that will result in an emission estimate that is as
accurate as possible.
If, based on the documentation provided by the State, a
Region is unable to assess whether the alternative methodology
follows the appropriate procedures, it should require the State
agency to provide additional documentation. After the Regional
Office has completed its review, the Region must consult with the
Office of Air Quality Planning and Standards (OAQPS). Both
Region and Headquarters concurrences are needed on any
alternative RE method.
An alternative RE method that has already been approved by
the Regional Office is exempt from any additional requirements of
this memorandum. -
Credit for RE ImDrovemnent
Rule effectiveness improvements must reflect actual
emissions reductions resutting from specific implementation
program improvements. To receive emission reduction credits for
RE improvements, a State agency must document the improvements.
An SSCD protocol study. that meets EPA’S protocol requirements
must be performed to confirm that reductions have been made after
the implementation of the improvement program. A State that
plans to take credit for RE improvements in its 15 percent rate-
of-progress plan to be submitted by November 15, 1993 must
therefore commit in that plan to perform this study after
implementation of the RE improvement program. Note that States
that have been assuming 80 percent RE for a given rule before an
RE improvement goes into effect can only receive credit for the
portion of emissions reductions over the 80 percent level.
The OAQPS is currently developing guidance on how to
quantify RE improvements in rate-of-progress plans. Questions on
these issues may be directed to Gerri Pomerantz of the Air
Quality Management Division (919—541—2317).
-------
4
cc: Air Branch Chiefs, Regions I-X
Richard Biondi
Torn Helms
Linda Lay
Marcia Nia
David Mobley
Rich Ossias
Gerri Pomerantz
Bill Repsher
John Silvasi
Henry Thomas
-------
uu.e
u .U4 541 U 2 4 — - ————————---———— - —-—— - —
Uo/ua/
( 7
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
RESEARCH TRIANGLE PARK. NC 27711
\ p o r APR 27 1995 OFFICE OF
AIR OUAUTY PLANNING
AND STANDARDS
NEMORANDW4
SUBJECT: Ozone Nonattaininent Planning: Decentralization of
Rule Effectiveness Policy
(Z&a.%F c J i
FROM: Sá lly L’. Shaver, Director
Air Quality Strategies & Standards Division (MD—15)
TO: Director, Air, Pesticides and Toxics Management
Division, Regions I and IV
Director, Air and Waste Management Division,
Region II
Director, Air, Radiation and Toxics Division,
Region III
, Director, Air and Radiation Division,
Region V
Director, Air, Pesticides and Toxics Division,
Region VI
Director, Air and Toxics Division,
Regions VII, VIII, IX, and X
At the January meeting of State Environmental Commissioners,
National Governor’s Association members and STAPPA\ALAPCO, the
States asked that EPA’S 80 percent rule effectiveness policy,
used to develop title I ozone nonattaininent plans, be reevaluated
or replaced with more flexible criteria for SIP demonstrations.
In our response, EPA pledged to work with States to provide
opportunities for more flexibility. This guidance memo is
intended to provide that flexibility by encouraging -States and
EPA Regions to work together to determine the most appropriate
rule effectiveness values for specific ozone nonattainment areas.
Accordingly, this memo initiates a decentralization process for
rule effectiveness actions by delegation of all overview and
approval activity to the EPA Regional Offices. It is no longer
necessary for OAQPS to overview or concur on rule effectiveness
studies and determinations. While the general principles
embodied in past Agency guidance documents are still operable,
EPA Regions are encouraged to work with individual States as they
make technically sound modifications to the rule effectiveness
used in State emissions inventory calculations.
Background
The EPA càrrently allows States to develop alternate rule
effectiveness methods as long as they follow certain basic
requirements as described in the 1992 and 1994 guidelines for
-------
2
rule effectiveness. 1 These previous guidance documents identify
three options that the States might consider as alternatives to
EPA’s recommended 80 percent default value for rule
effectiveness. One of these options allows States to develop
their own alternative method for estimating rule effectiveness.
The information that States should consider in alternative rule
effectiveness methods is outlined in the November 1992 guidance
document referred to in footnote #1.
As you are aware, limited experience during the late 1980’s
indicated many VOC regulatory programs to be less than fully
effective in achieving the planned emIssions reduction credits.
Current automobile inspection/maintenance credits contained in
EPA’S mobile model recognize this fact. Thus, EPA developed rule
effectiveness guidance to account for emission underestimates due
to such factors as noncompliance with existing rules, control
equipment downtime, operating and maintenance problems, process
upsets, and regulatory flaws. For many applications, a rule
effectiveness assessment includes the adjustment of emissions for
sources or source-categories to correct for these failures and
uncertainties. As such, EPA continues to believe that a rule
‘effectiveness adjustment provides a more reliable estimate for
SIP control, planning, and modeling activities.
Rule effectiveness can be affected by.several factors 1
Aitong these are the nature of the regulation, the nature of
techniques used to comply with• the regulation, the performance of
each source in complying with the regulation, ‘and the performance
of the implementing agency in enforcing the regulation. For
example, enhanced monitoring could increase the performance of
the implementing agency in enforcing the regulation and cause
adjustment to the 80 percent rule effectiveness default value.
Conclusion
A number of questions have been raised regarding the
determination of rule effectiveness. Since EPA’s goal is to
provide flexibility for StEttes and EPA Regions to make area-
specific rule effectiveness decisions, we suggest that each
Regional Office take the initiative in addressing rule
effectiveness issues with its States. As stated in the
memorandum from John S Seitz, dated May 26, 1993, to the
‘ Guidelines for Estimating and A lying Rule Ef fectiveness
for Ozone/CO State Implementation Plan Base Year Inventories ,
EPA—452/R—92-01O, 11/92; and Rule Effectiveness Guidance:
Integration of Inventory, Compliance, and Assessment
Applications , EPA 452/R—94—001, 1/94.
-------
3
Regional, Air Division Directors, subject: Calculation of Rule
Effectiveness for Emissions Inventories, the EPA will allow
States to use factors other than 80 percent, justified by State—
specific studies and approved’ by the appropriate EPA Regional
Office. Approval by EPA Headquarters will no longer be
necessary.
The contact persons for this guidance are Tom Helms at
919—541—5527 or Ted Creeknore at919-541,—5699. If you have any
questions please contact me at 919-541-5505.
cc: John Seitz
Lydia Wegman
Bill Harnett
Torn Helms
-------
H. General Cross—Cutting
Guidance and Misc.
-------
H. General Cross-Cutting Guidance and Miscellaneous
H.l. Review of State Implementation Plans and Revisions for
Enforceability and Legal Sufficiency -- Sept. 23, 1987 memo from
Alushin, Eckert and Seitz
H.2. The Clean Air Act Section 183(d) Guidance on Cost-
Effectiveness - - November 1991
H.3. Distribution of the Cost-Effectiveness Guidance Developed in
Response to Section 183(d) of the Clean Air Act -- Dec. 13, 1991
memo from John S. Seitz
H.4. State Implementation Plans; General Preanible f or the
Implementation of Title I of the Clean Air Act Amendments of
1990; Proposed Rule 57 FR 13498 (Apr. 16, 1992)
H.5. State Implementation Plans; General Preamble for the
Implementation of Title I of the Clean Air Act Amendments of
1990; Supplemental; Proposed Rule 57 FR 18070 (Apr. 28, 1992)
H.6. Interim Regulatory Flexibility Act Language for SIPs --
Aug. 25, 1992 memo from Denise Gerth
-------
1 U )Z
•.‘
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
1.
C,
SEP23 1987
MEMORANDUM
SUBJECT: Review of State Implementation Plans and Revisions
for Enforceability and raegal Suffici flCy
d.11 4/
FROM: Michael S. Alushin 7ç
Associate Enfordement Counsel
for Air Enforcement
Alan W. Eckert
Associate Gener Co nsel
Air and Radiation Division - -
John S. Seitz, Director 4’
Stationary Source Complia on
Office of Air.Quality Pla .ng and Standards
TO: Addressees
This is to provide implementing guidance on the memorandum
issued by J. Craig Potter, Thomas Adams and Francis Blake
on this date relating to review of SIP plans and revisions
for enforceability and legal sufficiency. We urge you to
provide copies of these memoranda to your State Agency Directors.
Appl icabi 1 it r
This guidaace applies to all SIP proposals which have
not completed the state or local agency legal and procedural -
requjremenes for SIPS. For proposals-that have not yet
been submitted to the Regional office for action, the state
and local agencies have forty—five (45) days from the date
of this guidance to submit such proposals for review in order
for the proposal to be considered under preVious procedures.
SIP packages currently in Headquarters willundergo the usual
review but will be returned to the Regions if they contain
deficiencies which raise significant auestions as to whether
the regulation would be enforceable.
Enforceability Criteria
The notion of enforceability encompasses several concepts.
At the most basic level, a regulation must be within the statutory
authority of the promulgating agency. For example, some states
have statutory restrictions or prohibitions on the promulgation
of regulations more restrictive than the federal counterpart.
-------
—2—
Although we should generally defer to a State’s interpretation of
the scope of its authority, when there is real doubt we
should, at a minimum, consult the responsible State Attorney to
be certain the issue has been considered and resolved. When
appropriate, an opinion letter should be obtained from the
State Attorney General.
Please ensure that the following additional issues are
directly addressed.
Applicability
It should be clear as to whom the regulation applies. The
SIP should include a description of the types of affected
facilities. The rule should also state in which a?eas the rule
applies (entire state, specific counties, nonatta -inment, ebc.)
and advise the reader that State administrative changes require
a formal SIP revision. Also, some regulations might require a
certain percentage reduction from sources. .The regulation•
should .be clear as to how the baseline from which such a reduction
is to be accomplished is set. In some cases it may be necessary
for enforcement purposes and independent of Clean Air Act
requirements for the SIP to include an inventory of allowable
and actual emissions from sources in the affected categories in
order to set the above baseline.
0 Time
-The regula-tion should specify the rea ired date of
compliance. L it upon promulgation, or approval by EPA, or a
future date certain? Future effective dates beyond the
approved or proposed attainnent date should not be allowed
unless the related emissions reductions are not needed for
attainment. Also, the regulation should.specify the important
dates required of any- compliance schedule which is required to
be submitted by the source to the state.
O Effect of Changed C•inditjons
If changed circumstances effect an emission limit or other
requirement the effect of changed conditions should-be clearly
specified. However, you should not approve state requlations
which tie the applicability of voc control requirements to the
nonattainment status of the area allow for automatic nullifi-
cation of the regulations if the area is redesignated to an
attainment status. Such regulations should continue to apply
if an area is redesignated from nonattainment to attainment
status unless a new maintenance demonstration supporting a change
in the rule’s applicability is submitted and approved by EPA.
-------
—3—
° Standard of Conduct
The regulation must be sufficiently specific so that a
source is fairly on notice as to the standard it must meet.
For example, “alternative equivalent technique” provisions
should not be approved without clarification concerning the
time period over which equivalency i8 measured as well as
whether the equivalency applies on a per source or per line
basis or is facility wide.
o Incorporation by Reference -
Some federal regulations are inappropriate for adoption
by reference. For example, a state intending to enforce PSD
regulitions adopted by reference must adopt 40 C.F.R.. S52.21,
not 40 C.F.R. S51.166, as only the former is written in a form
imposing obligations on permit applicants. Even , hen, changes
may have to be made to take into account. the difference between
the State’s situation and EPA’S.
• Transfet Efficiency
Some states have attempted to provide particular VOC
sources with relaxations of compliance limits in return for
improvements in the efficiency with which the sources use the
pollutant produ ing material. Any rules allowing transfer
• efficiency to be used in determining compliance must be explicit
as to when and under what circumstances a source may use improvçd
transfer efficiency as a substitute for meeting the SIP limit.
Such provisiozth n st state whether EPA approval is required on
a case—by—case basis. Also, such provisions may not simply
reference the NSPS auto coating tables for the transfer
efficiency. The improvement should be demonstrated through
testing and an appropriate test method should be set forth.
Implied improvements nàted by the lISPS auto coating TE
table are notto be accepted at face value.
o Compliance Periods
SI rules should describe explicitly the compliance tin e
frame associated with each emission limit (e.g. instantaneous,
stack test, 3 hour average or daily). The Regions st. uld not
assume that a lack of specificity, implies instantaneous compliance.
The time frame or method employed must be sufficient to protect
the standard involved.
o Equivalency Provisions and Discretionary Emission Limits
Certain provisions allow sources to comply via “bubbles”
or “alternate equivalent techniaues” or through mechanisms
“as approved by the Director.” These provisions must make it
-------
—4—
clear as to whether EPA approval of state granted alternative
compliance techniques is required on a case—by—case basis in
order for the changed mode of compliance to replace the existing
federally enforceable requirement. If EPA case—by—case approval
will not be required, then specific, objective and replicable
criteria must be’set forth for determining whether the new
arrangement.is truly equivalent in terms of emission rates and
ambient impact. Such procedures must be consistent with the
control levels specified in theoverall SIP control strategy
and must meet other EPA po1icy requirements, including the
“Emissions Trading Policy”, 51 Fed. Req. 43814 (1986), in
relevant instances.
Recordkeeping
The SIP must state explicitly those records which sources
are required to keep to assess compliance for the time framq
specified in the rule. Records must be commensuri e with regula-
tory requirements, and must be available for examinatign on
request. The SIP must give reporting schedules and reporting
formats. Fbr example, these rules must require daily records
if the SIP requires daily compliance. Additionally, the record—
keeping must be required such that, failure to do so would be a
separate violation in itself.
o Test Methods
Each cømpliance provisián must list how compliance is
to be determined and the appropriate test method to be used.
The allowable averaging times should be explicit. Both the
test method ahd veraging times employed must be sufficient
to protect the—ambient standard involved.
o Exemptions
I-f sources under a certain size are exempted from control
requirements, the regulation must identify how the size of a
particular source is to be determined.
o Malfunction and Variance Provisions
Any malfunction or variance exemptions must be clear in
their substantive application and i how they are triggered.
The rule must specify what exceedances may be excused, how the
standard is to be applied, and who makes the determination.
Conclusion
we appreciate your attention to this matter and hope
that the specific review for enforceability yill be a further
step in improving the overall SIP process and structure.
To assist you, we have attached an enforceability checklist.
This checklist should be included as part of your technical
support packages in all future SIP packages. -
-------
—5—
Please contact the appropriate staff attorney in the Office
of General Counsel or the Office of Enforcement and compliance
Monitoring should ou have any questions concerning issues of
enforceability in particular instances. Please contact Tom
Helms, OAQPS, FTS—629—5526, for other questions concerning
implementation of this guidance. -
Attachment
Addressees:
• Regional Administrators
Regions I—X
Regional Counsels
Regions I—K
Air Management Division Directors
Regions I, III and IX
Air and Waste Management Division Director
Region II
Air, Pesticides, and Toxics Management Division
Directors
Regions IV and VI
Air and Radlatf on Division Director
Region V
Air and Toxics Division Directors
Regions VII, VIII and K
cc: Deputy Regional Administrators
Regions I—X
Regional Counsel
Air Contacts
Regions I—K
Air Compliance Branch Chiefs
Regions II, III, IV, V, VI, IX
Air Program Branch Chiefs
Regions I-X
Darryl Tyler, Director
Control Programs Development Division
Gerald Emison, Director
Office of Air Quality Planning
and Standards
-------
Attachment.
P APPOVABtLITY CHECKL,IST— ENFORCEABfl,rry
SIP Package No. ______________ Date Rec. -- Date Due -- --
S
STATE: -
Subject Matter: -
iSpecific Provisthn and Description ) -
Enforceability Analysis - Stat Submittal EPA Requirement A rovabilitv (Approvable or Not
-- ( list responsei ) -
1. Applicability
a. What sources are being Clarity
regulated?
b. What are criteria for Clarity
exemption?
c. Is calculation Example calculation or
procedure for exemption clear explanation of
clearly specified? how to determine
exemption (line by line,
etc.
d. Is emission inventory Inventory including
listed in the allowaSle and actual
background document emissions (‘in source
of the attainment Categor y should be
demonstration? included, for enforce-
ment purposes and
independent of any Clean
Mr Act’ requirements,
in the attainment demon-
stration if suth data is
necessary for determin—
ing baselines in regula—
-------
1 ifer abI1ftv Analysis
State Submittal EPA Recuirement
Ar”rovabilitv (Aoorovablë n N
e. Is the averaging timers)
used in the rule differ—
ent from that of the
anbient standard?
f. What are the units of
compliance (lbs VOC per
gallqn of aolid.s
applied less waler,
grains per standard
cubic foot?)
-- g. Is bubbling or averag-
ing of any type
allowed? If yes,
state criteria.
Could a U S. EPA
inspector independently
determine if the
criteria were met? Does
EPA have to approve
each case?
The averaging time in the
rule must be consistent
with protecting the ambient
standard in question.
Normally, it should be equal
to or shorter than the
time associated with the
standard. longer term
averaging is available
only in limited instances
provided that the ambient
standard is not compromised.
p.
Clearly stated in the
ule
Explicit description of
bow averaging, butblinq,
or equivalency is to be
determined. V0C
eauivalency must be on
a “solids applied”.
basis. Any method must
be ihaepçndently re-
producible. Provision
must tie explicit as to.
whether EPA case-by—
ase approval required.
‘If provision intended
t o be ‘“generic” then EPA
bubble policy must be
met.
-------
irceability Analysis
h. If there is a redesigna—
tion, will this change
the emission limita-
tions? If yes, which
ones and how?
State Submittal
EPA Requirement
Regulation may not
automatically allow for
self nullification upon
redesignat ion of area
to attainment. New
maintenance demonstra-
tion required in order
to drop egulat ton.
Ag,provabilitv (A ...Aable Or Not:
2. Compliance Dates
a. What is
date?
b. What is
date?
compliance
the attainment
Must not be later than
approved or about to
be approved date of
attainment unless
emission reductions not
necessary for attain-
ment. In some cases,
it will be necessary
for the regulation to
specify dates in compli-
ance schedules that are
required to be subnitted
by source to state.
3. Specificity of Conduct
a. What test method is
required?
b. What is the averaging
time in compliance
test method?
c. Is a compliance
calculation or
evaluation required?
(i.e., daily weighted
average for VOC).
d. If yes to “c,” list
the formula, period of
compliance, and/or
T t method must be
expltcitly stated. -
Averagiqg Iime and
application of limit
must be explicit.
Formula must be
explicit.
-------
ibilitv Analysis
State Submittal rp ReQuirement
ADorovabilitv (Ar*rovable or Not
4. Incorporation by Reference
a. What is state authority
for rulemaking?
b. Are methods/rules
incorporated by
reference in the
right manner.
5. Recordkeeping
a • What records are
required to determine
compliance?
b. In what form or units
(lbs/gal, gr/dscf,
etc.) must the
records be kept? On
what time basis
(instantaneously,
hourly, daily)?
c. I es the rule affirm-
atively reautre the
records be kept?
Recor s to be kept.
must e consistent
with units of
compliance in the per-
formance requirements,
including the appli-
cable time period.
There must bea clear
separately enforceable.
provision that requires
records to be kept.
Clarity
a
-------
Enfor eabi1ity Analysis State Submittal EPA Requirement Approvability (Approvable or Not )
6. Exemptions
a. List any exemptions Must be clearly defined
allowed, and distinguishable from
what constitutes a
b. Is the criteria for violation.
application clear?
7. Malfunction Provisions Rule must specify what.
exceedDnces may be
excus , how the
standatd is to be
applied, and who makes
the determination.
-------
• •
I
-------
EPA-450#2-91008
THE CLEAN AIR ACT
SECTION 183(d) GUIDANCE
ON COST-EFFECTIVENESS
By
Ambient Standards Branch
Air Quality Management Division
Office o Air Quality Planning and Standards
Office of Air and Radiation
U. S. Environmental Protection Agency
Research Triangle Park, NC 27711
November 1991
-------
This ieport has been reviewed by the Office of Air Quality Planning and Standards, U. & Eiwimnn anal
Pmtecrion Agency, and has been approved for publication. Any mention of ixade n n o arnier ia1
pn)ducts is not intended to con itutc à dorseznent or recommendation for use.
EPA-45Q 2-9l-OO8
I i
-------
PREFACE
This guidance document was prepared by the Office of Air Quality Planning and
Standards (OAQPS),U.S. Environmental Protection Agency, ResearchTriangle Park,NC
27711. The principal authors are Frank BUnyard and Allyson S 1 wik under-the supervision of
Allen Basala . In addition, the following individuals provided va1uable technical assistance in
preparing the final guidance: -,
Kent Berry, Barry Gilbert, Doug Grano Gretchen May, Nancy Mayer, David
Misenheimer, Brock Nicholson, Donna Nickerson, John Silvasi, Jill Vitas, and Susan
Wyatt of OAQPS; /
Jane Armstrong, Joanne Goidhand, Peter Okurowski,. and Rich Wilcox of the Office
- of Mobile Sources;
Richard Ossias and Jan Tieniey of the Office of General Counsel;
Lynn Hamjian and Robert Judge of Region I;
Tom Hansen and Kay Prince of Region IV;
Candy Garret, Robin Sullivan, Lucinda Watson, and Becky Weber of Region VI;
David Jesson and Rebecca Tudor of Region IX;
Maricruz McGowan of the Office of Policy, Planning and Evaluation;
Kathy Kaufman of the Office of Policy, Analysis and Review.
Questions and comments should be directed to Frank Bunyard at (919) 541-5297 or FTS 629-
5297. -
-------
TABLE Of CONTENTS
Iri t rO duCtiOfla.zidP)flpose • • 1
S
‘Status ofNonattainmentofOzon AirQua1ity -.: 1
.
FundamentalsofCost-Effecdveness 5
Role of Cost-Effèctiveness
in State Implementation Plans . ......... . •..... . 7
Important Considerations for
Cast.Effectiveness Analysis 11
EstimationofEmissionReductions . 11
RuleEffectiveness 12
RulePepecration 14’
Cost-Effectiveness Threshold Values -
and Geographical Va iability 14
Multiple Pollutant Considerations
andAssigninentofCosts ....... 1.
Applications of Cost-Effectiveness Analysis 21
Modeling NOx and VOC 21
ERCA.14—PC Soft’ are capability . 21
Conclusion 22
Endnotes 23
BibliographyofCrossReferences 25
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INTRODUC1 ION AND PURPOSE
On November 15, 1990, the President signed into law the new Clean Air Act (Act).
,hich was passed by an overwhelming majority’ in the Congress, PLiO1-5 9, codified at 42
U.S.C. sections 7401,-7671q (1991). The passage of the Act was in part an endorsement of
market-based principles—innovative mechanisms ‘through which cleaner air and better health
for the Nation’s citizens ‘san be atMiiied. Onf type of market-büed principle is cost- ffective,
emission-reduction strategies. Cost-effectiveness is encouraged in Title I, Subpart 2, section
183(d) of the Act, which, statôs “ [ w]ithin 1 year after the date of the enactment of the Qean
Air. Act Am ndments of 1990, the Ath__titor shall provide guidance to the States to’ be
used in evaluating the relative cost-effectiveness of various options’ for’ the control of
emissions from existing stitionary sources of air pollutants which contribUte to nonattainment’
of the national ambient air quality standards for ozone. ‘ -
In, keeping with the Act’s endorsement of market-based principles, this document is
aimed at achieving, at lower cost, the compliance milestones for emission reductions to attain
and maintain the national ambient air quality standard (NAAQS) for ozone. This document
provides illustrative guidance on how to compare various types of control measures (i.e.,’
process changes, add-on controls). In addition, it provides a list of references th t can serve
as cost-analysis guidance The illustrative guidance and cross references are helpful in
designing cost-effective strategies for State implementation plans written to fulfill section 110
and Tide I, Part D requirements of the 1990 Act.
Furthermore, it should be made clear that this document focuses primarily on -
determining the cost-effectiveness of stationary source strategies. However, EPA recognizes
that States will also need to consider mobile and area sources whendesigning their overall
control strategies. Consequently, EPA has included some information on mobile sources, but
this information is meant to be used only as an illustration and is not the focus of this
document.
STATUS OF NONATrAINMENT OF OZONE AIR QU4LITY
As of October 26, 1991, there were 98 areas in violation)of the ozone,ambient air
quality standard.’ Table 1 gives a listing of those nonattainment areas, their respective design
values, and classifications. Except as noted in the table, the areas comprise -consolidated
metropolitan statistical areas (CMSA’s) or metropolitan statistical areas (MSA’s), as defined
by the U. S. Department of Commerce. The areas are ranked according to ozone desigrr
values based on monitoring data over the 1988-1990 time period. In addition, the table lists
the classification status of each area based on two factors—current design values and the area
classifications referenced in Subpart 2, section 18 1(a) of the new Act. This table gives -
insight into the level of control for which individual States should strive in designing their
State implementation plans. More specifically, classification indicates the n ed for emission
reductions—I.e., in general, iffcreased severity of honattainment requires greater emission
reductions.
1
-------
TABLE 1. THE STATUS OF NONATTAINMENT OF OZONE AIR QUALITY
LOCATION DESIGN VALUE . CLA
Los Angeles-South Coast Basin 0.330 ____
Southeast Desert Modified CA 0.240 Severe- 17
Houston-Ga1veston-Br zoria DC’. -- 0.220 Scvexe-17
New York NJ-NY-Cr CSMA - 0.201 Sevem-17
Baltimore MD 0.194 - Severe-iS
San Diego CA 0.190 Scvere-15
Chicago-Gary-Lake CO. IL-IN 0.190 Severe-17
Philade!phia-Wilm-TrentoiI PA-NJ-DE.MD .• 0.187 Severe-iS
Milwsrnfrfi’.Racine WI 0.183 Severc-17
Muskegon fl 0.181 Serious
Sheboygan WI 0.176 Serious
Greater Connecticut 0.172 Serious
Ventura Co. CA 0.170 Severe.1S*
San Joaquin Valley CA 0.170 Serious
El Paso TX 0.170 Serious
Manitowoc Co , WI*S 0.167 Moderatc
Springfield (Western MA) MA 0.167 Serious
Bostcn-Lawrence-Worecster MA 0.165 Serious
Washington, DC-MD-VA 0.165 Scripus
Portsmouth-Dover-Rochester NH 0.165 Serious
Huntington-Ashland WV-KY-OH 0.164 MOderaze*
Baton Rouge LA 0.164 Serious
Providence RI (all Ri) 0.162 Serious
Atlanta, GA 0.162 Serious
Beaumont-Port Arthur TX 0.160 Serious
Sacramento Meti CA 0.160 Serious
Charlotte-Gastonia NC 0.158 Moderate
Knox & Lincoli Con. ME j 0.158 Moderatc
aeveland-Akron-Lorain OH 0.157 Moderate
Cincinnati-Hamilton OH 0.157 Moderate
Sc. Louis MO-IL 0.156 Moderate
Portland ME 0.156 Moderate
Parkersburg WY 0.152 Moderate
GICCOSbOEO-WS-H Point NC 0.151 Moderate
Pittsburgh-Beaver Valley PA 0.149 Moderate
Kewaunee Co.’WI 0.147 Moderate
Louisville KY-IN 0.149 Moderate
Atlantic City NJ - 0.145 Moderate
Deu oit-Ann Arbor MI 0.144 Moderate
SOURCE Designadon of Areas for Air Quality Planning Purposas 56 PR 56694, U.S. EPA, November 6, 1991.
* Indicates 5% classification change. ‘Indicates an area not a CMSAIMSA.
2
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TABLE 1. THE STATUS OF NONATFAINMENT OF OZONE AIR QUALITY (cont’d)
LOCATION DESIGN VALUE CLASS
Grand Rapids MI 0.143 Modraate
Sail Lake City UT 0.143 Mâdexate
Jefferson Co NY 0.143 Marginal’
Sail Lake City UT 0.143 Moderate
Dayton-Springfield,OH 0.143 ‘ Moderate
Richmond-Petersburg VA 0.142 Moderate
Phoenix AZ - 0.14 1 Moderate
Reading PA 0.141 Moderate
Raleigh-Durham NC 0.14 1 Moderate
San Francisco-Bay Area CA’ 0.140 Moderate
Dallas-Fort Worth TX 0.140 Moderate
Edmonson Co KY” 0.140 Marginal’
Santa Barbara-Santa Maria-Lompoc CA 0.140 Moderate
- Memphis Th-AR-MS 0.140 Marginal’
Toledo OH 0.140 Moderate
Miami-Fort Laudcrdale-W. Palm Beach FL 0.138 Moderate
Monterey Bay CA 0.138 Moderate
Charleston WV 0.138 Moderate
Nashville Th 0.138 Moderate
Lewiston-Auburn ME 0.137 Moderate
Allentown-Bethiehem-Easton PA-NJ 0.137 Marginal
Owensbom KY ‘0.137 Marginal
Harrisburg-Carlisle-Lebanon PA 0.136 Marginal
Canton OH 0.135 Marginal
Knoxville iN 0.135 Marginal
Poughkeepsie NY 0.134 Marginal
Youngstown-Warren-Sharon OH-PA 0.134 Marginal
Birmingham AL 0.133 Marginal
Hancock & Waldo Cos. ME” 0.133 Marginal
Johnstown PA 0.133 Marginal
Cherokee Co SC” 0.132 Marginal
Buffalo-Niagara Falls 0.131 , Marginal
Columbus OH 0.131 Marginal
Kent & Queen Anne’s Co MD” . 0.131 f gjp J
Lake Charles LA 0.131 Marginal
RenoNV 0.131 Marginal
Seattle-Tacoma WA 0.13 1 Marginal
Norfolk-Virg. Beach-Newport N VA 0.130 Marginal
Sussex Co DE” 0.130 Marginal
SOURCE Designation of Areas for Air Qualijy Planning Pwpares 56 FR 56694, U.S. EPA, November 6, 1991.
‘Indicates 5% classification change. “Indicates an area not a CMSAIMSA. S
3
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TABLE 1. THESTATUS OF NONATFAINMENT OF OZONE AIR QUALITY (cont’d)
LOCATION DESIGN VALUE CLA
York PA 0.129 Marginal
Tampa-St. Petersburg-Clear FL. 0.129 Margi
Walwonh Co WI 0.129 Marginal
Scranlon-Wilkes-Barre PA 0.129 Marginal
Altoona, PA MSA 0.129 Marginal
Erie PA 0.129. Marginal
Portland-Vancouver OR-WA 0.128 Marginal
Mancbcster-Nashua NH 0.128 Marginal
Mbany-Schdicctady-Troy NY 0i28 Marginal
Jersey Co ft.s* 0.128 Marginal
Essex Co NY** 0.127 Marginal
Door Co WI 0.126 Marginal
Lexington-Fayeue KY . 0.126 Marginal
Lancaster PA 0.125 Marginal
SmythCoVA’ 0.125 Marginal
Evansville fl 0.124 Marginal
Paducah CO KY 0.124 Marginal
Indianapolis IN 0.121 Marginal
South Bend-Elkhast IN 0.121 Marginal
Kansas City MO-KA 0.120 Submarginal
SOURCE: Designation of Areasfor Air Quality Planning Purposes, 56 FR 56694, US. EPA, November & 1991.
* IndiCates 5% classification change. • Indicatcs an area not a CMSA/MSA.
4
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FUNDAMENTALS OF COST-EFFECTIVENESS
Cost-effectiveness analysis is ozie of many tools available to analysts and &isicm -
makers, involved in environmental quality management. In the bmacfesr sense, cost-
• effectiveness analysis is used to rank a set of least-cost alternatives which achieve differing
degrees of air quality improvement or health risk reductions. As used in this guidance, cost-
effectiveness analysis is a procedure for eva1ll ring alternarivei to niinimi the cost of
attaining and m2intaining the ozone NAAQS inaccordànce with Title I and other related Act
requirements. These air quilicy or health risk reduction goals are pit-determined policy
objectives. For more information on concepts and definitions of cost-effectiveness, refer to
the paper by Walton and Basala, “Cost-Effectiveness Analysis and Environmental Quality
Management,” listed in the bibliography.
Ozone is a secondarily-generated air pollutant. It is the product of nitrogen oxides
(NOx) and volatile organic compounds (VOC’s) in the presence of sunlight. Consequently,
this guidance illustrates the evaluation of measures to control these ozone precursors. Given
the emission reductions required to attain and maintain the ozone NAAQS over some period,
the costs of achieving these emission reductions are estim ’ed and compared among
alternative strategies.
Costs for alternative measures may not dccur evenly across the time period of.
evaluation. For example, investment costs tend to occur prior to outlays for operation and
mainteziance. There are two common ways for the estimation and evaluation of costs over
time: (1) the levelized method, and (2) the present value method. The leveized method
adjusts investment and operation and maintenance costs so that they are equivalent to a yearly
payment that remains the same over the analyzed time period. The present value method
adjusts investment and operation and maintenance costs so that they axe equivalent to a given
sum expended today. The Cal(fornia Clean Air Aci Cost-Effectiveness Guidance discusses
both methods and is referenced in the bibliography. The OAQPS Control Cost Manual is also
referenced in the bibliography and presents the levelized method, as well as engineering
approaches to cost estim2rion.
Care shouldbe taken in defining “cost.” Costisameasureof worth assigned to inputs
(e.g., materials, fuel, ductin ) and activities (e.g., design, fabrication, operation) used to
provide emission reductions. Most of these costs are explicit or are costs for which one could
produce an expense voucher. However, other costs axe implicit. Although we cannot produce
a voucher for these costs, they are not any less real. For example, if additional down time ax
a production facility is required to install a pollution control system, the foregone output
should be valued and included as part of the cost of pollution control.
Cost may include purchase and installation of control equipment, as well as the annual
cost of operating, maintaining, and insuring the equipment. In addition, there may be costs
ancillary to the equipment or its operation such as operating permits, monitoring, and
compliance certification. Undercerrain circumstances, control requirements may result in
5
-------
higher product rices and concomitant reductions in output and employment. These output
and employment adjustments may also be considered costs. Although such adjusiments are
not reflected in the cost-effectiveness calculations described in this document, in su”
instances, these costs may be important.
An important consideration in addressing the costs of control alternativesis the
identification of the baseline . Within a given time fram , if certain pollution controls are
already in placó or already required under federally-enforceable provisions at the emission
source, then the costs Of ‘these controls represent the baseline.* In such a situation, it is the
incremental costs of installing and operating additional technologies—i.e., the, difference in
total control costs before and after a new technology is installed-.that axe relevant for cost-
effectiveness analyses.
Application of cost-effectiveness analysis provides insight into the potential savings
from lower-cost measures implemented to achieve the ozone NAAQS in accordance with
Tide I and related requirements. Figure 1 provides an illustration of strategies for achieving a
desired level of air quality. Strategy A is the dominnnt control strategy because it represents
the least-cost method of attaining the 0.12 ppm ozone NAAQS. A hypothetical dominant
control strategy could be based on the following: (1) various lower-cost, add-on contmls for
stationary sources; (2) enhanced inspection and maintenance; or (3) economic incentive roles
(outlined in section 183(g)(4) of the Act) such as marketable permits. In Figure 1, Strategies
B and C arc inferior strategies.
Figure 1. Illustrative ConccptofCntmt Strategy Dornin ncc
.1
ai S i
ÔB’
I ô A
i2
Air Quality
In other words, if a source is required to comply with pre-exiscing (prior to Act Amendments) requirements—either
adopted or not yet adopted by the State - that the costs of those controls should be placed in the baseline, and not in
the additional costs of control for the purpose of cost-effectiveness detemtination.
6
-------
Figure 2 provides an illustration of two alternative strategies that might be
implemented in a nonattainment area. Path A and Path B have overlapping, welt-defined and’
low -costcontro lmeaswes. When these control measures are implemented, div gencc in
costs occurs as path A pursues process control opportun ties (e.g,, substinidon of high solids
or waterbome coatings for spray booths In specialty coating operations) and Path B pursues
add-on controls for ourccs. Path A becomes the dominant strategy because it reduces
emissions at lees cost per ton than Path B Path B therefore becomes the infenor strategy
ROLE OF COST-EFFECTIVENESS IN STATE iMPLEMENTATION PLANS
After thC EPA promulgates national ambient air quality standards, the Act requires
States to develop and submit implementation plans for EPA approvaL State implementation
plans (SIP’s) contain enforceable regulations that provide for attainment and maintenance of
the NAAQS.
Figure 2. Impact of Control Strategy Selection
on Emission Reduction Costs
I
4
11
I
Paths A, B
4’
•1’
I
Path A.,
Total Emissions Reduction
7
-------
To select a control strategy, States must initially identify mandatory control measures
that are required by the Act, such as the reasonable further progress requirements, reasonably
available control technology (RACI’) for stationary sources, volatility rules for fuels, and
inspection and maintenance (J/M) for mobile sources. In addition, the amended Act requires-
that control measures adopted or required to be adopted under the p ie-amended Act iemaln in
effect [ section 193]. Therefore, these mandatory control measures must be ado xed and
retained for certain nonattainment areas. Beyond thesc’consuBints, States may select cost-
effective, discretionary measures to attain and maintain the ozone NAAQS.
Figure 3 iliustrates the process of selectinl a coSt-effective control strategy. As the
chart shows, the first step in the -selection of-discretionary control measures is the
‘determinatipnof required emission reductions. - Two inputs for determining these reductions
are the following:
o A well-defined emission inventory that includes (I) an understanding øf
the relationships between emission factors (e.g., amount or rate of
emissions) and the parameters (i.e., inputs used in the production
process such as labor and materials) affecting production of marketable
goods and services in the economy, (2) speciarion of VOC’s in terms of
- photochemical reactivity, (3) the implications of econon growth on
• . projection of quantities, and (4) the implications of geographical
distribution of future emissions for a nonattninrnertt are& For further
- information, see EPA’s guidance, Procedures for Preparing E,nLçsiot&s -
Projections.
- o Air quality modeling for the relevant emissions inventory. Modeling
tropospheric ozone as a criteria pollutant involves a complex set of -
relationships. These relationships characterize the atmospheric chemical
reactions that occur between those emissions that function as precursors,
primarily VOC’s and nitrogen oxides. Whenihe linkage between the emissions
inventory and air quality (design value) has been defined, the emission
reductions required to meet attainment can be determined. The result is an
environmental objective or target The Urban Airshed Model is available to
States to calculate the spatial and temporal concentrations of ground level
ozone within urbanized areas or regional urbanized areas, such as the
Northeastern United States (See Yocke, et. aL, listed in the bibliography).
The second step in the process of selecting a cost-effective control strategy is to
catalog ali the conu l possibilities by some measure of cost versus environmental -
improvement. The proxy’of cost-per-ton ratio is widely used in EPA analyses for developing
regulations for individual source categories. The required inputs for this measurement call for
the development of (1) a measurement that tracks control performance such as control
efficiency or emission reductions per unit of time or production, and (2) cost (engineering
cost)- algorithms--mathematical expressions of the relationships between capital and operating
8.
-------
costs and engineering-parameters, such as size and production rates. Based on a technical
assessment of performance and costs, costs per ton of emissions reduction are calculated for
each control measure.
The third step is to identify sevdal control strategy options, including the least-cost -
control strategy for the thrget emission reductions. Identification of control, strategy options is
performed by combining various control measures and evaluating the emission reductions and
incremental cost for each measure to derive a total incremental cost for implementation of the
entire strategy. Different strategies are developed iteratively in this manner to ensure that the
• least-cost strategy is identified. Mathematical progrRmnhing techniques arc sometimes
appropriate to mnke this determination. It is irnportaz t to note thit the cost-effectiveness ‘of a
given control strategy may be sensitive tO the order in which individual control measures are’
applied. For example, if add-on control measures controlling 90 percent of emissions are
applied to a stationary source before, after, or simultaneously with reformulated production
inputs, the cost per ton of emissions reduced would vary between the three scenarios.
To this point, the process of identifying the least-cost control strategy is
straightforward. However, there are policy. (growth versus environmental tradeoffs) and
socio-economic issues (employment dislocation and househqld sector impacts) that may not
be quantifiable, or not readily quantifiable, in a least-cost mathematical progra miing.
smicture. In addition, there may be implementation and enforcement issues, including the
division of certain monitoring and certification responsibilities among various governmental
entities and the regulated sources, that may not be quantifiable in this context. Control
strategy selection is therefore a multi-attribute decision. In addition to costs, policy, socio-
economic effects, and certain hnplementation and enforcement considerations may also factor
into the decision.
As a further caveat, there are other issues affecting cost-effectiveness that have yet to
be mentioned in this guidance Baseline emission level, specification of emission reductions,
rule effectiveness, and rule penetration are important factors that may influence the cost-
effectiveness calculation and possibly the outcome of the control strategy selection. A
discussion of these concepts is presented further in this document. Additionally, speciation
may be important in the reactivity Of various compounds and how those reactive compounds
relate to ozone formation. The Agency position on reactivity is that all vol rt1c organic
compounds, except for those designated in thC Federal Register as being negligibly reactive 2 .
are of equal importance, insofar as the mandatory 15 percent reductions for all nonartainment
areas classified as moderate or above. Reactivity, however, becomes important in modeling
for demonstration of attainment and maintenance of the NAAQS. There is more discussion
On reactivity and its impact on cost-effectiveness in the C c l jfornia Clean Air Act Cost-
Effectiveness Guidance (See Bibliography at the end of this document.)
9
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Figure 3. Process for Selection of Cost-Effective Control Strategy
Enilssns
Develop Control Measu s
•y’.
Select
on
Stritegy
10.
DevelOp Cost Funàtions
•Detern
Râducthns
051 perTon
Lcast Cost
Strategy
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IMPORTANT CONSIDERATIONS FOR COST-EFFECTIVENESS ANALYSIS
Estimation of Emission Reductions
The manner in which reduced emissions Pare derived can affect the cost-effectiveness
value. To bó consistent with EPA guidance for the development of emission inventories,
projections,of emissions, and other guidance .zelated to traeking emission reductioi&, the
est m tion of emission reductions is baSed on the following:
0 determiflation of baseline emission level
Baseline emissions reflect. actual emissions in the nonatt inment area [ sections
182(a)(1) and 182(b)(l)(B)]. Pmtcsjons are to be based on conditions thai exist
during the peak ozone season of the year of enactment of the Clean Air Act
Amendments, i.e., 199O. Reasonable further progress (RFP) requirements
must use actual emissions, with certain exceptions as specified in the Act
section 182(b)(1)(D). Refer to the upcoming guidance on cstimation of
emission reductions for RFP planning due out in the spring of 1992.
o specification of emission reductions
Emission reductions a le calculated using the baseline emission level as
descnbed above as the reference point from which expected emission
reductions arc derived. Emission reductions are either actual or allowable
depending upon the methods used to determine post-control emissions within
the attainment plan. If the post-control emissions arc based on an enforceable
emission rate, some allowable operating, capacity and an anticipated operating
schedule, then the emission reductions are construed to be allowable emission
reductions. Conversely, if post-control emissions are determined based on
actual operating conditions (verified by compliance certification), then the
emission reductions arc considered actual emission reductions. Acconling to
the EPA guidance, Procedures for Preparing Emissions Projections, States
must identify whether the emission projections arc allowable or actuaL For the
purpose of identifying control strategy options, the emission reduction
calculation should be modified for the following: (1) nondiscretionary
emissions limitations that will apply in the future [ e.g., maximum achievable
control technology (MACI) regulations], (2) anticipated regulations that will
provide sources with additional operational flexibility (e.g., marketable - -
permits).
11
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Rule Effectiveness
Expected costs and emission reductions for a given control strategy to 2tt iTL and
maintain the ozone NAAQS may not be the same, as the realized costs and emission
reductions. More often than not, when the expectations for a control strategy are not realized ,
the emission reductions are than anticipated. , -
Rule effectiveness reflects the ability, or lack thereof, of,a regulatory programio
achieve all the emission reductions possib1e. through full compliance by all sources all the
time; For stationiry sources, the EPA presumes a rule effectiveness of 80peràent for State
implementation 1an nice unless the State demonstrates ,a higher figure is appropriate for a’
source category. -
By calculating cost-effectiveness numbers assuming 100 percent rule effectiveness
when rule effectiveness is less, the amount of emissions reduced will be overestimated,
resulting in an underestimate of the cost per ton of emissions reduced. This potential effect is
illustrated in Table 2.
As an example, suppose a cdn ól igency determines that a particular source category
has uncontrolled emissions of 2500 tons per year. The agency believes that an objective of
90 percent emissions reduction is possible and specifies some allowable rate based on some
output parameter, such as pounds of VO emitted per pound of high solids coating applied.
The source ‘category installs control devices that are supposed to control at 95 percent control
efficiency. With 100 percent rule effectiveness, emissions axe leduced by 2375 tons per year
(2500 tons/year x 0.95). However, rule effectiveness of less than 100 percent may result for a
variety of reasons, including equipment leaks and failure to maintain specified operating
conditions (e.g., flame temperature). Using EPA’s default value of 80 percent rule
effectiveness, the estimated emissions reductions are only 1900 tons per year (2500 tons/year
x (0.95 x 0.80)). Improved monitoring and,enfoitement of presently regulated sources, more
inspections, improved record keeping and reporting, and colTective actions should be
examined for enhancement of rule effectiveness, emission reduction potential and cost-
effectiveness. 6 This is not to say that rule effectiveness is the only way in which to achieve
additional emission reductions. Enhanced rule effectiveness should be compared to other
methods of achieving reductions.
12
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TABLE 2. AN ILLUSTRATIVE SENSITIVITY ANALYSIS OF RULE EFFECTIVENESS
Control
Efficiency
(%)
Rule
Effectiveness
(%)
Emissions
Reductions
(tonslyr)
Post-Control
Emissions
(lons/yr)
Control -
Cost
($/ton/yr)
95
100
2375
f ’ 125
632.
95
90 -
2138
363
702
95
85
2019 -
- 481
743
95
80
1900
600
789
Basis for Analysis:
(1) Uncontrolled source category emits 2500 tons per year
(2) Control cost for source category a $13 million per year
13
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Rule Penetration
Rule penetration is closely related to the rule effectiveness concept. The term is
defined as -the excenuo which a regulition may cover emissions from a source cazegory. For
example, a rule promulgated for Stage I vapor recovery atgasoline stations and bulk
terminals might exempt same sources from the vapor recovery requreinent if the gasoline is
delivered from out-of-state. In this case, the rule would not cover all emissions from this
source category. Exemptions from a given rule may decrease the rulç penetration and
therefore result in less emission reductions from a source category. Authorities may therefore
wish to regulate additional sources of emissions in an attempt to achieve emission reduction
progress requirements. Cost-cffectivenàs considerations may be one of the factors decision.
makers must consider in determining the degree of penetration for a given nile.
Cost-Effectiveness Threshold Values and Geographical Variability
Cost-effectiveness should be used with caution in making decisions for implementing
control strategies. Decisions based on one universally-applied deth1 g value ($Iton) may leave
some nonattainment areas short of target emission reduction requirements and cause other
areas to overshoot their targets. For example, nonattainment areas classified as severe or
extreme may need more expensive controls at the margin—for each additional unit of emission
reduction--than marginal or moderate nonattalnm nt areas. Similnrly, variability in the
average cost of control among nonanainment areas is likely to be the norm. Figure 4 presents
the modeling results of a control strategy study of 81 nonattainment areis using 1987 to 1989
ozone monitoring data and illustrates this variability. 7 It is important to recognize that the
inciwuiental costs of control ax the margin may not reflect the average cost-effectiveness
across these areas.
The marginal cost per ton of reduced emissions is likely to vary for the following
reasons:
o sources available and selected/or control
The marginal cost of control for a nonatrainmenc area depends upon the mix of.
sources available for control and the various control measures needed to reduce
emissions within and across source categories. The potential variability in
emission reductions from source categories across nonattainment areas is
displayed in Figure 5. The graphic represents the lower cost measures
available to the selected nonattainment areas for attainment and maintenance of
the ozone NAAQS. Within a given nonanainment area, there may be more
reductions available from mobile sources rather than large point sources.
14
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Figure 4. Cost-Effectiveness for Nonattainment Areas
A profile of CMSA’s SA’s by Avg. Cost perTon
Projection Year—2010
:1’ ‘•
15
‘ : :
i ;
$l000b,
C ,,
4)
1 ’•
V ,
0
0
bO
‘c.$ 1000 tau
0 10 20 30 40 50 60 70
Percent of Nonattainment Areas
MarginaWoderate Seiious 1 Severe/Exireme
soukcE “Ozone Nocauainmau Analysis
Clean Afr Act An,endxñentg of 1990
Bya aP cbaii,Inc.forusEpA.sep 1991
-------
Figure 5. Perce itage .ofErnission Reductions
by Source Categoiy
for Selected Nonáttainment Areas.
::::::::I:::::::::::::::::::::::::::::::::::J
I .
I
I
I
sedous
Nonattainment Areas
I
Notes :
o Large point sources are defined as those sourcesemitdng great than 100 tons per.year for. VOC.
• o Area sources are those entitLing less than 100 tons p year.
o The mobile source category does not include off-highway vehicles such as construction equipment, aircraf I
• agricultural and forestry equipment, locomotives, and vessels. . .
• o Projection Year—2010 . . .
16
•5o
.—
r u
‘u.
• E 30 .
(4 4
°‘2O
1.10.
‘0.4
I
A
.scvz
•C egory ’
C.
•SOUR ‘zone Non2thlflll)}Pnt Analysis
Clean Air Act Amendments of 1990”
By E.IL Pechan,Tnc. for US EPA Sept. l99 1..
-------
o baseline control levels
Some nonattainment areas may have already achieved the lower cost emission
reductions available. Higher cost control measures might be required to reduce
any idditional units Of emissions. -
o degree of control required
The amount of emissions reductions necessaiy to achieve attainment varies
across nonattainrncnt.areas and.therefore affects the relative tharginal costs of
controL These varying amounts of control are explained by differences in such
factors as size and location of sotuces is well as daily and seasonal fluctuations
in temperature, emission rates, and wind patterns.
o control techniques
The marginal cost of control’ is dependent upon the control measure selected to’
jchieve additional emission reductions. In some instances, process change may
be less costly than add-on controls, or rule-effectiveness enhancement less
costly than greater rule penetration. I
Table 3 illustrates.various VOC control measures and relative cost-effectiveness.
These costs are national averages and represent cunentcstimates. 8 Ag in, it should be noted
that the marginal costs of VOC control measures for a given nonaltainment area may differ
from the national averages for these source categories. It should also be emphasized that
some of these measures are mandatory while others may be discretionary in termS of
combining various measures for an overall control strategy. In general, process changes are
lOwer in cost than end-of-pipe incineration controls on small sources (including small marine
vessels). Rule effectiveness has been added as a “source category” to the table because
improving rule effectiveness may help to achieve emission reductions. More inspections,
improved record keeping and reporting, and corrective actions represent some of the elements
identified in the March 31 Rule Effectiveness Study Protocol. 9 It should be noted that
emission reductions resulting from role effectiveness iuip&uvements occurring before 1990 and
that are built into the emission inventory baseline are not creditable to the 15 percent progress
requirements. Additionally, rule effectiveness is not withOut costs. Greater enforcement
and/or inspection and maintenance procedures cost resources. Finally, transportation control
measures that achieve actual emission reductions are also available, such as employer-based,
ride-sharing programs, mass public (rail or bus) transit, van pooling, and parking restriction -
ordinances in centralized business sections of metropolitan areas. A more comprehensive list
is included in section 108(b), of the Act. ‘
17
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TABLE 3. ILLUSTRATWE VOC CONTROL MEASURES AND COST-
EmcTWENEssa
Source Category
•
Control Measure
‘
Cost-Effectivefless
($perton)
Architectural Coatings
Application of High Solids
Coating Technology
Savings
.
Stage II Refueling
VaporBalance Fuel Recovery
770 to 13 0
Treatment, Storage, and
Disposal Facilities (RCRA)
air emissions
Tank covers, controls on
aerated treatment and storage
tanks
- 190
,
Enhanced Inspection and
Maintenance
Higherperformance standards
1400 to 5300 1)
Volatility rules
Reid Vapor Pressure 7.8 psi
140
Marine Vessel
Loading/Unloading
Ventilati n System and
Incineration
l0 00to5O,000
Small Source Coating
Operation
Ventilation System and
Incine ration
- 10,000 to 20,000
Rule Effectiveness
‘
More inspections, Corrective
Actions
May lower the cost of
controle
Consumer Products
Substitute stick applicators
for aerosol propellants
400 and higher
a B. H. Pechan and Associates, under contract with the U. S. Environmental Protection Agency, Ozono
Non tt nment Analysis Clean Air Amendments of 1990, September 1991.
b U. S. Environmental Protection Agency, Office of Mobile Sources, Pnh iced Inspection & Maintenance Briefing,
October 1991.
CRthttoT e2
18
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The control measures listed for NOx emi sion reductions in Table 4 represent an
illustration of various combustion sources to which process changes, such as low NOx
burners, staged air combustion, and add-on controls, namely selective catalytic reductioll,
could apply. The range in costs per con is’ due to factors such as flu& gas flow rates, fuel,
boiler configuration (tangential, wall), and application. More information on these types of
controls can be found in the July 22, 1991 draft report encided, “Cost Effectiveness of
Stationary Sources for VOC and -NOx Controls,” preparcd by E.IL. Pechan and Associates for
the U.S. Environmental Protection Agency. “ ‘
As described above, control requirement needs and niarginal costs. and the anticipated
environmental quality improvements vary across nonattainrnent areas; therefore,’ setting
control limits based on single S/Ion values may not be appropriate. ‘ -
Multiple Pollutant Considerations and Assignment of Costs
In an unencumbered world, a control strategy would target a single pollutant for
achieving an environmental objective. This eliminates problems of double àounting—paying
for the same controls twice for two separate environmental objectives. In addition, such an
approach eliminates b a ieiin the process of developing the least-cost envelope of dominant
controls. Unfortunately, there are pragmatic problems with attempting to assign single
pollutant (S/ton) values to control measures. Oftentimes, control measures being considered
reduce several pollutants. An example is certain types of catalytic controls on combustion
sources (e.g., mobile source tailpipe controls) that reduce carbon monoxide, nitrogen oxides,
and VOC’s. If the environmental objective in a State implementation plan is to reduce ozone,
apportioning higher weights to nitrogen oxides and VOC’s relative to carbon monoxide may
be appropriate in transportation control measures, such as employee trip reductions. In
another example, some controls (e.g., Stage II refueling) desijned for a State implementation
plan may reduce toxic pollutants that may be subject to Title ilL The cost-effectiveness
computation should-include reductions in the ozone precursors. However, the incidental
reduction in toxics may be considered as a secondary benefiç and should be noted.
Discussion on various ways to apportion weights per pollutant for assignment of cost-
effectiveness is presented in the Cal jfornia Clean Air Act Cost-Effectiveness Guidance. The
EPA hasno preferred option for assigning costs for multiple pollutants, as the method used
would vary with the control scenario.
19
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TABLE 4. SAMPLE NOx CONTROL MEASURES AND COST-EFFECTIVENESS’
Source Type
.
Control Measure
S
NOx Emission Reduction (%)
- -
Cost-Effectiveness
($ per ton)
Utility Wall or Tangential Coal-
- firedBoiler
Low {Ox Burners
50
.
70 to 830
,
Utility Residual Oil-fired Boilers
Staged Combustion Air
42
310 to 920 -
Utility Tangential Natural Gas or
Coal-fired Boiler
Selective Catalytic Reduction
•
80
.
3900 to 5300
• . -
Utility Natural .Gas Fired Boiler
Selective Cala)ytic Reduction
80 -
2200 to 2860
Industrial Coal-fired Boiler
Staged Combustion or Low Excess
Air
36
•
Savings to 380
-
<100 MM Bin/Hr Natural Gas
Flue Gas Rccirculation
31
4200 to 4700
>100 MM Bin/Hr Natural Gas
- Flue Gas R circulalion
31
- 1000 to 1100
<100 MM Bin/Hr Natural Gas
Selective Catalytic Reduction
.
80
- 12,700 to
17,400
>100 MM Bin/Hr Natural Gas
Selective Catalytic Reduction
- 80
2100 to 3200
Gas Turbines
Water Injection
70
1000 to 1700
Gas Turbines
Selective Catalytic Reduction +
Water Injection
70
-
- 2400 to 3900
,
Internal Combustion Engines
. Change Mr-Fuel Ratio
30-
.140 to 930
Internal Combustion Engines
Selective CatalyticReduction
80
- 120 to 910
Process Heaters
Staged Combustion Air
45
. Savings
Process Heaters (Oil Fired)
Selective Catalytic Reduction
- 90
200 to 4500
a SOURCE E. H. Pcchan end Aiiodatei, under centract with the U. & Envirenmentel Prntcciion Agency, 1991.
20
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• APPLICATIONS OF COST-EFFECTIVENESS ANALYSIS
MQ llnNQ and VOC
Modeling o control strategies that tombine NO, and VOC controls to attain the -
ozone standard may be a difficult problem. As an example, a nonattainment area may
employ the Urban Airshed Model. (UAM) to esthiiate the spatial relationships of ozone
concentration changes to determine oprimni control.strateges by applying a mix of NOx and
VOC controls. Such a model may produce several control strategies that are equivalent in
terms of attaining and m inr ining the ozone standard. For example, preliminary UAM
modeling in the Ventura County portidn of the South Central Coast Air Basin District has
demonstrated that attainment can be achieved by reducing 55 percent of either VOC or NOx,
or a combined strategy of 40 percent emission reduction from both VOC and NOx. 1 ° Cost-
effectiveness analysis can play a useful role in the selection of the least-cost strategy from
three equivalent strategies. The analysis involves a two-staged process with the following.
elements: -
o to ensure efficiency, selection of the dominant controls across source categories
(e.g., low NO burners on industrial boilers) in a cost per ton iterative process
for each of the three strategies, and
o selection of the least-cost strategy from total annual costs perspective for the
area.
ERCAM-PC Software Caeabilitv
Under a contract with E. H. Pechan and Associates, ma., EPA developed a model to
provide States nd local agencies with the capability to analyze emission cdntrol strategies
and costs of emission reductions needed to attain the ozone NAAQS. The model, known as
the Emission Reduction and Cost Analysis Model (ERCAM), was developed from a national
model used to analyze the various legislative initiatives during the debates over the 1990
Clean Air Act Amendments. The ERCAM was developed for a single State, but the model
readily adapts to other States by inserting State-specific emission factors derived from mobile
source emission factor inodelshl. and the Aerometric Information and Retri va1 System (AIRS).
for stationary sources. In addition, EPA has developed a cost-effectiveness model (CEM) for
inspection and maintenance programs that can be used in conjunction with ERCAM. The
model is programmed in dBASEIII Plus and operates on a PC. - -
21
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CONCLUSION,
Cost-effectiveness analysis is a tool designed to identify the least-cost means of
achieving an environmental objective. However, other factors may warrant consideration
prior to adoption of a control sn tegy. With respect to cost-effectiveness analysis; ‘several
considerations are important including rule effectiveness, rule penetration, threshold values,
• and multiple pollutants. A model, ERCAM, ‘when uscd in conjunction with other models,
• does xist to enable States to consider cost-cffectiveness The application of ERCAM,
although not mandated, should prove useful in designing lower-cost control strategies.
22
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ENDNOTES
Designation of Areas forAir Quality Planning Pwposes, 56 FR 56694, November 6,
1991, U.S. Environmental Protecton Agency. .
2 Reqwrements For Preparation; Adoption, and Submittal of Implementation Plans, 56
FR 11387, March 18, 1991, U.S. Environmental Protection Agency.
3 Emission inventory Requirements/or Ozone Swie Implementation Plans, EPA-45014-
91-010, U.S. Environmental Protection Agency, Office of Air Quality Planning and
Standards, Research Triangle Park, NC, March, 1991.
Procedures/or Preparing E’nissions Projections, EPA-450/4-91-019, U.S.
Environmental Protection Agency, Office of Air Quality Planning and Standards,
Research Triangle Park, NC, July 1991.
Guidance on Reasonable Further Progress Requirements will be available in the
spring of 1992.
4 Emission inventory Requirements/or Ozone State Implementation Plans, March 1991,
pp. 10 and 13. -
Procedures/or the Preparation of Emission Inventories/or Carbon Monoxide and
Precursors of Ozone, Volume I: General Guidance/or Stationary Sources, EPA-
45014-91-016, U.S. Environmental Protection Agency, Office of Air Quality Planning
and Standards, Research Triangle Park, NC, May 1991.
5 Workshop for Implementation of Clean Air Act Provisions Relating to Ozone and
Carbon Monoxide Emission Inventories, U.S. Environmental Protection Agency,
Office of Air Quality Planning and Standards, Ràearch Triangle Park, NC, June 4-6,
1991.
6 Memorandum from John Seitz, Director of Stationary Source Compliance Division,
Office of Air Quality Planning and Standards, to U.S. EPA Regional Directors,
Nlmplementation of Rule-Effectiveness Studies,” March 31, 1988.
7 Ozone Nonattainmeiu Analysis Clean Air Act Amendments 0/1990, Draft Report, E.
H. Pechan and Associates, Inc., prepared for U.S. Environmental Protection Agency,
Office of Air Quality Planning and Standards, Research Triangle Park, NC, - -
September, 1991.
8 Ozone NonattainmentAnoiysis Clean Air Act Amendments o/1990, E. H. Pechan and.
Associates, Inc., September, 14991.
23
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9 Memorandum from John Seitz, March 31, 1988. I
10 ModelingofPrèliminaiy Emission Reduction Estimates for Attainment of the National
Ambient Air Quality Standard for Ozone in Ventura County, submitted as part of
Docket No. 90-CA-VENT-i. Referenced in: Federal Register, VoL 56, No. 12,
January 17, 1991, Proposed Rules, p. 1754.
4 . —
11 The EPA is presently completing MOBTTR6, which should be available in thC spring
of 1992. The EPA recommends that States use this model ifatalipossible. In the
mean time, however, MOBILE4.1 is available but does not include the effects of the
Clean Fueled Fleets Prograzns,the Reformulated Gasoline Program, the On-board
Diagnostics Program,. and the Evaporative Test Procedure Changes.
24
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A BIBLIOGRAPHY OF CROSS REFERENCES
Cakfornia Clean Air Act Cost-Effectiveness Guidance, California AirResources Board, Office
of Air Quality Planning and Liaison, September
This document provdes guidance to District agencies implementing the California Clean Air’
Act accárdiàg to.requireinents for cast-effectiveness (i.e, least-cost çnVelope to select
dominant control strategies) analysis prior to a 1option of rules for attainment of air quality
standards.. Appendices provide insight into alternative methods of annuiiB 4 ng costs from a.
time value of money perspçctive. .
E.H. Pechan and Associates, Inc., Cost Effectiveness of Stationàzy S6urce VOC and NOx.
Controls, Draft Report, prepared for the U. S. Environmental Protection Agency, Office of
Air Quality Planning and Standards, Research Triangle Park, NC, July 1991.
This report is a compilation of cost-effectiveness values, including,parameters for cost
equations used in the ERCAM-VOC for all stationaiy sourc control. measures to reduce VOC
and NOx emissions. The report also contains references for sources of cost information used
to develop cost equations. Contact Frank Bunyard U.S. EPA, Office of Air Quality -
Planning and Standards, Research Triangle Park, NC, (919) 541-5297 or FFS 629-5297.
E. H. Pechan and Associates, Inc., ERCAM-VOC: Description and Applications.(Design
Objectives, Structure and Use of the Emission Reduction and Cost Analysis Model/or Volatile
Organic Compounds), prepared for the U. S. Environmental Protection Agency, Office of
Policy, Planning, and Evaluation, March 1989.
Although dated with respect to the enactment date of the new Clean Air Act, this paper
provides a fairly comprehensive overview of the national ERCAM. The paper desciibes.the
model objectives and structure, including a descriptiOn of files used to model controls and
costs for analyzing impa ts (i.e., emissions, emission reductions, costs) of base programs and
mandatory measures of the new Clean Air Act for four projection yeara through 2010.
Contact: Frank Bunyani, U.S. EPA, Office of Air Quality Planning and Standards, Research
Triangle Park, NC, (919) 541-5297 or FiS 629-5297.
E. H. Pechan and Associates, Inc., User’s Guide for the Prototype State Emission Reduction
and Cost Analysis Model for Volatile Organic Compounds, prepared for the U. S.
Environmental Prote zon Agency, Office of Air Quality Planning and Standards, Research
Triangle Park, NC, October 18, 1990.
This document provides information on the model s uçture, inputs, and outputs. State -
ERCAM is in the process of being modified and adapted for all States. A draft User’s Guide
of the present model is available. Contact: Frank Bunyard, U.S. EPA, Office of Air Quality
Planning and Standards, Research Triangle Park, NC, (919) 541-5297 or FTS 629-5297.
25
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OAQPS Control Cost Manual, Fourth Edition, EPA 450/3-90-006, U. S. Environmental
Protection Agency, Office of Air Quality Planning and Standards, Research Triangle Park,
NC, Januaiy 1990.
Provides a standardized engineering approach to develop cost informktion for conirol systems
for reducing gaseouà and particulate emissions from stationary point sources. Provides a
good tutorial on the dcsctiption of types of cost estimates and annualization methods. The
manual employs an engineering design and parameterization method, using plenty of exan pie
problems to developing capital costs. Contact: EPA Regional Offices or William Vatavuk,
U.S. EPA, Office of Air Quality Planning and Standards, Research Triangle Park, NC, (919)
541-5309 or FFS 629-5309.
Procedures for Preparinl Emissions Projections, EPA-450/4-91-019, U.S. Environmental
Protection Agency, Office of Air Quality Planning and Standards, Research Triangle Park,..
NC, July 1991.
This document provides guidance for projecting emissions to future years focusing primariiy.
on procedures for projecting how the combination of future emission conu ols and changes in
source activity will influence future air pollution emission rates. Contact EPA Regional
Offices or Keith Baugucs, U.S. EPA, Office of Air Quality Planning and Standards, Research
Triangle Park, NC, (919) 541-5366 or FT’S 629-5366.
Procedures for the Preparation of Emission Inventories for Carbon Monoxide and Precursors
of Ozone, Volume I: General Guidance for Stationaiy Sources, EPA-450/4-91-016, U.S.
Environmental Protection Agency, Office of Air Quality Planning and Standards, Research
Triangle Park, NC, May 1991.
This document discusses procedures for.preparing inventories df VOC, NO; and CO for the
purposes of establishing baseline ozone levels in nonattainment areas. Contact: EL
Martinez, U.S. Environmental Protection Agency, Office of Air Quality Planning and
Standards, Research Triangle Park, NC, (919) 541-5575 or FTS 629-5575.
Users Guide to MOBILE4.1 (Mobile Source Emission Factor Model), U.S. Environmental
Protection Agency, Office of Mobile Sources, Ann Arbor, MI, July 1991.
The users guides for MOBTLF 5 and CEM are presently unavailable, but should be available
in the spring of 1992. Contact Terry Newell, U.S. EPA, Office of Mobile Sources, Ann
Arbor, MI, (313) 668-4462 or FT’S 374-8462.
Walton, Thomas and Allen C. Basala, “Cost-Effectiveness Analysis and Environmental
Quality Management,” U. S. Environmental Protection Agency, Office of Air Quality
Planning and Standards; Research Triangle Park, NC, June 1981.
A presentation at the 1981 national meeting of the Air Pollution Conti ol Association. This
paper presents an in-depth primer on definitions, selection of appropriate algorithms for a
cost-effectiveness analysis, and identification of potential pitfalls in the use of cost- -
effectiveness analysis. Contact: Allen Basala, U.S. EPA, Office of Air Quality Planning and
Standards, Research Triangle Park, NC, (919) 541-5622 or FTS 629-5622.
26
-------
Yocke, M. A., et al, “Methodologies for Applying the Urban Airshed Model to Determine th
Effectiveness of Measures to Reduce Ozone Levels in the Los Angeles Air Basin,” April 27,
1989.
A presentation at the 82nd Air and Waste Management Association Annual Meeting, June
1989. This paper summarizes UAM modeling results combining VOC and NOx strategies for
t1 e South Coast Air asin. An èverall view of ozone reduction effectiveness as the criterion
for comparison of alternative conirol strategies is presented. This paper provides anexample
of implementation of cost-effectiveness guidance. Contact: Frank Bunyard, U.S. EPA, Office
• of Air Quality Planning and Standards, Research Triangle Park, NC, (919) 541-5297 or F1 S
629-5297. -
27
-------
S?4 f
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
Office of Air Quality Planning and Standards
Research Triangle Park. North Carolina 27711
‘p
,l p 10 . tC’
OECI31g9 1
MEMORANDUM
- -SUBJECT: Distribution of the Cost-Ef:
Developed i,n Response to
Air Act
FROM: J ehn S. Seitz,
V0ff ice of Air Quality P
TO: (I Addressees
Attached for your information and distribution to your
States is the cost—effectiveness guidance required by section
183(d) for evaluating the relative cost-effectiveness of
emissions control for ozone precursors.
Drafts of the cost-effectiveness guidance were previously
distributed for review by personnel in the EPA Regional Offices;
Office of Policy, Planning, and Evaluation; Office of General
Counsel; Office of Mobile Sources; and Office of Policy Analysis
and Review. Discussions were held with private sector
representatives regarding their views on the scope, content, and
references for this document. The comments of the reviewers have
been addressed in this document.
The application of cost-effectiveness analysis principles
may result in the achievement of ozone air quality objectives at
lower cost. This guidance document should help facilitate the
use of cost-effectivenessrconsiderations in control strategy
design.
If you have any questi6ns or comments concerning this
guidance, please contact Frank Bunyard at (FTS) 629-5297 or
(919) 541—5297.
Guidance
3(d) of the Clean
Attachment
-------
2
Addressees:
Director, Air, Pesticides, and Toxics
Management Division, Regions I and IV
Director, Air and Waste Management Division,
Region II
Director, Air, Radiation and Toxics Division,
Region III
Director, Air and Radiation Division,’
Region V
Director, Air, Pesticides and Toxics Division,
Region VI
Director, Air and Toxics Division,
Regions VII, VIII,, IX, and X
cc: N. Shapiro, OAR (wf attachment)
R. Brenner, OPAR (w/attachment)
l . Cristofaro, OPPE (w/attachiuent)
R. Wilson, OMS (w/ attachment)
R. Ossias, OGC (w/attachment)
J. Calcagni, OAQPS (w/attachment)
Members of the Ad Hoc Work, Group
-------
Thursday
April 16, 1992
Is
-
‘j QP
- .... -
j cr
2 s c.
rM A &C. D
.-
Part. U1
EnvironmëfltaF•
PrOtection Agency
.
4OCFRPartS2. .
- State Implementation Plans; General
Preamble for the. Implementation df TitIe
• I of the Clean Air Act Amendmentsof
1990; Proposed Rule
flC:
CT
‘Fst -uP - C - i n I) :
CA r 4 -U%’ •
- C(cu
.:
rr ( 1o ce t)
5 %; (4s) tJ
-------
ENVIRONMENTAL PROTECTION
AGENCY -
•4OCFRPa,t52
jffiL-S12 0.23
• fl lN2OCO-AD 12
State hnpiementatlon PIans GeeraI
• Preamble for the Implementation of - -
l ltIeIofth.aeanA lrAct
Amendmentsofl l9O •,
AGENCY Environmental Protection
“Agency( A1. .
*cnotc General preamble for future
__ I
5UlMARYTltIeIOftheG IeR nAfrAct
Amen hnants (CAAA) of 1990 revamped
the requirement, for areas that have not
• attained the national ambient air qvaltty
-. standards (NAAQS) for ozone, carbon
monoxide (CO).partlculate matter (PM-.
10 ) ,sulfurdiox lde(SOa) .nifrogen -.
dioxide (NO a). and lead. In addition.
ttIe I made numerous changes In the
requirements for State Implementation
plans (SW.) In generaL Including the
provisions governing EPA’. proceassins
ofSWrevialon s ,uwellasthe
.s. repcronsslons of State failures to meet
the various S W x eqWrementL Many of
• these requirements call for early action
by the States. For example. under title L
St tes wtth pre-enactmint ozone :
- nonaheali ii nt areas Were !o begla ‘.
submitting SIP re ts1oes Sino” ’ . after
• enactmcnt (May15 1991).
‘Thu General Preamble principally
• describes EPA ’. preliminary views on.
how EPA should Interpret various..
provisions of title L primarily thoee .
concerning SiPtevisions required for.
• .noaaItaIv nl , ,t areas. Although the
‘t’e ,al Préamb1 includes various
: stat anbthMSbA s must lake certain.
: actionà these statements are made
pursuant to EPA ’s preliminary
interpretations, and thus do not bind the
States and the public as a matter of law.
-In the near future. EPA will begin to take
• . .‘ : action, pursuant to notice-and-comment
nsIetnriig on SIP revisions submitted
by -theS tates , and issue rules, pursuant
to notice and-c mezd rulemaking.
various title 1 provIsions. During the
L;:1m t periods for those subsequent
members of the public will have
• .-ihe yniLi tyto annment on
rel ant issaesiThis General Preamble
is an.advance notice of how EPA
- generèlly Int.i l. In those subsequent
l kwigs . to take action on SIP
submi,sijn , and to interpret various
tille I ••
FOR FURTHER DIFORMATION CONTACT.
Mr. Brock Nicholson. Chief. Policy
Oevelopment Section. Ozone/CO
—5-.. __
7. GuIda tce on waiver, for mobile iOw .
• easures • -.
C.Pi lculateMatter
LSlatutoiy background .s- ’..
.2. Determination of RAO4/RACr
3. SIPs that demonstrate attainment 5
4. SIPs that do not demonifrate
tlaiment
3). Sulfur Dioxide c
1. DesignatIons . •
2. Classifications
3. Plan submission deadlines
4. Attainment dates
5. Nonatlainment plan pr visio
a. Sow . of SO, policy and guidance
2. Lead
LPuzpose
‘The primary purpose of this preamble
is to provide the public with advance
notice of how EPA generally intends-to
interpret various requirements and
assàdated issues that have arisen under
title I of the CAAJt. The information
33498
• — S. . • .— - •. •
• • . - - - • .J ._ •_ •; .t • . • •.I • -_. .. . •
- , _.•. 5. .. ,•5 5 -‘ ,•. _••.••t.f. - .. - ‘
Federal Register / VOL 5* No.74 I Thirrsday April 16. 1992 1 Proposed Rules
.4’rogarns Branch (MD-IS) it (919) 541.. . 1.Sbtutorybacltground
-5537, for Issues related to ozone or 2. Pee-SIP submittal activities
carbon tnonoxideMr. Eric Ginsburg at . InI1 I O issues .
(919) s- 8n. sulfurDlo,dde / • ‘.-. E Nitrogen Dioxide ‘• -
• Particulate Matter Programi Branch I - S ., •
• • - (MD-is), for Issues related .u1jur.. .,.. j S
S • - dioxIde.partiadateaatter.á1edd Mr.’ . 4 .N lan las
at (919) 541 .5 . :/& . f4 $ PIew (NSR)
___ Permits Programs Bran 5)Joij’ :: NcuaN L . s . t m1t Requirements
issues related to new .oumer LOmtiuctluo bani •
.IJ.S 1 Environmental Protection Agency 2. bsloas uliftil S - S
Research Th ngle Park. Noith C.ro1in - - 3.Dediiable “ens far
V7UMsPiula-Van1 reet( OO- liettleg - . Y
3ImuesrelatedtomobUe - : - ‘ 1.
if ___ __
___ Nolan Ia .nmidan iwlth iqRSl(c). th • k w.flb
Is puI .tt .ked In the Pi ossd Ralá. g -;
category. . -: - Applicability •
A list of died refereems nm” ’ d In mfljbaj lands applicabilIty
ihe appendices which are av.flabls from the ItStallanazy sourca definition
• pub lIcdodmt.A-o 1-3 5at ’IL4OOMStreet. u .Temorsiycanes4bd . okgy
• 5.W.Wulbgtn. D . A 5 . _ 1t ..a A’ • - dimoastratlitis ptn4er$j .
through Ewili be psbIh t ” hr a ubseqtieIt 33. Failure to submit NSR rules by statutory
Federal R*tea. • • • ______
CUTUNE - - - - • II.General
• •- - 3.1 atD,subp azti l.ectio a iiO(to the’
• . • - . • extent not under pollutant-
A.Hlstcq • - - .:
• ____ ‘ g tsbdud l n g seotIo o
poneqdi
___ C req
S. • -“ • - - Reasonably Available Control Measures
-•. ftReIa -LIj betweent1tI IandDoI-
_____ • “3J OOCAAA • - • “p:. - . 0. RedOifflstkfl
• Di. s- ---ie- • • .: •. - 7. ’fl aaItiosi issues
A.Ozos . S LGmo dause
• 2, Cener-J • • - 1V. ‘A Requbements
.IArI ai&aftaa - - A. S Processing Requirements -
3. Moderate - -‘ 2. Completeness
areas • • - lIjJ W J$ • ••
S. Severe area. • • B. and Other Safeguards
5 . • . - : . 1. Background under 1977 CAAA
• nocat’ in”t 2- Available measure. under 1990 CAAA
• - -- -- •- • -• - 3. ApplIcation and timing of the section VS
5. Multistate zo ’agsas • - SanctIons.
5.Mom x id e . - -. C. Federal implementation Plans (Fl ?.)
2. Moderate areas 12.7 ppm and below V. Miscellaneous
2. Moderate areas above 122 ppm - A. Reladov ’hip of fltle I toiitle V
3, 5e 4ou. a. 2. IntroductiOn
5 Nonclassiflable areas 2. Purposes of. SIP
5. MultI-state CO attainment areas • 3. ii 4 rivetal principles for SITe/control
- 5.Areas with significant stationary source -- strategy - • - -
4. Satisfying SIP piindple .
5. Appeoathes to ensure that permits
properly suppoitSWs -
B. Tribal Implementation Etans
C. Section 1799 Requirements
VL Other Requirements
- A. Executive Order 12291 -•
- B. Regt4atory flexiltility Act
-------
T EPAs iJerpreta . of title 1 approlal disapproval of SIP
pro’ ioa. provufed in Ii-e preamble will submitt toncerning NAAQS
also provide a basis (or subsequent EPA nonattainment areas. While this
preamble should reOect the majority of
the SIP requirements under title I.
- unique circumstances or as yet
z•
provided la& s preamble Is thirefore :.-‘comply with the title! provlsldns. For. early yeats following the Noyembei is.
intended to guide States and to help , ,. quldc reference, title! submittals and 1990 enactment of he4 9O CAAA. are
ensure that they prepare and submit - qther ctions concerning ozone and CO - listed chronologically (by the date oath
SIPs orSIPzevl sions that adequately aonattainmentareasrequhed during the action ischp jonTable . - .
— _-‘_.
- Ta8LE—UAJopJEcumoSTa1ESuBMnTALsANoAcnoNs , ) -.
___ ;. ‘ COsL a1h .
I . . Sonre - E Umme - at & .,i
yMw t991(i ds t mer a i tadii. a ’ :
* ieque ons to idy tcttdnJOs ssba-4
.I4 aid jl. .. ..IL ..l iuaama.i (are 45
& s A1aL_ u4 . .
t ‘ ed i &4Ip .al .4 Id beudnisa
141%d.il.IIer.edeio 4 on ed i .eq—te tør earn
• S.. . -
A tequed one n, to dudy boddnlss .e,ba i aim
•. U onde4ad ad -c’ -- 4 240 days slier e naM
• - bbs kiataith 15.1991 St edlallest dale
. o alMP lged2Z.l991L :; .;
5 p q k
- iqiI edeu aiq*ed ,.. i5 f)s...i S.Is at i
• dieito lonto,1A a.
to An* SIP ea’dli to ktçlarned bede VIA
- - ci tewidon lot Ifl ( eu5
cue eea she por di cX0.0fl0) -
euayl5.Iaa1mi a sserap sua -.
• &*n RA ea - -.
P&.ai.&al oni d• onions
‘91WSteed WINgiO :
ByUayl5.lS ($ ’leabs.anssa lei4 : - ‘ -
to Sept ad ,.. ..Ji
$ •
-By Neufldurfl, 19at e e4alIotiiisna.4 .
.
StAted on*W .,Ma uii &1ah .I -
%
•‘ ‘
I .
- . 4
,•.ya . ., .
V
V.
S Atir* VOC WCI ales E O (TG’ un .C1G
-.
St aI NSR P
N
B*ed ierneds let $a. n region ( VOC . NO, RPCI ad
P R Ealuetond li lA) WeSes euoss aais uit region).
c.a & .. - • a
X
V .-
— a
- . -S
4,
4 —
a
a
a
K ..
K
a.
K.
K
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ax
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S..tne easarees N VUT & .. eJeealel _
St b i1 4 t a cerOci meesises (T WsJ
SióM isileon reqii9 ’ g ençloyer bk, tcAtjction p1o rwte 2SS
eatebleconçon ea rededions).
‘&Bid — pregmm
By Nousutiei’15 , l c ’s ais
S tAinil ‘15% SIP” F. .. ineesties S4 O..rg 15% r e’% . W I
.&tmed d as . ,s n in SdIt i oInI bOC. NO, sedts at
to .
SIAtedNSR.. ,,grarn cOI
* g& ineestxes let fa*ies to meet .veeslones
By P&,.uid er IS. 1994 (4 ysas alter enactmenlj:
- .
St ed R deinonsinton ettosing 3% av age snntml reduc.
5on ccnvnencitg S yeaia alter enactmenl
StAnet dea tod eatide ptogran.-
S biiI Siege a progas (or e4lect conçaiable measures ii
Si n piens to onipoate EPAs e sssi n 6agnosec n A s a
— bin).
K
‘Cein SerttaWa 1ons eaay arSually be required before the and S me tone petiod speofied. Cbedi the iwia 4lw4 . n S S doonneni lot specific
s ,.bmbod ne edhedsies. fioo. me NO, ieqkement. c i CAA section Iat(f) W.N be addressed m nçplemenls to the General 9rean* Ie.
— See Preamble dis usaon regarding wTulla_noe elth 54A)tMtaI dates .
t $ de w 5be detayed prvfjrv , PA nAeinakvig
- ‘Aatl ies t oonsathdesigflvaIues>1 7ppnL -
o ‘As L — to title a req renenie - -
-------
13500 - Federal Register I Vol 57. No 74 / Thursday , Apnl 16,, 1992 / Proposed Rules
unrecognized manes are likely to cause are due within 18 months fr rn - achieve a 15 percent reduction in -
caseby.case exceptions to arise.The . edeslgnatIon of eli SO 3 . NO 2 PM- 1o volatile organic cQmpound (VOC)
EPA intends to provide the public with a and lead nonattalnment areas. and - z-emiss ons. and moderate areas must
formal opportunity to comment on the vithIn 2years of redesignatlon far attain the NAAQ In addidon.
previsions ci this preamble. and other zone and many CO nonattainment -. ‘moderate CO notiatta nment areas must.-
Issues that may arise during subsequent areas (withIn 3 years for CO . •-‘ -also attain the NAAQS by December31:.. -
ndemnakings that takeactianonSiP nonattalnmentareaswithdeslgn values -1995.Sulfurdioxide.PM-10 .lead.and ‘
• revisionssubmittedbytheStatesunder leuthanu.7ppni). •, .. N0 3 nonattainmentareasmustalso. - ‘ -,
title land that set out EPA policy on- Note also that these chaxig i apply . meet signlflcpnt statutory milestones
• spriomsaspecbofdfleLThlspreamble notonlyI4des1gnaIednonauRh n1ent — wIthinthe6-yearperiod. ‘ -. -
Is a General Preamble for thosa. ‘- areasbut In ozone transport regions; • - The appwpnate SIP components
‘subsequentactlons.’ - • -;‘ ‘certa lnlribellandsthataree ltherjjr -• necessary lômeetthesegoalsbythe -
4ldiieamblesfoouses pilmsiilyos.i :nonaiialnuieát ueu or ozone transport.. .lxthy ar and to piovide adequate : ‘
.th.SlPsubmlssloiierequlred féiuii gions. and to specified sources In the . plans (due within the first 8 years) for
flaueneaonpaI%DfUOuteroàUnental Shelf (OCS) area.1%e . attahu1n the NAAQSbyIheapprcpr1ate
.aendedAcbItdIsc” s specific EPA In tcnds to amend Its e dsthrg NSR dates beyond the sixth yeartre overed
- Issues concerning the proper’• . • . regulations (see 40 CFR 5L185,SLUO -; l* this Ceileral Preamble To some
.Igiterpietatloa oldie title I requIrements 5Z2l. and 52.24) to reflect the ‘ige ’ ttcuL this prea mble also applies to the’
• of areas designated uonattalnment (and, mandated by the 1990 CMA. Certain • pedod beyond 6ye rs. For exanipie, It . .
for some pollutants, iIMtified) under d 4 tneges to the NSR requirements of the Includes much of the guIiiai ce
- part D. title Las well as the proper prevention of ,lrlfllnnt deterioration ppllcable In areas designated
treatment of nonattainment areas that (PSD) program. patt C, title L will be - nona” 1 ’””ent for SO,. PM-lu, and lead - -
fall outside of the c’ ’ ’ mcatioa addressed In a separate EPA proceeding .beyond dii 6-year period. Other -
- schemes. This preamble discusses • and are notaddressed In this preamble. guidance that covers the period beyond
requirements for the ’SIPenbm ons. ‘The Umek rio pe. ’of thls 6 years from tsiactment, demonstrating
- equred .for iswi CO:PM-1&SO ,.. ‘General Preamblecuver . the e-yearr ’ - ar t I mcnt of milestones OrNAAQS and
‘NOisandlead nonattalumeut àeas.ln perlod following enac” ent. ’The SIP . future planning for cities with the most
addition. this preamble diacu ses submittals for all affected areas are - - significant aI pollution problems. will:
• interpretation Issues that have arisen reqáed to be developed. submitted, - be covered In future supplements to this
áncernlng redesignatlons at attainment, ‘md approved by EPA within this time -• General Preamble, asneces’aiy.
some general SIP requirements. and EPA period. Complete plan submittals are • This preamble Is orrn1?. I to meet • .
• action on SIP submissions, as well as required for certain PM—ID areas within thI needs of Individuals wenNiig either -.
‘the various types of possible State i yearof L’Fwn’ uem idCO . arvIw ofEPAImiiz .
fa0üies to meet certabi’rIjulrements ‘aonattäIn ibnt areas.re Iaiiöi • inLuq Uon of thO various provlsIons
and the consequent sanctions and - emission Inventories, control-measure - ; of title I oLdie 1990.CAAA era detailed .
• Federal Implementation plans (FIPs). strategies, and alh.tnin .nt •. discussfon of SIP submIftaIrequlrements ‘
-Z This preamble also sets forth EPA ’s demonstrations are due at varying datesc foraspeclfic NAAQ$ nonatth1nment
lnterpretatlon of the various provisions ‘from 6 months to5 years after - •‘dasslflcatlon.Ai area with a higher..
in the amended Clear Air Act (Act) ‘enactment Cenerally. the guidance - aon!ttalnmentclisslflcatlon (Le..lt -
which change new source review (NSR). provided this document Is Intended to , ore greatly exceeds a NAAQS than do
‘requirements for new arid modified guide nonattainment SIP development areas with lower nonattaimnent
‘sources in nonattainment areas. The until further statutory requirement are classifications for the same NAAQS)
discussion Includes EPA s intended Issued or EPA determines that revisions generally must adopt all measures
interpretation oldie minimum changes are appropriate. - - required of areas with lower . - . ‘
:ajl States must make in their SIP’l In - “The scope of IhIs.General Preamble Is-. ,JLOflattuInmà( 4 fl 1f adonL along -.
(other tocomply with the amended NSR limited regarding several new provisions . ,wlth specific ineaiures required for the
c miI ements and the’deadllnes for f the 1990 CAAAcencernlng ,mninionsJiigher dnndflcatlonTherefore. the -
tiii iIrI g these cbang es. States should use of the oxidesof nutrugea 40 ,)... - -, general Introductory material at the ;
4 thIs General Preamble as guld2rn-e for - Specifically, the General Preamble does beginning oldie preamble end the
- revision of their NSR programs and not Include a discussion of the new NO material descrlbh g SIPrequirements for
- submittal of their NSR SIFs. The Act. provisions with respect to the following - all those levels of HAAQS - . -
- mandated diadlines for NSR SIP top lcm reasonably available control - nonattainment equal to or lower than
-subinittals are: May Is. issz for areas technology, new source review, the classification pi imuIgated bra - -
withqut approved sçs, SIP’s prior to Interaction of %itjes I and IV. ozone -particular nona” 1 ” ’ent are, are
enactment Noyeihber 15,1993 for all —tran port region, section iesB report.. • - applicable to thearè , .. -
‘citherSO , ndnjtt lmnent arAs and sectionlgt(f). Hwevez€PA - - - The Gen iul Preamble Indudes • -. -
•;aaig ted prior to enactment May Is. recqngfr es the Importance of provlling citations to Its bwn sections and to •.
-1992 for NO,: JUly 6.1993 for lead timely gu ldianc e to the states to help sections of various Act (orCAAAJ -
nonai* !mnentareas designated January - assure the development and .. .--.--... --. ‘versions. Citations usually comply with
992*ne 30.1992 for PM-b — Implementation of cost-effective control -The folloWIngconvenUonm- - - • -
r ’ taitas$oveinber 15,1992 measures to reduce ozone levels. -. 1.General Preamble sections begin.. - -
I onI areas and • -Accordingly. EPA *iIL.I98ue g ldance as ‘ with a roman numeraL - - - -.
&tI1ljiint(j in. November 15.1993 for - soon as h,ossible as In supplements to - 2. ThiAct.Is referenced by section (or
CO ttaiament areas with a design the General Preain6le. - - . by tftle (I-V) -part (A-D of title LA—C of
vat eimf 12.7 ppm r leec and November Six years is a significant milestone in title UJ). -
lS,1S6 ferCOnQziatIathmentareas the I99OCAAA.Within Gyearsof 3.Earlierversions of the ct andtbe
with a d ga mine above 12 . 7 ppm. For enactment, ozone nonattainment-areas - 1990 (or earlier) CAAA are Identified by
future designations. NSR SIP submittals - -classified as moderate and above must -date or other specific reference. -
-------
Federal Register / Voi. 57.No..74j Thursday. Apnl16 1992 IPztpc ed..Rales :5i3501
—‘-—‘ 1 7b c çw - - —--- . - -- ..
A-glossaiy Hating the various.; j ; ulalions shôáild be ‘vaisuited for an •1*1D ad is ofrequ jij! j
8CrOfl)Sedlnthsdoaanent1 ‘- lndepthdls Ion fthebIsta ,yofd e .I laos(sect1oouO(.j(2D. - .
appendixA.Theblb ilogrepbyforaml NSRprovlslonéoftItl iaawe1Jasa - : ‘
list of cited references in this preamble -detailed explanation of program . - ‘- ‘• 1P&t &. -‘ .:
lsinop: ,eqwrementspdortothe1ggo sgefleralreqWremenb
Ii . Badigmond £ OveivsewofflzJeJof 9wct4A especially those iI dgnated undernw
: -:. ‘-: • •Oneoftheniaingoalsofthejggo andfisedNAQSinSubpa L- •
The L history of theCie ’ Air - CAAA was to overhaul Act provisions Cougre s repealed the 1987 attainment
(Act) exie°nds ba& before 197(L A S’ -. that concerned plknnlpg for NAAQS 4eadllnes for nn and CO. In some.
oummaly of significant events attainment Although one of the chief cases, the po’Uutant.specllic - y
is in vit motivations for amending the Act was requirements oonthk ed in eubpazta 24 -
the failure of areas-tO attain the esone• -of part I) override subpart l ’s general
That summary was part of BPA’s .‘- and CO standards, the process of - - :‘ visi Su l ,an I also Includes a ‘ :
• . 1nPndlngthestatidepr jdedan:. pmssg aneJionsf o r5t at e
Poliq.:whith fócused.n requirements. opportUnity to address one - ‘ - failure to meet statutory requhements. ‘
for areal that failed to attain the- -. - COmjWchenslVC basis the defeqts In - - Beyond that, It lnrIoA., revised new-
NAAQSbyIhestatutoq4e teQf- stUI8laW. ‘ -: • ‘ - - : -. .iourcepeImitreqen t s(secuon’ -’
Deormuber3l. 1987..Theseproposed - - TltIeloftheCAAA(Pzov ls lonsfor -• 1n(c)( )endseduonv ). /
‘‘uliements included .vi’mna -Il,,e j 11 Attainment and Maintenance of .- -- - - - - - •.
Sl deficiencies md fully Impi nientIi,g NAAQS) for the most partn sid, and & Miscellaneous • ..
the 1882 S 1F., adopting e 1 i supplements title I of the Act (Air - Other provisions of the Act address a -
- Inspection and malnfan nce Pollution PreventIon and Control).’ in - - variety of topics. Most of these ,. -
• programs. and submitting revised slirs L& t of the lirassive sweep rd - - provisions appear toward the end of
£ that demonstrated attainment over an :- title I (1990 CAAA). title I of-the CMA. For example, new -
expanded . Innni, ama a - ‘- — -: tender may find It helpful to view the , L
- - Ti ll IIeCtIOn of six - Of 4 I w uOfl (i uiiauy iu a new --
I - i IlL --sets. - .- - - - - - t3pCS
• 1T1Q74M 11 UU - — -- - - --enacted or mandated requhuments.The
secdon110(a)(2)(Hj ), ’Abegm ,juuJ g L tIo iraft q.sjflcaUcns - ‘knewAdsectIon3ogd)contalns -
- ..- __
States with areas that failed to attain section 107 and the classification miscellaneous provisions also Indude -
theozoaeandcostandardaorthat provision ponD RequJrements nceonplnnnbig and • - . - t
contributed to violatiOns of for Attalnmentj of the Act For Instance, - transportation-re lated provisions. - - -
•6 Behveen11tie andflof
tobømplete Ilase ref their SIP call addresses CO dassificatlons. Specific - - -
response. Under that phase, the States f qWremeflth, by CtasqifiCatlon, are
were to correct the SIP where It failed discussed In section lILA. end section
meet ‘A’s existing part bguldanoe 1I1. of this notice. - -
relating to control of VOC and CO - Pollutant-specific requirements.
emissions from stationary sources,
satisfy nnhnplemented SIP commitments
- by adopting any missing control
easuies, and begin updating the base
year emissions Inventory for future -
attainment plans. - -
Beyond the basic attainment plPnnhig
requirements discussed In the proposed
Post-1987 Ozone and CO Policy, the 1977
CAM Included preconstructioi -
permitting requirements for major new
and modified sources under two
programs. PSD and nonattainnii’ig NSR -
(respectively, parts C and D of title I) In
nonattainment areas, new or modified
sources as part of a preoonstniction
review process must (among other
hinga) : Obtain emissions offset , and -
adopt tiol technology meeting a
t t achievable rnIs&on rate (LAER)
standardi In 1980, A adopted new
final atious detailing SIP -
requirements to implement the NSR
pmgramsofpart$CandD(see 45FR
S 76). The preamble to these
- ‘fltle lgenerallyaddresses the
jn,’naftainment SiP requirements and - -, -
title II deals with control of mobile - - -
source ‘unisslons. While title II . - -‘
principally deals with.Eederally - - -
Implemented programs (e.g., Federal
Motor Vehicle Control Program - - - -
(FMVCP)J. requirements related to SIFs,
audi as fuels programs and Reid vapor
pressure (RVP). are also contained in
-the title. Therefore, guidance on
- Implementing these programs will also -
be provided in this document -
rouurarnepeanc requirements for
designated o’one CD; PM—10 and SOz,
NO 3 , and lead nooaftainnient areas are
found in part Dat subparts 23,4 and 5,
respectively. Where a conflict exists, the
• pollutant-specific requirements overrlde
- the new-source permit requirements of
section 173. -, - - -
3. General Requirements - -
The revised general requirements for
all plans regardless of the attainment
demonstration required appear early In
title loftheCAAA, - -
- t4oter The amendment. modify numerous
sections of the Act, IncludIng section. 107.
110, and in through 17s.The .e general
requirements Include prodedures for EPA
review of SIP submittals (new Act section
1 O(kfl action on SW revisions (section
/‘ The CAAA also ammd other title& forexampic.
new sedion 301 of the Act adds provisions
- igaiding treatment vllndian tribes to dde UI of the
AcL - -
II. SIP requirements
A Ozone
1. General •— - - -
-- (a) Clossifioalions:New subpart 2 of
partD(sectlon l8i)setsa new - - -
dassification structure for ozone
nonattalnment areas based on the -_
severity of the nonattainment problem.
For each area dassifled undo: this -
section. the attainment date shall be as
expeditious as practicithie but no later
than thç i ate in the hmowiztg table. The
classification scheme is as follows
-------
- . - - ; ;a uay ii i ii. 1992 / -Proposed Rules •
- --— -— : —-‘ :. •-• . . -‘-- -‘ . .-.
- . - I requIralL.eubmIttaI,do w3lhII 2qears,. 2. MargInal Areas
Oe gnvaki.. -5 199VtbThlhfrëis%he’ - . ‘ ir r a
- - ca ,.. flOO t ate se ‘- B fo pe tthentguIdancón esnirs ns
sqbminaIsotbedelayed4u&tothe 11 , in to .•, -
- I o zi ió is. :- - Sr keSec$I n i a I
- . - . . - requires eli nonatI hiiv nt areas to
- - ,.- - . - . - - - - (d)EnforveabilisyThe EPA has :, zubmftS rmaLcornprebenslve,accuraii
- U defJ e - i35 o d en is. recently deveIoped’ d ç. and cune$ lnventoiy of actual ozone
- ‘rules.(wbich supersede the previously weelrth’y emissions from all
cig) ‘ Issued model rules) for controlling VOC sourcbswitbIm2tyssracknac ’n enb
- - Se’ious____ otso to is. emissions from source categories ‘-j j
1999. covered by the.G oup I , iLand III ihat the draft Inventory be submitted
- kC Q); : - --:control fe hn1que guidelines (Cite). l,etween January iand M y13992 In:
Seat, - - 9.i8Gs Pio egi Thése model ndcs a tedded’be 1 . .rder to fad any revieW lad
- - tsedJtare! tsubJecbW aUó vihesabditalofan acceptable
• . • - - -, - oau - . Invatitory lnNovemberl99z.,,
—_-_- N uS , 1tA j 1es,asrequ1r.dbyaecø 4 an- - 4 )4 ufremeqbaThlsbiltla l -
_____ ____ _____ *a)(socuonWA.zm Jl I
— beloi - 1 led meted as thebass veaaInventc v Jt
• AddltiOnaliy.a severe area with alOeS
to 1988 ozone design value of 0.190 up
to, but not laduding. 0.280 parts per -
million (ppm) Lu 17 years (until
Novemberl3 blO07)toattainthe
- NAAQS.
The designation/classification process
for ozone was desalbed In 56 FR 56894
(November 0,1991).
“4t f see seCtion W.A.$ modè*ate areas
below). The model RAC? rules 1 cIude
provisions for compliance ceitification,
Tecordkeep1 g . reportlng monitoring.
and test methods and procedures to -
anable EPA and the Stites to determine
loT eawcIomzpce” ””-Jn addition cnrnpUana e with the requirements of the
to the fl sir qua llty .bued - regulations. For a number of sOurce
classifiCations, some nonathlnment’ categories, these comp 11 ”ceprovlslone.
areas do not fit Into th dasslflcaU9np . .- have been added to the model RACE
scheme of section 181(a). The EPA has rules to Iniprovi enforcàbflhtybecause-
rk Sid tháe areas aeft aI - th.:c sand j vfous guidance for-
U nnpi - Os Cs did not Include such - .
uda .SecIlon lILA of this preaible - - .. S
desaibe, the requirements for a u In general, for a EPiegulatlon to be
- (margin il to extreme and the 5PmiuIl enforceable, It must clearly spell out
- rIa jfflc Uons) In much the samewa - dWJ os .source t)pes are
-as they are deseribed In section 182.
- - (c)PIwuth, 8 As provided In subyart2 , aubJec to Its requirements and what Its
emission Inventories, provisions for Is 5Ub (WO& C C5s, IIflII°0”,.
Stage Rgasolhie vapor recovery, motor are . regulation also. -
- vehicle l/i t NSR, tatio-so needs to epedf the lime frames wlthln
reasonably available control technolc - must bemet
RACf ) . and certain other plnnith or .and must definitively state -
control measures arerequhed within 2 teCOrdkeePlng and monitoring -.
yeareafterenai1m nt(Novemberj5 requirements ap, o,rlite to the type of
j19 )for most o the previouslyaud - SOWOeS being regulated. The
e yIkiIgiintednouattaImuent azPas .s recczdkeeplng and monitoring
For a very few nonatt 1nni nt areas, - requirements must be sufficient to allow
final determination of the nonattainment det imba*lions on a continuing basis -
f-area bowidnies may not ocour until only whether sources are complying. An
• a few months before several major rules enforceable regulalitni must also contain
4 g., Stage IL I/hi. transporta 1on -test iocedu es lnOrde t de” ” e
control tneasurei (F(!Jfs), f IS K RACfl. In j ic.--.
tand the emission inventoiy muSt be - - Sruc i ,f,uquirement,. for - - -
*i bmItted. These.nonattalnmàt areas areas classified marginal to extreme.
: . should not delay their adoption of rule, vir fly sit requirements are additive -
‘or preparation of Inventories while the
& ?d detj j1naffo -- - (o .g . , a modâate area has to meet all
Inal and moderate requirissente,.
spedfledj The text
‘j te their mñfjsfoà 1nir iztorIes for below presents the requirements là the
thebtvsdgss area under cobsideration first applicable dasslflcption. then
rhboubI EPA ç id , .A. that such broader -repeated only If the requirements are -
area Is apy u .jste. The 1990 CAAA I IU for a h et bauffi oui.
.
deve lcprnenbFcr no nathhmwilt areas
that are r ijj lred to do photochemical
grid modeling pursuant to sectIon 182(c)
(2) (A) (see sections flLA.4.e, serious
areas, and lffA*, ámltl .State areas), the
modeling doni ln.wIli-detenm1ne the -
ap , pdate size of the-area that must be
-Inventoried for-modeling pwposes.
• As one of the first steps In developing
• the bàsê year Inventory, the States are
to prepare an Inventory preparation plan
(IPP).-whIth is due In al faire to EPAb.
by October-i 199L-The WP elwul4 —
briefly state how the Slateintends to
develop, doctinmiti. and suLbinht Its -
inventory. Another early step In the -
Itiventory development process Is.
• preparation of the point source portion
- of the base year Inventory. Guidance for
preparing emission Inventories was
-Issued In May1991 (“Procedures for the
- P&uparatlon of Emission Inventories for
Cdrbon Monoxide and Ptecursórs of
Ozone, Volume r ) Becaüsaihe point
source portion of this guidance Is
essentially the same as it was for the
post-1987 SIP’s, States should have -
already begun gathering data on those
a . I
_._ •• • _.
-m;Inventoryls to address àctua1VOC
NOx. and CO emissions for the area
during the pe k ozone season . which Is
-generally the .uwmer months. Au -
stat1o1 ary point sources and area
sources, as well as highway and -
rionhiglIway mobile sources wfthI i the
n Imn fltar a, stationary sôurce
•wlth m1ii.Icu. of 200 tcuargreater per
year wIthin a 26-mile wide buffer of the
daslgnnted nonafta ree ,g area, and any
OC sourceó are to bdedhtihem
26-u! buffarisneceesary to enswe
-------
.1
. .:. .. -. Federal’ReglsterJ.VoL 5 qo 74 /. iyApdl
-. . . .. - - . • -. •.- —:.. - - . p a ,. • ‘ . • -‘ ..
;zournes:States etio submit : em’esionesuma(eirust eu lojed irnpóitanjrole n $ t
(he pointiource portion of the Inventory 1y the Stétee using the new - - -‘ demonst aftons for areas dassifled as
to EPA as early as January 1.1992. . - methodologles.The new methodologies :. moderate and above oUtside transport;:
States that have fully completed •. for calculating emissions fp?zolvent use eglons Guidance has been developed . ..
portions of their base yéarlnventorla • are contained Iti the May1991 document o eld State. Ifl preparing emission
for 1987,1988, or 1989 may request EPA ‘Procedures for the Preparation of . • - inventories for photodreinical g Id
approval to update these portions..- mlssIon Inventories for Carbon . - Jnodellug (for .erlona and above ireas
Otherwise, State. are required to -Monoxide and Precursors of Ozone, ‘.. and multi-State moderate areas) - .
-prepare a completely new Inventory Volume F’ and for railroads andsirauft, (1 oc dure. for the Pre areffon of ‘.
• wrth a 1990 base ye • ‘The EPA.. • . In the Ju ly1991 final draft drapters Of uksIon Inventories for Carbon
guidance on the procedure to request an the document ‘Procedures for the • . Monoxide and Precursors of Ozone, Vol..;
-update wü provldedlnMajia9i- . Prepara Ion of Emlasloninventorles for IL” May1991. IJAM Applications ; ‘
• (‘Procedures for the Preparatlorf ci -.. Carbon Monoxide an4Pr rrr .orj of-. . CUMaIWe” .aUd “UIers( ujde for the
Emission Inventories for Carbon Ozone, Volume IV .” The States will be Urban Airehed ModeL VoLt” lire -..
Monoxideand Peum crs of Ozone, -. . seqi&edto sr8atheeemethodsv&an:. read oddálsoieferbilie- .1
• Volume I”). i-. . • • ,: •. -. preparing the areA and off-highway. • . ‘dlscuasionof øn’nn ’,”tdemönsfreUon -
In July 1991. fl’A Islued inujidated miobi1c source portions of thirémisslon - requirements for genoa, areas (section
versIonofMOBILELftsmobile .omve 1nventoles.; .. ’;’ . -
.mkelons estimation modeL The : - - ::Th Ad ent ’ Paocedure, for- .. inventory prçpareUonfor 4&(for -
apdaled version MOBII 4.1. replacer• Estimating and App1y1n Pule• .• -nonnmltlState moderate area.) li--•
and su ,ersedes MOBilEs. State., with Effectiveness In st-19e7 Base Tear described In “ProceJures for PrepaMon
• the e qitIon of California. are required Emission Inventories for Ozone and •. of Pml ton Inventories for Carbon ..;
to-use MOBILE4.1 In determining .r Carbon Monoxide Staie Implementation Moloxide and Precursors oiOzonë, .
highway mobile source emissions for all Plans” (June 1989) should be consulted -Volume I ,” May1991., -, . - -:
of their base year emission Inventories, for Information on bow to consider rule (b) R TExnnecflans:Sect lon
mAe the CAM.. California will consult effectiveness when c ”l” '’latlng .. . -; 182(a)(2flA) requires wiinø •: -
with the EPA Region DC Office in- emissions from stationary sources. One n ronatfnlmnã ,It Oreas to subudtivlthln 0•-;-. -,
determining the appropriate mobile . . Imndred percent rule effectiveness lithe . months of wififqflon all rules and .
: 50m00 t0mn 50 .1b0therStat 5 5 ” --- .abilltyofaregulatoryprogramto • ‘ • . • co cnstoexisli VOCRACUuI - -..
adopt Califomli tailplpèatandarde, they- addeve.aU-theemlaelonredóctlons that that Were required the RACT ’ - .
should consult with their EPA Regional -, could be achieved by full co p1btn . -. sIon medlloñ17 bXS)of the old - - ‘
• Office to determine the appropriate -• -• .wIth Bppllcable.z guI Uons at all law (and related gulda The EPA
niobile model because MOBIIZLI . sourcee at all times. For the purpose of. - published aFedeMRe Ister (SO FR “. - .
would not correctly reflect emissions - base year Inventories imlier the CM. 54554) notice dmaibhng this provision -
from these States In the future.. : EPA will require the use of an go - and the suocest of State. In meeting the
However, for the base year bventmy. percent-effectiveness default value • correction deadline, and the resdem
,and until new California cars are - , . except as follows. The States are - •‘ should refer to that notice. As explained
Introduced Into an area, MOBILE(1 - encouraged to derive local category- - In that notice, areas that were • -
should be used. The majority of the • specific rule effectiveness factors, . designated nonattainment under section
enhancements In the revised model are consistent with the tests and protocol 107 just prior to enactment of thelOSO
Internal to the model and do not require prescribed In the March 31. 1988 - CAAA are the only areas affected by. -
the States to make any special - memorandum from JohnS Seltz.. - tI is requirement because they are the
-procedural adjustments when running Direct9r; Stationary Source Compliance only areas-that were then subject to the
MOBILE4I. The EPA’. “Emission - - Division. to Regional Air Division RACI requirements of sectIon 172(b).
Inventory Requirements for Ozone State Directors regarding “Implementation of - These areas were again designated
Implementation Plans,” should be Rule Effectiveness Studies,” or complete attainment on the date of enactment of
referred to for more Information. The the questionnaire procedure for all of the 1990 CAAA. and were then -
States will also be required to develop their source categories as prescribed in classified under section 181(a)(1) by
new 1990 base year Inventories for “Procedures for Estimating and - - operation of law. Thus, those areas were
highway mobile sources to account for Applying Rule Effectiveness In Post-1987 required to submit their RACT ‘11X4)pS”
fleet turnover, newly opened-to-traffic Base Year Emission Inventories for as a SIP revision by May15, 1991.
highway sections resulting in changes in Ozone and Carbon Monoxide State., Newly designated nonattainment -
vehlde miles traveled (VMT) and VMT Implementation Plans” Finally, the areas are not subject to the RACE ‘lix-
patterns, and changes in speed limits, reader should refer to section m-A.9 on ups” required by section 18Z(a)(2)(A)
States are to follow new guidance for multi-State area requirements for because they were not subject to section
estimating VMT to be published In the —additional Information related to base - 172(b) of the old law. This Is the case
Federal Register notice expected to be - year inventories. even if the State has aIre dy adopted
Issued In LOMS to fill in). - - By meeting the specific inventory - rules for the area as part of statewide
New methodologies have been requirements discussed above, the State MCI for purposes other than meeting -
developed to calculate emissions from wifi also satisfy the general Inventory pre-1990 Act sectIon 172(b). For -
certain area of off-highway mobile .- - requirements of section 172(c)(3). nonattalnment areas that will be
au categories. The categories are (3) Other uses. Many other inventories expanded to contain portions that were
sohentusas railroads, and aircraft. The can be derived from the base year not designated nonattainment prior to
“ --- -- “ ‘ factors for nonroad engines inventory. For example, areas may use - enactment, the RACI corrections are
and , ebId, c have not yet beenchanged. their base year inventory as part of due in 8 months (by May 15, 199 i) only
but may be revised as the result of a statewide inventories for purposes of .for the origlnc 1 nonattalnment area.
sludyrequised by the 1990 CAAA. -regional modeling in transport areas. - However, for moderate areas, the newly
Therefore, kr these categories, new - The base year Inventory also plays an designated portions of a rronattaininent
-------
* 13501 Federal Register I VoL 57. 140 74 I Thursday, ApnI 10, 99 / Proposed Rues ?-
‘are wilI beisubject -to theRACI*vcetcb. ’.iEPA enli be dis ussbig tho e provisiOnS 1981 and later rnodel vehide of 1.2 j
ups. M explained below in section In a subsequent Federal Righter notice.. percent CO and 220 parts per nillIon
IILA.3 .rescb moderate nonaI’ ” ”a ”t Refer to section IVJ. for more - . hydrocarbons (tIC) and a 20 percent
“area (including the nwlydes1gnate4 .diaco on on aabctlons. tJnder section stringenq lot pre-1981 vehidesM.
• ‘portion) is sub ject to4heRACr cst 110(c), A also must promulgate a PIP complianceia of 100 - t ifdea
mof eect lon 1s2 (b)(2) i . no later than 2 years after finding a wa1ver ate o 0 pe uentai a.sumedo
• whIch piovideforSlPsubmitta)sb v . falltrelosubmlt:. . - . •4 ..; .. •Statesmust trateai .m I m lóf i
• November i she rz ups On October22, 1991, EPA published a 4eductiOfl for the IJM program Included
•geferto conec*ionsStates are required.. I notIce (58 FR 54555) findingIbat nine , . In the SIP that pat least as great as that
‘to make toRACTrules that’arealready* l States end the District of Columbia produced by the “model” )aslc program
I.E In forceand toad oabySta1esth fafledt a RACT fixaup submittal (or the program already Included hi the
euleaihatweze required b e4900 .-Act’. required u âder section 1a2(aXzXA) The SIP. whlthevex Is greater), using the,.
• ‘seciomjJoboInfort ThvRACT i plans to publish a set of uflodel - most current avaflable version of EPA ’ .
1 ?cap refertheappllc tIospJ Fedeiãl VOC regulations. The EPA will mobile loUrci ‘ t alcn modeLeTh 1b
- RACPfceaU plIcabléasurcu listed 1n t use thcjá model regulations as astarthig ‘progiarat ire requiredin th wbeni d
‘ sedlonj82(b) fwbatLwas poiritfo Federal )gEoáof o rdoni flb Jhkueaudibm
- iur I,”Fo rnurncsea of tha regulatioiis under ectIoir110(c) as - .
r ‘ Iz-ups ” requfreáiiLiiüithat necessary , and will provide an “uonaI*fl ea . . - .
were treated as rural nonattatument ‘ oppor rw” ”fat:tbatt1me,To - The EPA ecte to lsiie tEl cliëy
areasunderEPApolideslmpl. .n. ”tlng the at ticabteEPAwIU .e P forliMprçgrarns lnthënearfutuie. .:,
the pre..mended Act must submit • formulate any Federal regulatlonsosi the ‘-Wben pvblisbód. the pá fll state
corrections ouly for previously ,e -1red model jula ons PMiia1regu)adons thidate when such projamsare tobe
rules (Group I and II CIG sources with . wlfl -ls pr Wgat I T.thsStates do not, heplmnentedAliaEPAinl.nde that the-
may” wm th 1VOCeinl ” ' eurre i lb. regnJa aJnj the end pnl fliaflow .uU areas
greater than 100 tons per pear) Other . ‘the2ieerperlotce menduigb mtbe . afterpubllcatioaolih..potlcy toadopt
rules (Group Ill CiG’. and non-Cm ding.t •. •• a nd tbUIccr ” 1 ’ ” èdl/M -
rules) will be due by Novesrberl5 ,1992. The EPA will also use them idd - *granioan4MI/M otIq”Ua.
..s part of the catch-up for those • ieguladons aa the basis for Federal ‘rOf e renà dIn.ecflon38á(aX2XB). 1 SIates
- previously designated rural -• . egulatIonsio apply hire EPA. ., that havsboth basic and . h n 5 4 IIM
nonarthl.1 ..IIt areas that are dansffl d disapprove. any rigul tknthat baa . programs may opt to Implement
as moderate or above upon lTna .it béi n submitted Jinally, EPA àpects en dprciams I all affected..
and srpt otherwise ila4iatedas: .. states may want to sue the model rulà urbenlzeiWeas$tates which are only..
iural transport u es u4er the new Act ass rLl Hn .for d,velopW ‘oc-plable - requiredlo LE$. ”M bask progrem
(1) Dflwdomof usre1o .wA w $taluvles . - . ‘ £‘ — ( . ctI6n182(aX2X8) or the
4 eflc1er cy lienyrule,’ormn some cases - (c 7/MCoirueficns.Section requirementifor moderate ozone
a portion of a rule, thatis less stringent 182(aXZ)(B) rcqiiLes States that con ” ' 1 ” . nonat”.”t areas md erta1tiCO
thanRACI ’ as thatrequIremei t was marginal ca ’o eqabE .m. .ta as DOMttAblW nt amos, as discuteed lati’
Interpreted In pre-1990 Act EPA . with e dstldgIjM programs, or that were In this notl8p) must subuilt S revIsiohs
guiI iw (Issued under sictloni 108 and required io Include IIM pzograms in - . . for IIM progranis iddréssisg anY:..
172(b) of the old la w). The EPA provided their Sll s by the pre-1990 Act , to submit revised poliq.Theg lda”ce will
a list of deficlendes for each area as • to EPA 1 edIately upon t1990CAAA) address ibe elements t She SIPievislon.
part of the ‘e S W call letters Wee h enactmeniof any revisions necessary to As In nal te by . e c”o ” 200(r ), the
State (May-June 1988 and Novemb& - - -
1989, notification published 53 FR 34500,. -
September , 1988 and 55 FR 30973 July . c u .mDI.d to In the SIP In effect at I
30, 1990 ) ,llie EPA also provided States- : ractaent , whlthevetismore si’tnrs tIUdC&
wi ndatIng u enwend requires EPA.to review; systems Is *0 -
asked them vIew -. - a ep bl l the . balonielated
ladependently:t&determbe co miat ,’ R . w within4 year of . -. systems deterioration or malfunction.
with thliguldance. - ,• - . ___ for J/M .. 7 jfl () 5 ffØ 20 )(3 ) , wIthin 2
(2) Consequeaces of foilare tomafjj,> programs required by the Act. ‘ kbsg years of EPA’. promulgating regulations
‘cuzreciions -Sectlons 179 (a) and (b) and j con ’4 ra kn the M’n1n1.tratoi’ requiring States to do so, all States with
110(m) provides for the Imposition of Investigations and audits of inch . JIM programs must’emen their SIP to -
sanctions and sectlon110(c) provides for programs In short ozone none t:pravIdsfoë1ns ië t1OnOithèseonboard
prOmnlgationofaPW UEPAfl idstha i”areas ra n trilainthin exlstjng JIM AIa sflcssyatmos The EPA wilt Issñe
Statelajled to make a required . • prbgram and must make corrections to revised I/IA guidance which addresses
ceubndtlaL tinder section 170(a), EPA . Shoed programs to meet misting J/M .. onboard .lh guusUc Inspectlon&
.jnust Impose at least one of the two pollcywben updated policy Is - (d) Periodic hrventosy. Section
mandatory sanctions listed in section pub ) sh d.)heie areas must submlt-. - .-j 182(a)(311A) requires the States to.
l79(b) 8 months afterEPA makeô ilidi ‘ revlild ’de to address any new guidance, submit periodic inventories starting the
a ftniuqg vol.” ” EPA finds that the More specifically. section 182(aX2)(B).. third year after submission of the base
““ 'bi, maditsvompleje submittal n requ1Ees States to meet the basic t /M year Inventory req ulred,by se tlon
e id ith&ruIeiThe -‘ performadce standard that has been In 182(a)(i) (Le., November 15,1995) and
second of the two ianr ’ cns must be “effect since 1977. This standard 1. based every S years thereafter untlitbe area b
I”1P0 5 541 lIthe has no been one “inodel’ program design consisting rede 1gnAted to attainment However;
- e L B ww .& ,s’after the first of a centralized program that annually complete actual inventories will be used
“ '“ ‘?eirO& Section 110(m)also tests tailpipe emissions on all light-duty to demonstrate whether or not the
SptUvisronson sanctions The . vehicles, using emission standards for .. ‘milestone required In sectIon 182(g) has
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• -. •. . Federal Register / YoL 57, f’Jo 74/ Thursday. pr11 J6 192/ Proposed Rules •..
• ‘ ‘r- • • • -•;2 .’ . ,’ — ‘.r • : • : • . ... L-•, . • . - : - . -:• ‘p ’ . S .
ioi cj f NO ñdVOC ‘i 3(c)(1). the urn
be aubmkted within the preemibed showing theatual emissions of NO 1 or ay obtain offsets from the same sow’ce
period following the milestone date.The VOC. The llrst statements are due by p- . . orqthersources In thesame.
- EPA Is recommending that States Jovember 15,1993, and should show .. nonattalnment area. and In some cases
ynthronlze th Irsdhe&iles for - . emissions during calendar year 1992. .’. : ‘*om anothernonatthbvm nt areajf the
developing the periodic Inventories eo” . Each statement shall contain : area his equal orbigher :- -•
thaithe second periodic tory (the. —cerlilicaUo that the nformatlcn oill’ .lnhnentdassfficaliou. and the
third Inventory overall), which would be contained In the itatement Is aconrate to .nksIons from the other area contribute
ike in 1998. will actually be submitted the best knowledge of the individual to a violation of the ambient stn ,wlnrd In
early In 19974by February 13,1997) and certlf)lng the statement The EPA will the Irea where the new orniodified
• willaddress emissions In 1998. In this Issue additional guidance on the form • source Is locating In addition, prior to•
way, the milestone demonstration • . and content of the statement pennit Issuance under section 173, the
(required under seátlo 102 (j)) that Is- States may waive the reaulremeirt for nonatthkth m tplan provisions must
due for serious and above areas In carly .emWlons st&P iwIIts for d 1ssesoi :- dmnt.netrate reasonable further progress
1997 can be based onthe periodic i ctegode of soirces that emit less than: (i FP) by r u1dng suifidentendsslon
•Inventoiy developed by th&StateL 25 tons per year of NO or VOC If the - yedui t1ons to offset emissions icereases
Future periodic Inventories then would. claas or category Is Included In the báse from newer modified small (nanmajor)
also colndde with the aubsenuent- year and periodic I vèntoi4es,and soutcesjn the aiea.
milestOne demonstrations rather than en ’Iwions are calculated uling nl ion . (gj RUI 1tAaI ,Mi Oums. if an area
the later dates issodated with the factors established by A (audi as • meets the seqnk i imb discussed bei&.v
iëziodlc Inventory requirement. The - those found In EPA publication AP-42) . nd Is treated by the A tratoras a
EPA will be Issuing gul .li .nie on the - or other methods acceptable to - - _ -e - (RTA)as . - . - .
• synchronization of the periodic - The EPA bell ea that the .nI iOñ =: _= roce iu es consistent
Inventory with the milestone compliance statement can aid In the develOpment of with the EPA gnM nre Qiteda for
deadlines in the near future, the periodic . nkslon inventory. serve A 1ujthe Role of 1 ansport of
• The font periodic Inventory due no. as the A S Facility Subsystem (A.FS) :. in Ozone
later than Novëmbetl5, 1095 covers •update, end trick progress for point NonetWareirt Areaa.” the SIP for such
actual emissions for the 1993 time sources greater than 25 tonslyeá :, erea n eci o !ynreet those section 102 -
• period. lire States will be Involved in (I) NSIZ. The statutory NSR permit - .
aignffi. .nt ,lannlngactIvftfes durli this .r.qulreinenls for mr rginal : .
:‘time. The EPA WilL In the future, provide . zon tf inin lit areas arigen rillf 3:
• gnMgni .p nbow to Integrate thesi • contained In the Act tinder section y marginal areas. It should be nbted that
einl.s lon biVentOIyMd pIminh g . 172(c)(5). feviséd • • the NSR requirements applicable hi.
activities. There could be a significant newly enacted subpart 2 of part D. unone !mnsportirI gIons (e offsets at a -
resource and effort savings effect to These are the minimum requirements . 1 L15 ratio and major VOC source
• States that elect to acce t erate the . that States must Include in an • — threshold of 50 tons per year) supersede
second periodic Inventory so that It can approv.ible bnplementitlon pun. A the mm Inal reiiulrements for RTA’s. If.
• also lp used to demonstrate milestone discussion of general NSR permit ‘however a State’s request that an ozone
• Otherwise at least one iequbementsIs contained in section nonattaimnent area be treated as an . -
additional emission Inventory would be IILG. of this preamble. Section . - ETA Is de ded. the area will be -..
required by 1998. More Information on 182(a)(2)(C) requires that States adapt classified according to Its design value -
theie assessments and periodic and submit revised NSR regulations for. and all sectIon 182 requIrements for that
Inventories will be provided to States In all ozone nonatffiln ’nent dassificatlon will apply.
guidance on emission tracking to be classified as marginal or above which .-ACoOrdlng to seCtion 182(h), the
completed shortly. Incorporate the new provisions of the AIhnhi 1Rtrator’e decision to treat an
The periodic Inventory shall meet the - 1990 CAA. end correct existing ozone nonattainment area as an ETA Is
same requirements as the base year - regulations to incorporate all NSR Isconar p This discretion maybe
Inventory. This periodic Inventory shall - provisions In effect Immediately before exercised only If the Mmlnlstrator finds
be based on actual emissions and shall the date of enactment that the area neither border. on nor
cover VOC, NO,, and CO emission (1) M%r stotionaiysource. For ozone - contains any portion of an MSAor
sources. like the base year Inventory. nonattainment areas classified as - C2 4SA and If VOC (and if EPA deems
the periodic Inventory shall be based on marginal areas, the term “major them relevant. NOx) emission
peak ozone season temperatures, - stationary source” means any stationary emanating from the area-do not
industrial activity, etc. Additional source that emits or has the potential to significantly contribute to ozone
-guidance is available in the ‘procedures emit 100 tons per year or more (see concentrations measured within or
• for the Preparation of P”i uion . discussion In section IILAJ). Lower size outside of the area. This showing
Inventories for Carbon Monoxide and thresholds apply to other area - depends upon whether ozone
Precursor. of Ozone. Volume L’ iay cldsiflcations and the VOC, to ozone concentrations within or downwind of
1991 transport areas. . the area results from “overwhelming
By meeting the specific periodic (2) Offset ratio& For the purpose of transport” of ozone or precursor. from
inventory requirements discussed satisfying the emissions offset reduction sources external to the area. Guidance
above, States will also satisfy the - - - requirements of section 173(a)(1)(A), the on determination of “overwhelming
‘general periodic inventory requirements emissions offset ratio Is the ratio of total transport” Is found in “Criteria for
of 4ii 172(cfl3). - , actual emissions reductions to total Assessing the Role of Transport of
(4 - . ”’ ions stcfemenLt Section allowable emissions increases of such L Ozone/Precursor. In Ozone
1 4a)(3j(E1 mqulres Stales to submit a pollutant from the new source. For - Nonattainment Areas.’ A finding of no
- 1evis5oL by November 15.1992 that ozone nonattaininent areas classified as significant contribution will be based on
ruqu.ti B (be of annual marginal areas, the emissions offset analy is subn tted to EPA by the
sb ca1s’ from owners or operator. of ratio is at least 1.1 to 1. As per section concerned State in advance of the
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11 eC St te
mod is, ersevere
ODaVS paticulai.the JIM RA 4 and IS ‘ ‘
will be reviewino per nt redatflo ” gequlrementsThese
- .‘ • - . . .. •iaaj. 4 p I* £D. 1 I h oposed Rules
— — .. . —
-requIred SIP These results must leterudn1ng and responding to fal!ures snake ita higher dassilicahOn. the la
reasonably implicatç.an upwind area as to attain to maki adequate progress and . date assodated with that classillcado
Theofthesuredonone-’ . ..bespeciflcmplicatIo sIormarginal - tatesshouldbeawarethatffanare&
- onceutrutions. Also. the area must -ozone areas. - ‘-vohmtarily bumps up late In Its
demonstrate that its emissions are not (WFailure hLoUabLISeCtIOn IeltbX2) attainment period, the disantion r
causing enonatt&nm iit problem In Its -of the Act requires a marghiaL Ygranted by section IOZ(b)(1) for the.
dowuwind area.• - inoderate.orperloup e,. -‘ . for
_________ - nonattainment area ___andied.4 . - p, -; ..
S Sb!4 ‘ as odated with the rtmd higher
l%i : j ea ma”be serloushi limited.
___ ___ - dted ththe,a&t 4 sf yg ‘ -
a 0 t). t J — -eâdoftbeIrett& ”t bef
Howevez fftheereistillqi aliliesuan ‘I UhüiIdtbY the .. . toin m aP er tread
anmwWbesubject __
c wdass1& iilonk ubjecteqly to -‘ da i br nucess,M area ot, ? ! “ RFPOf
the submittal and btipIe entailon ‘be b in d ps e me t s-
requheniests for marginal areas. If ft Is - 1aeilflcatIon i d p t J . ueteilorauuu In a r pWU O iw iy to
. d4mInd that the ariaño longçr q . 1 Res . Th WAL ei àwithlms . .J! e Insuffijicot time f eang
as an RTA. the area will be treated as nnd .aftatIh &uaIm iou slat ’ - ‘U (S ilIU% UtttI 1 lW WIlIt1 US UI
;.thh i gb d iifledai eaforSW.... - thM s.ha *I g e .Jn” g
eqa1o mnhs as welL - 1hIs dete atlon, ’A tvUl •iU WOt1. £flC BZS5 I SIU wul’
: sSIouRTN.loca ‘, tiy ovanatg., q lpy ..uwed believes that It will be unable to attain
frq% 3fty data covering the 3-year bY1t1 appUc le deadline, to voluntarily
.L derJecUonJJ ( us $ period ápto and ‘ nd d1ng the - bump-up many enui u tq ma,dmlze we
‘ app es speyIt1oj sjvq ç ,dJ4 , attah .n nt date. Forai thoaIU .&ge . available time f lementing the
• ) ll (C)Iirpaltlá1lr. nnmbeLex edanceyeireball requirements oTtbe next bl ber.
provisions of sectloilb4(bXIJ(B) ‘b d d minowhethemIhaarea nonatlc tl’unent !evel? ly.nump up wtu ’
requiting Impisinentatlon of RACf with ‘ha attaIn d. For marginal o’i ’e ‘.rea,1dion s-endiOrFlP-
iespect to all sowces ofVOC covered -- nonaI hUSent areas. thIs. . .w that impkmeatallonthaddreatdt from’.
- by a Cl’G, end the section 184(bX2) - the air cuality data té the period laai to faU mêetSlPIiilinlttal or.
. uL erdi concerning -• -- - 1993wIfI be used tódetenidna bether mpla ouñequlrements.%. -
Implementat Ion of vehicle refueling - the area has attained by November15, Although sectlan182 e) apecificifly
controls Identified by the AdmWatrator, 1093. (Areas that ebâw att*t i.u4 prior e, riudá wargb i) tress from
- mast be lmpkrnente4 In a State plan - to this period may bëjeds,lgn tedprIcr cwztiugeicyjeqálremáts of . ecd w
‘E anRTMnaddltion an RTA -to Nóie be1 .i093 In aácordance with 1fl(c)(9), marghiaLarea. should
SJp mestbesevisèdth ind hatever — section d) 3) - : - - - ly jA the benefits of
JgaJ ma axe i -: As irov1 In si tIôij181(a 5) for - advanced adoption of -
rededendersect lonlaa(c) lad ozone areas totwy meun es that omld be - - -
‘ivhete èthestavaUab l ea1rquality ‘of thrsP ’ daticai be raàtedto’ implemented qaickly should the area not
• - miát(orh g in4 io$.t1eg.techeIques re ‘theStaeittheStatebasmetullt - • - . ‘attain by the 1993 date lfa marginal’ -
-- l.ti . .Hned undrsrsectlon 184(4-These- ‘Ipp!icabie ‘area falls toattainbyNovember as.’
pilinevislons must be approved by the thancnrexceedaôç q l !ofJhe ‘ .1993 ,itwl become subjec*to the -
A l’1 i sfrator . - - - — -•: - - RAAQS has c wxei! at anymonItor areas. In
(hMe udslin bot in timyearlnvçblchjhei - - - . -
attalneèllecause _____
available data t determIne the uime t, would lspve to be met and -
r ’v U narrJnm . .tr area may appiyro aft hmwnt status, the State should - the Standád adileved by .Novárnber l5.
the n.fr opt 7 b .to,tbep . ‘ . , submit Its a lication for this extension an’extremely tight tileframe Ice
ormalatedgrogranes,. -‘ • as soon as “ an.”’y air quality data these ac( iupHahments lIne prior
- are available.-’ - • -
A ‘I%t .3• - 2 .ut flA J a si. S I . P fl 3 vu
. . on ua. Oj i more wewemem U r ’ wiwuwe . . an -
aI . - I a . aa .a . . .J . flA lii hII.h —a
Os w program reqw zww. -. - - 1 JPI I -‘ Im ted and the 15
-- (WB viâk AJthough the- ‘and the-area will b..ze .i 4 °e by. ‘ . b
- primary foam of èhls General Preemb t e - øperatf on of law. The A ’ t’ ”tratàr ‘L...r qw si.
I L . - - I - I• -1 R • I UV & &USU area
on we eruerra n rA wus use in - may eutust ins suorarnu uatassot we - . -
i w4 ;.. -‘S ii . - I • ,SI. the attainment date for moderate areas.
• - ... .. . . . many. Os we w - tb t
SIP ilbalttals that”atd required under- - (to “assure consistency among the . . .,, • - -
the ig 0 iM& Ills ulefu) to deedibe ,, required submlèslons” (section 1 ØJ. ‘2II UP OT 4SUS 5 areas,
the ämendedAct provisiona regarding but the attabunent date will be the date (Z)SformWnJflOI Oreas.
‘failur twn tta1uor to make ethlu’w ‘originally specified fdr that - - - ‘The retention of the moderate area
z tlthrmI estoijje,flje EPA be]ieves dessIflr atioa In Tabldl of section - -- - att fnmeIlt date for a margins] area that
ll H&lii reas (là j,arllculá. 181(4 For example. a marginal area has baa been bumped up raises soute - -
i targlnaIwiwe areas) face some. . . . ‘- an attainment date of November15. - - Important Issues for marginal areas that
___to the - . - - -1993. U the area does not attain by then, wW have difficulty attaining by the
to aUall b the - - the new attaliunent date wilibe • - November15. 1993 deadlIne. These
— lg,d I ’-The following - November 15.1996 (the .o iginiar - Issod become even more elgziificant If -
-* esioa’dewthes timbasic — - - attainment date for moderate areas at - the niarglnalarea applies forand
ro 1 1 aidi for - . .-enactnfent) or. If Its dir quulity would recetves.one or two of the 1-year
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• :. Federal Register /.VoL 57, Nô.24./. Thursday, il16,49?2 I k se ule 35O7 :
— I - - .- -;. . — .
- attn*nm.nt date extensions (section - -‘needed emission reductions before the • - ‘ thitèfra e. In some cases , in jdeIli*g will
181(a)(5fl. .. . . - attainment date for moderate areas. - .sbow that less then a 15 percent -: -
• The’EPA believes that marginal areas. Finally. EPA is considering requiring éductlon would be required for
should carefully consider the -. -Slates that request at ni’ ’ nt data attainment of the standard. However
• consequences of not altaln(ng by --: extensions itn section 181(a)(5}to- hel5peroeat rate c i -
- November13, 1993, and should take aubmit their air quality data onan - :requkement Ii intended to be the base .
• . ejjain j,çeljmlnary steps to nilnlmi,e - acoeleratedthne schedule. This early program that all moderate lad above .
(he potential of being sub ject.to possibly reporting of data could help alert the areas must meet. Ilils base pruwam 1s
unnecessary major control and planning State and EPA to the need tO qUlddy . neces aty to ensure actual progress -
acti F ,r example, according begin deveLoping and adopting the • towaid alninnwnt In the face of
• statutory time frames, It could be the • addItior e1 measures for the moderate uncertainties Inherent with SWplannlng
ndd’Ile of 1094 before a marginal area I d classification. If the data in the such as emission In ventor1es. modeihig
bumped up to the moderate ‘ .‘.‘ “extensIon year” téveal more than cue- end ection of expected control
rn ntion. If an area had not -.; . exceedance of the natloáal taiuInvd eas . Also, this bascpiugram
co m nved ar y ea$y plnnnlng end rule ‘-. (3)BosIcIIM in the event theta-S - wouldprovidegreaterasrniranceof- .
• development activities, the area would. gbmiozo”e i1onat#nIi111 e1 t area fails -juaInI n*n’ oftlie standard altar -
. baveouly234yearstomeet Uofthe .. tOatta1flth O1” 5 t sndardby the attainment- • • . • .
requirements for moderate areas (e.g., - -applicable deadline ore ’e”ed- • - in th ,e shows
JIACT rules, Stage ILlS percent - dO8dllfl . aid tufted tO . : • that redud1 ons greater than i percent
.mIq reduction requirement, etc.).: .. -modei te a bUlb IIM program must be re necessary to attain the standard,the - -
while just mnlclng the submittal, for imPlemented, regafdle a of whether the area win be required to achieve those
these requirements would be difficult, it -area had an JIM program In place. The ad4itlonal emission reductions.
• could be even more &fficult forthe A intends to exercise Its authority - $ c Ion )(1) (B) and (D) & ‘fin 0
State to Implement the measures -. under sectIon 182(1) to require suth- : baseline emission. as “the total amount
- enough to reduce emhtllons and have a areas to submit a eetinIthe baSIC of actual VOC ci NOemisslons from all --
significant Impact oaozone levels-by the - J/M rerjUlrenwnt 5 within one year of the anthropogenic sources In the area durlig -
end of 1990 As a result; the area could en UoiL -: • - - the InbmAaP year ofenadment,”. -
face the possibility of mls4ng the 1996 a. ModeioteAziras -. - . - - excluding the emissions that would be -.
- - date for moderate areas and - llminated byFV ulafl . : -.
___ Mderateareasarer qáhed to meet- -
- :bebpedup rhi th i sdmetothe - - promulgatedI tyJanua ryL l oDo,ai4 -
- - SeriOUS ff he - - -otherwise noted, as well as the - - - - f ktIOns piqmulgstldby -, -
iminqlIrediob
-. -area bad earlier received one or two - additional reqilrcmcnts.
xf.ntI me (under section 181 a)(5)), Oi -(a) Requirelient for 15 percent • promUlgated undefsection 211(h).wlilcb -.
difficulty of adopting and .nting in i ’ s. s 182Lb)(l) requires RVPno greater than 91) pounds
required measures before the attainment tt t per square Inch (psi) during the high
date for moderate areas would be even - classified moderate and above to submit ozone season. Thebase year emleelol -
by November 15 ieo a plan revision - - Inventory for cnhmdaryear 1090 must - —
• Given this potentially difficult - -that reflects an actual in - - be adjusted to remove the
- situation for marginal areas. EPA typical ozone season weekday VOC aforementioned nmteuions. as well as - - -
strongly urges States with marginal- - emissions of at least ISpercent during blogenic emimions and any , nhi Ions - -
areas that may be unable to attain by the first 0 years after enactment The 15 from sources outside the de nnted
- the 1993 deadline, to Initiate preliminary percent emission reductions must be - -nonaftainme t boundary feg within the -
plnnnirfi and nile development activities calculated from the 1990 baseline of’ 25-mile zone around ihe nonattainment
well before that date. Furthermore. EPA actual emissions (adjusted per section - boundaries If Included In the cnils ”Ions
- ProPOses to require that States that • 182(b)(1)(B)) and must account for any - Inventory). The adjusted base year
request attainment date extensions for net growth in emission (Le. net of inventory (Le., baseline emissions) must
marginal areas (under section 181(a)(5)) growth). While section 182(b)(1) requires contain only actual emissions occurring
snustshowlntheirrequeststhatthey areductionlnVOCemlsslonsofl5 • ththebaseyear.1990 wIth i nthe -.
have made a significant effort to Initiate percent, the 1990 CAAA do not require - designated nonattalnnrent area
- planning activities and rule development any specific numerical percentage of - boundarles.The baseline emissions -
associated with the moderate - - NO. emission reductions prior to 1990 should not Include pie-enactment
classification. and that they have taken The EPA’. fears on typical ozone banked emission credits since they were
steps to begin any necessary monfioring season, weekday voc emissions—an - not actual emissions during the calendar
activities to develop required interpretation of the requirement in - year of enactment. - -
infonnation (such as ambient VOC and section 182(b)(l)(B) for a 15 percent - (1) &4djusted base ycorinventory
NO data) for the modeling analysis that reduction of actual emissions during the calculation. The adjusted base year
- will be required for the moderate “calendar year” of enactment—Is - inventory should be cnlfulated in two -
- dassification. For certain control - consistent with prior EPA jtLince .’j%jg steps. The first step Consists of - • -
- measures which would be requirid - guidance stein. from the fact that the developing a 1990 Inventory of non-
undez the moderate classification, such ozone NAAQS is an hourly standard suobile snthropogenlc VOC emissions.
as JIM. States should show that th y that is generally violated during ozone- The second step consists of determining
have taken any necessary pre1imi ary season weekdays when coüditions are the mobile portion of the inventory after
steps to ensure that the controls could conducave for ozone formation- These the FMVCP and RVP reduction program
be adopted and implemented quickly. ‘ozone seaons are typically the summer (promulgated by the data of enactment
For example. States should consider months. - or required by section 211(h)) are
whel er their legislative and regulatory A 15 percent reduction is generally factored ouL
procudures would enable these controls appropriate for moderate areas to attain The determination of the baseline will
tobelbJIy Implemented and to achieve the ozone NAAQS within the applicable require the use of MOBILE4.1 to model
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13508 Federal Register! Vol 57. To 74 j Thursday April 16. 1992 I Proposed Rules \
the effects of fleet turnover and RVP based on whether the area Is at or 4. State regulations requi ed ur4çr
changes Fo,i996 the’baseline will bei.. ;‘ below the 1996 target level of emissions. section 182(a)(23(BJ submitted In correct
eteredb ppLybth 1990 .YM tO& and not whether the area has achieved a deficiencies In ezisliagJMiprc zumu n’
‘b4iypotheticalemiuloa tactorfor1996. . certain actual reduction relative to . previously required tIM programs.
, . The hypothetical emission factor for having maintained the current control - However. .11 real/actual reductioni
the 2990 baseline In 1998 Is the 1998 sirategy.The (oflowlng formulas • rngardless of orIgin, will contribute to -
emission factor determined by ñmning . describe how to calculate the 1996 target -attuirmefit even If they arenot -‘ - ‘
MO8ILE4.1 usIng 1906 as the evaluation, level of mIssfona., -‘ , -. - •..creditable Ióward..the 15 Percent’
- year and the same Input parameters •‘ ‘ v.r jIas . .. . . .‘.•. .. .... -. .-. -
- .used to describe the FMVCP and SIP -•-. ieeöBuiIneEmlssioss .-. ¶‘ ii ijii n abed to
• requirements In 1990. wIth the addition :.. 1990 Noamotcrvthlde emissions VOC RACF rules orlIM programs are
• of RVP at Opal (or appropriate level for • *(iam Vhff X b etlcal-1996 ‘..‘ not creditable toward the required is
area). Multiplying this Ion factor MOBflEU emission factor) . • percent reductioà any future eeail .cllnns
by thi 1990 Vhff results In 1990 motor ‘. resulting fremineasures sorIated
vehlc!ebuelineendssfonswhlth ‘1 - r°’° wIththere redoorrectioàwouldbe
exclude the n ku1 003 reductions that 4 I 9 j j ... r Joos ‘ meditableJP tE 0n 5$l8
V’ tCd In1906U$ _ • : v f3 k4on n du,I—I. ‘- iSle where the State reikes the
- of fleet turnover wt’er the pze : - • I , . . niIadon limit or changes the
eaacbaentPMCP aid the section. UJ1 R9U W U W U U wvCfltoy i.appllcablllty threshold beyond the level
• m k ons forrn oddicatiOosmeWt
1996 are added to the 1990 Inventory of- fT t s • A i e halonueductIons. Other
• -non-motorveblde .anthropcgenlc VOC. b 8 ) examples of creditable reductions
• ‘missions b i ”We the 1990 total tozeflect itm g fl Include applying regulations to the sew-
heedine “ 1 ions f r 1990. This ... . p&tions of a pre.enautir”t . . -.•
number Is the adjusted base.year . • nonattaimnent area not previously
Inventory needed to calculate the subject to the regUlaliotis, andtdoptlng
‘OlmtflhI Stiifl - 1CM’a listed In section 108(1) that are
___ not already In the SIP.Peductlons
____ ____ achieved through iules adopted
___ -pursuant to any new CTG are creditable.
______________ ouiy to Jhe exteht that the rediictlosi
_____ werenotrequkedbyaSlPcrFlP
_________________________________ ______ -developed under the pie-amended Act.
Fore,cample.anonC [ GrulelnaSlP.
__ sequ lredtobelncluded$nsuchaS lP
______ prior toe cimMit . required an Si
____________________ percent reduction In VOC emissions.
____ nenous areas should ann ener The SIP Is then revised to Include a post-
______ discnñslon on the rate of progress enactment C rC which recommends aOo
demonstration (section IILA.4011 for ‘ pezcent reduction In VOC emissions. To
guIaImu eon changes that might occur the extent that a specific source
before November __ achIeves the 90 percent reduction, only 9
- ‘needed to meet thaL targeL’Some 81T Iim.ct on the u n l O-year3 n nt rate ‘percent would be creditable. In addition.
p 1 m yg agencies may be used to , ____ •. - If a State wasrequired to adopts RACE
, ;tMnWtig)n t zths of the emlsslois - - • (4 edJ frleem Jon , ducrjoaaJn r iIe foia Particular source er the
reduction reqt fred relative to a airrent - dev ’Jopbg the 5 permat reductial . pr -amended Act but failed to do so.
control stralegy proj ctIon (particularly control strategy required to be adoption of a rule for that source would.
for stationary sources), rather than a subar_Itted as a SIP revision. States must be considered part of the RACI fix-ups.’
• target level of emissions. Projections of keep In mind that t . i o ca - Therefore, any reductions achieved by
‘1Is would be used to ___ such a rule would not be creditable.
calculate the required emissions frou cowithig to ward f , ffiuih g the 15. Pie-enactment banked emissions
• - reduction xpressd on such a basis by percent Ius tj mj ion a. .- redw tlo izs credits are not creditable
smpl takb g the differnice between the - •.. toward the 15 percent ptogiess
-4199O prb!Cctlonjlvento y (without . •- n requirement Hov frver. for purposes of •
‘cantrohrapplied) anathe iogo targetS -Federal aedJtablejowa L equIty EPA encourages States to sHow
! !P1M ns . HoweveZ States that thei5.pe ceut progress requiremeu& -. - sources to use such banked emissions
-choose this approach should be aware. except4oithe following: • •‘ - credits for ffsets and netting. When
.t a ,thti996 target tevel is dependent tTheFMVCMaIlpIpe or evaporative States use such banlred credits for - -
;0 )Y.pi .the 1990 emissIons Inventory, standards promulgated priorto 1990. offsets and letting to the extent.
i!! ,celculaUonof an emission.. 2.Federalregulatlons oii ’RW4 - -• otherwisi creditable under the part 0
e i arekfvetotize curr nr. proitiulgatedbyNovemberls. 1990.0?. NSR regulations, these pre-enactment
COStrol 9 tr ,atCgy Pr*CtiOa depends o required under.sectlon 211(h). • emissions credits must be treated as
Jhe aemracyof the 1998 projectIon. 3 State regulations required under growth. Consequently. this growth”
• winch In du , rw4i on the estimate of section 182(a)(2)(A) submItte l to correct must be accounted for. asia the case
- n iv itres.The deficiencies In existing VOC’RACP; - with all other anticipated growth. In
asses nt aiwbether an area has met regulations or previously required RACT ãder to ensure that it does not interfe
- - the R Prmiw!nwent In !9 i6 will be rules. - • - • . - - with the 15 percent rate of progress
UI 5IIM5 UI
factors orme’
wwologies
-
dataforiS__L ovember15 1993 (due
- --
,
‘emits as the —
- — Inl990il •argshlevsl f . 1
ugethvd4 - - - percent demonstration), EPA
- . - th adjusted -___
1996
& ffi 2 .
teve controlstrate les are.
-------
I — —
eqt’rernént(ivbIth Is ’ iet” of gri tb). - ffecftveñess L* v ment& First, a rule. th I i ble t
ti . : •. test meeting EPA’S -reductions when combined with the
tmlsslons are used as offsets, they must protocol requirements can be performed nonc7editable reductlqns Is needed tp -
applied In accord*nr* with the offset- before and after the Improvement Is -. attain the ozone W AQSb 3 j Novàther
ratio prescribed for She area.f concern implemented (for fwtherjnformatlon- is. l99Mhe State ld 3
(e.g., 1.3 to 1 for severe arewet4 All refer to the Mardi 31,1988 memo7andum -acblevlng the emissions redictlcni as
pie-enactment banked c ed1ts must be - fromJohnS Seltz. Director Stationary andy as possible. For that matter, any ‘
Included hi the nonattainment areas -. -. Source CompIIaiw e Division. to Regional moderate area abould plan on -:- -- -.
attainment demonstration for ozone to• Air DIvIsIon,Dlrectors.vegarding - iinplenientlng control measures as
the extent that the State expects that “Implementation of Rule Effectiveness expeditiously as practicable, since EPA - -.
suthcredItswilIbeusedforoffsetso •- -Studies”).Forexample,ifnde ‘ iv1uIookataIrqualltydatafor1994- -
• netting prior to attainment of the effectiveness Increases from 50 to 75’ - - ig to determine If a inó ierate area hal
ambient standards. Qedits used after .jement then the emlulcms reductions attained the o’ ’° NAAQS. SectIon,
that date will need to be consistent with associated with this tnt wovement would - 382(b)(Z) sequk s EPA todetermbm
- the area’s plan for maintenance of the berm&tsble.&cbnd,Ifthidefault, wJth1nOmon&aftè an e plIcable ; r.-
• ambient standard. The EPA expects to value of 80 percent Is assumed before ath tn!nent date u hetber the area
provide add1Hon I darificatlon on the - - :the Improvement md an EPA protocol - attaIn d thi sI n d bythatdate,
use of banked m1ssIon . In Its NSR •- - test Ii performed after the Improvement,, VhJth ivill dictati Ihema ófllrimost.
• •. -.:. - recP$ysatsdfakqbaU dutEpriorto
States can only count “ 'leIons .. Is creditable. Thus If the EPA Protocol - that date. y delaying the’ -
• seductions toward the 15 percent - • :- te in .lkj* es anUS percent rule - implement iicfineasures untIl 1906.
requirement If audi emissions meet the eifectlvenees. then the Increase In - and thus dela 4ng the resulting -
creditability and reduction - - emIvIons reductions assodated with • emissions reductions, moderate areas -
• requirements. All creditable emission - the Improvement from 80 toSS percent be ifled as serious areai
reductions must be real, permanent, and ouId be creditable toward meeting the b c mo flj
enforoeabl& States must keep careful -. VOC progress requirement NIbs EPA be achieved early eno gb to affect the -
records of all emissions reductions to protocol test h aII tes that the 80 air quality and to attain the mope
ensure that the same reductions are not - -percent default was Ino nàt and the r a s In fa any regub t1ons --
“double-counted” or, more siniply, used zvle effectiveness was-eclilly less than i i
- more than one lime (Lc.jedUctions - 80 percent then the “ ',‘on . Inventory percent lets of progreis re hemnentto
- cannot be used for offsets andio meet amid the 18 percent requirement must be attain theozeis NAAQSinustbe - - , -
- the 15 percent rate of pi ’ogrekJ - - ____ - - -‘ - - submitted with the poptiol strèt jvb
equirenient). - - • — Ibe CAAA require tilt the 15 percent November15 199s.per the requirement
Many states with pie-existing - - emissions reductions come from the . ciflcáii mi VOC and NO -
onatfalnmcilt areas have already - baseline emissions. The baseline
lopted rules d 9n1ng RACT for most of ale lafinid to be all
te largersources, Including non-CrC emin one In the area,” (less requIie I due by November is. isos. - - - -
- Categories. In auth cese& there Is adjustments) which EPA Interprets to - A moderate nonaitah n ii area can - -
considerable concern about what -mean emissions e’n ”” tbg from the achieve loss than lbs 15 percent
additional measures are needed to meet designated nonatfalmnPnt area. All • red reductions umler certain rather -
the 15 percent rate of progress - IpiniQalons reductions must therefore circumstances. The State
requirement - come from within the designated must demonstrate that the area has an
One method of achieving creditable nOflatt Inmpiit area. of course, NSR program equivalent to the
reductions from stationary sources In emissions reduction strategies applied to ements In e*trelne areas (section
such areas is to Improve Implementation sources just outside the nonatthlnment • 182(e)). except that “major iource” must’
of rules for existing regulations. This is area may have a beneficial effect on the Include any source that emits. or has the
jeferred to as “rule effectiveness” , pionattnInm nt problem within the - potential to emit, S tonslyear.
Improvement These Improvements are designated area. -• ‘ - Additionally, .11 maJor (do va to
subject o the same creditability After the control ategy - - S tons per year) In the area-must be -
constraints as are the other emissions developed, the regulations needed to iSqUlled to have RACT-level contiuls.
reductions. For example, rule Implement the control strategy must be The plan must also Include all measures
- effectiveness Improvements resulting developed and adopted by the State. - that can be feasibly Implemented n the
from corrections to the existing VOC The control strategy along with the area, in light of technologIcal
RACT rules made pursuant to sectIon ‘- assodated regulations must be - achievability. The term “technological
182(a) are not creditable. Rule - submitted to EPA by November 15,1993. acblevabthty” refers to measures that
effectiveness Improvements must reflect The-adjusted base year Inventory and be successfully implemented In
real emissions reductions resulting from the 1998 projection Inventory (without -actual practice, not measures that - -
speciftc Implementation program - - control measure redyction applied) - merely appear feasible In a research
Improvements. Actual emlssions should be submitted no later than vetting, for mple. The EPA will -
reductions must result from Improvliig November is. 1991. - - consider on an area-by-area basis what
.jrile effectiveness, simply Improving the States should be aware of the - these measures may be, with no
methods for calculating rule - Implications of late Implementation of presumption beyond-that specifically
effectiveness Is not creditable. - control measures Section 182(b)(1)(A) given in the last sentence of section
Rule effeUliv esa Improvements requires that the control strategy contain 182(b)(1)(A)(1I). which states to qualify
resulting In emissions reductions must provisions for such specific annual for a less than 15 percent reduction, the
Jie adequatelydocemnented before being reductions as necessary to attain the State must at least demonstrate that the
r ted toward meeting the rate of standard by the applicable attainment SIP for the area Includes all measures
ru 5 requirement Two methods date. If the control strategy effort for a achieved In practice by sources In the
exist for adequately documenting rule - moderate area shows that an amount - same source category.in nonattainment
-------
• ‘Mt4f*rthe national primary ambient
alrRuallty standard for ozone.” This
requirement n be met through
applying ‘A .approved modeling -weu pusswIy m nng uw .s
• techiniques described In the current • itselL’If the ‘otber’f area that err
version of EPA ’. ‘ Gu1de11ne on Air •iffçthrgair ual1ty levels In this -
Quality Models sed ”The Urban ‘ .tabdeEatI area sic daulfled as serious
‘AbSbedModeL a pbotocIi emIca1 arid ,. -orsevexe tho.á areas will be iedurlnE
deIMsiecmnthended for modeling’. ‘ . - ‘ “ “ va Li.v r4IiflDfrfln%a
spplicudcus Invohing enthe ban
- lncrdertoatta lnthe.tandard.ThatIs,
• addt1qii foimoderatiarèu • •thesr ’oth eas cn LI aUUbebavInL
contalied .ólélyin one State. the •. ‘algnlflcáteffáiaoothe modeiat area
• kLJmde dpflc npIrlcal at the time when thimodesate area.,.
.Khreth Mo 1 ”lhyApproacb (EI iA) -mustdemon ltnI miant.Ths sans
may be an acceptable modeling pbenoánoucan alsp8rIse In areas that
• technlque.llie State should thnsult with may be Impacted by traniport but err
EPA prior to sTelection ala modeling not yet In a transport region established
technique. UEK Is used, the under section VOA or sectIon 184.
attahmi-”t demonstration Is due by The EPA believes that these situation
November1993. are somewhat anaidgous to the
In other cases, a Stite nlght choose to nitnatlons addressed In section 182 (h)
utilize a photocheinical grid model for rural transport areas and hi section
Instead of EI AA Grid modeling will 182 (J) for multi-State ozone -.
- genera ly providea better tool for. • nonattátni i.”t areas. Section 82(h)
d ds1onmiiIr’.,s and the necessary • iecogulzes that the ozone problem In a.
âddiliónal tIme may. therefore, be . rural k sport crew Is almo,teatbely
justified. ln eucb cases, States should attributable to emissions In an . 11 w1 d
coiu1I wlthEPAon a case4)y. erea ’ .Therefoze, the.only requirements
“baslson, n acceptable ’eppzoach to forth, rural area are the minimal
• - -meeting the section 1a2(b)(1)(A) requirements specified for marginal
-requirement through an lnleiImSW . areas, the assumption being that the “
bmltWby ’Novembetlee 3 and a • controls In the upwind area will solve’ •
.completed aftahu’ient demonstration by --the problem In the rural transport area
Aj’Ndvemberigat.The lnterfm submittal as welL n a&mll . way, section
i would include, at a minimum, evidence 1821J)(2) for multi-State nonattainment
c: that gild modeling Is well under way -- areas and section 1798 for International
conimitmeutiwlthethedul& là ‘ areas recognize that en area In ope State
.. mplete the modeling and submit ft as • ipay not be able todemonstrate:-
rç isImbyNovethber 1994. The attalnmemt If otherStatesor ama(s) In
compIet?d attalumbent demonstration • another coentry4o not meet similar
‘ wdUtd Iñcl(id&Iiy additional contro’s. requirements under section 182. In sUch
neededfor aftahun$nL Separate • - cases, eva though the area would not
:ettnilufltflt demonstration requirements be able to demonstrate attainment, the
• . - - • • , . 3 ..s” ‘ - ‘ • - • - •
- areas of the next higher classillcatioi. - apply to mUIU-SL Ie moderate Sreas as ‘sanction PrOviSioflS 9 JSecliOill7S a
The tens “achieved in practice” Is described In section JIL&9 ‘ .j, irnOt apply . ‘. —
intended to include those measures that - When projecting motor vehicle • . in the above’cases. therejm 3 ...
have been successfully implemented in emIssIons for the atf ln nent , .. • -‘recognition Iii the CAAA thatret some
one or more uonattalnment area or the demonstration, Stateá should use the polnt,an ai ea Jpg’affecte&byi •
next higher category. The waiver for the same procedures as given In EPA V) .f aemuIoflsfrOUr notheoarea s)maye
15 percent progress requirement does - forecasting and tieclclag guidance for • .b Jo j ileye.snt 1 4ent emissions
not, ender section 182 (e ). apply to &inoderate Cononmitainment areas. The ieductions’crnItrowu iodemcnstrate, ,
nonatPIlii . iIt areas dassifled as :-use of this guidance lsThn ted to •. . -: .attalnmenbmn these cases the area Is
extreme. - • projecting motqrv Jemmtsaions. and relieved from certain requirements In -
MMuhI Slateo one onattaIninent”. the Information on the reporting the CAAA which would require.
“‘a nwshcuid referto section (HLA.9) for requirements for moderate CO area Is . additional controls. There is no explith
• ‘T tlf fostructioos-oa-coordInathg SIP” iot appliáb1e. - . , •. - recognition In the CAAA of this -
• - I 5f fl 5 ’ cmdeveloplng the - ‘Tho EPA i nlixie that In some cases - bother
t mntdne t ation • . 4 alndei cnsfradans wiflbe . - •. ‘4eUibew e r,1bato d . flm .
- By n eelingThe specific 15 percent ‘anuplicated by the Impact of ozone and BItuatioas(aidlscussed above)are
rednctlon requirement discussed above,. aouuor transpit,.ud b the FP. ; I1kely4oáliáaid thaLaicasonable.
the Staieávlll also satisfy the general - —: reqnfr ng tj and gU Lm. ,4 ea.Itrnms approacfrIsneededJoossune equItaU.
RFPiequfresiiáts of section 172(c)(2) for - that applytsT ñrëaiofdifferent. - - 9reatmentoftha e rea&andsxpeditIous .
- the time discus - - i. disffbtIons.Yoráample.modezata “aUalnmentoftheutandard. • -
t U on arii located withIflthe transport region -, - In particular. there are two situations
‘ 1 req a ore --S. . lnwblthanareanilghtbesubjectso .
moderate ozone nonatininnent area to deadlin*and to the section 182(b)(ZXA) ‘ sdd1tIonal emissions reductions. •
• - proi,lde fofspedflc nnual r ductions In requiremeutto pra!Ide annual ëmlss 1 ons ts related to the - -
OONO. ssIons a ”. . . ”’v, . reductions lulls plan to attain by the ons on o a en the filet.
deadline. Houwvur,lhls area Is (at least, sltnaftouranareamlsht .be’rece iv lne ..
presumptively) being affected by
such high levels of tiinsport that e n If ..
- lticduced its “ramaticallyiri
‘(e,g totally . Mth ated Its owfl?
ss1ons) 4helncombrg outme sod 4 ’.
mUnuet cayfOla àp pfibe
standard beyond the applicable
. ttmInmmnt date Li the second.sltuatlon,a
the area inrght beebletoachieve : -
additionalredudlons (beyond those
already required under section 182).
2ven ivhere those àddMcaal reductIcos
could be achieved to dqmonstrate - -
atfmhn n t, th, question arises whether
- Itla equitable to require those.i
reductions orb allow more time forthe
-zed ctlons In the upwlnd” area to take
- place, As deücrlbed above, however, the
utainte provides no s relief fora
‘these sltuationa.3be aria does have the
option of requestlngto be dansifledlo
the next higher classification. Thus, -
where the demonstration of attainment
Is complicated by transport betweeii.
two areas of different classifications, the
State Is .011 responsible for developing
and submitting demonstrations which
show that the standard will be attained
by the applicable date. In other words,
the State must providelor çuffldent. -
emIssions inductions on a schedule that
wIll-ensure attainment hi lb moderate.
area, for example; withIn 8 years after
enactment. The EPA believes that the
wording fnsectlonla2(b)( IXA)(l) ‘ -
requires the State to develop a plan’
providing such emlssionsreductlons.:
Z (5 ConUn encymeosureg - e
general requirements br nonattainmnent
plans under section 172(c)(9) specify
that each plan must contain additional
- measures that will take effect without
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Federal Register / Vol 57. No. LThwsda,. April 16. 1992 / Proposed Rules
13511
I ther action by the State or EPA if an needed. There1ore.-EPA.wflL interpret’
area ither fails to make RFPor to attain the Act to require States wIthmoderate
the standard by the applicable date. - ‘end above ozone nosattainmeni areas-a
These provisions do not apply to . ‘to Include sufficient contlpgencyA
marginal ozone nonattainment areas measures in the November1993 0 ,
(section 182(a)). This important Issue for ‘submittal soihat.”upon mplementation
marginal areas Is discussed furtlf r f uch aures.addiUpnaln Imions,
under the section On bump-ups reductions of upfâ rcent of.tht.s
(reclassificatloni upon failure to attain ‘emissions lathe adjusted base yeare..
the standard). Mditlonal contingency
provisions are included In section ‘lbat wW cure the Identlfled-falluis) 1
182(c)(9) for’seiious.czone . would.beacblevedin t j JpJlow1ng,
rnonattalnnl.ntiareu and In secijoni th. yeaz’lnwblth lltd,l1w bas bves, -
1WsX3)for-COnonanem ’ identifleddh1s ‘addlticàl” reduction
wlthde,Ignjrajuesaboye 32.Z ppm - - would ensure that progress tOWard
These litter provisions are similar to the. attalnin ”t occurs at a site
section 12(c)(9) requirements except that specified under.the PR -
that the focus 11 section 192 (ozone requirements for moderate areas Le. 3
areas) Is on macflag emissions- Percent per Year). and that the State will
reductions milestones (section 182j ) . achieve these reductions while-
and the focus In section 197 (CO areas) conducting additional central measure
is a consistency between previously development and lmt,l iitadon as
pebjected and actual or subsequently necessary to correct the shortfall In
projIcted VMT levels, as well as failure emissions reductions or to adopt newly.
to attain by the required deadline. These required measures resulting from the
contingency measures for SIP ’s, u bump-up to a hIgher classification.
iequlred under the CMA. supersede Under this approach, the State would
the contingency requirements contained have 1 year to modify its SIP and take
in the 2982 ozone and CO SJPgeIdance. other cwrecUve cUon needed to ensure
46 FR 7182 (January 21,1981). that milestones are achieved and that
Ozone areas classified as moderate or ‘.RFP toward attaInment continues.,.-
shove must Include In their submittaig, However, if a State can show that its -
wbIcbar ue by November1 5, 1993es be revised to correct y
set by a , u ti s 172(b). - i pOssible failure in less thani yearrthen
onfl g ncymeunree’to-be . . • .-- . ProportlonaUyle’s than percent may
iinpl”.”tcd If RFP Is-not -uchieved or If be considered. In the case of iluderate
i ardj s* inø J areas, contingency measures would be
,plicab1i dat&ThIs contingency . needed when the area fails tO attain the
submittal date Is appropriate since . standard by the attMntii.iit date (o for
Stites must demonstrate attainment of’ serious and above areas, If the area fails
the-IS percent milestone at this flm. to meet the rate-of-progress
The 1990 CAAA do not specify how e i 1rements for any milestone other
many contingency measures are needed than one felling on an at’ ”t year.
or the InRgrftude of emissions . . e.g.. the 15 percent required by the end
reductiOns thatmustbeprovldedby of1996).Uthearea fallstoattalnait
these measures. Aisumlug that .11 of the Would be bumped up to the serious
may fail to produà their c lassification’.and become subject to--
I reducfious, cns- Interpretation the requlremáts that apply to that -.
AAis thit a-State classlflcation. -Therefore. the
tiffidOzit coiiingency . contingency measures wouldbO
II thI November15, gg p Implemented while th State developed
for this entire shortfalL . and adopted tlz new meu
the State would have to associated with the serious
the measures needed to classification. - -
nusslons. - . - One way t},at contingency measures
The EP& could meet this requirement Is by
.. requiring thee Hy-iwptëmenthip of
i the- measures scheduled for Implementation
rmanyi havn
inldei ying and adoptini sufficient
ñtéjsure$ to RFP and other
reqiilreñzents.-
ëontjngeacy
measure, should, at a minimum. ensure
that an appropriate level of emiss(o’Le
reãiiulon progress continues to be made
if al a mfleflt.efRFp Is not achieved and
planning by the State I,
ate later date In the SIP. For example. a
State could include as a contingency
measure the requirements that measures
which would take place In later years if
the area met Its RFP target or attainment
deadllne would take effe earlier If the
areadidnotineetitsRFPtai getor
attalirnamI deadline. WIthin 1 year of
the triggering of a-contlngencyrequlrlng
the endy Implementation of control
- measures, the State must submits
revision to the SW containing whatever
additional measures will be needed to
backfill the SIP with repismesnoitt
meaanrea to cure any eventual shortfall
that would oc as the result of the
early use of the contingency measure.
IfEPAaotiflcsanarcithatashortfall
Oxlst., and that the shortfall Is less than
.3 percent. the State may choose which
• Contingency measures In Its fntital (3
percent)cont lngencyplaO .to implement
tomeet the shortfalL.. .:.-
The’ A fl 7 tb W3.peremt.
- thigencywill be adeq iati for mo t
• ‘areaeibowever ,theie Is the possibility’. --
- that In some cases 3 percent may be , .
Inadequate especlallyif corrective
. c lmi Is otInstltuted Ins t1mely -
-..pzkr toa mIlestone date. ::
- . To address this possible shortfall (i.e.,
-iore than a 3perceot shortfall). E A
•will require moderateand above azeat -
to submit both ánOez c ’snea,ures
providing for a 3-percent ducUon and
on enforceable commitmeatto submit.,
an annual fr cIdn prograidescribing- -
the degree to wblch it had cliieved Its
____ projected annual emissiOns reduction -
(see “T adm1ng Pi a n Impl.m.ntation.’
- section IILA.3(d)). In that gnnnil report.
theStaternustdes ribewhatactionsit
--will take tomakeupfoca iy shortfall- -.
before thiuixt milestoni, e.g.. adopt
aid lrnplinomt additional measures
(aside fro th . contingency measure.)-
soastoy cvvutfaflureto.meet ’the
milestone and therifore lot trIg gering -
the 3-percent ontlnàency measures.
Alternatively, the States must provide
for additlolal contIngenc measures
sufficient to cover the additional -- . -
shortfall expected.due to,tbe mI1estone.’t .
failure. WIthin 1year frás the sulmlttal -
ofiuth.repozt the State must submit
- whatever addltiqnal i easurei will be
needed to cure this shortfalL Therefore.
morethanthe’3pereenrof. •,
•Thum ’- —”, ve .’ ’ — woeld b. Ia sddiilon contingelicy measures áould be
to thus. that web .besdy.cbeduled Ia000WIa available ass reserve. even tho zgh EPA
scuard .oce with the plea forth. ar
‘Th.adJveutoiyled a1 would only quI e sufficient -. - -- . - -
venioiy .p.cI1J.db contingency measures tobe -
- implemented to compensate for the
‘The moderate eras imdd &ctu .lly be bumped degree of failure. In other words, a -
up tositheroithe ae*t higher JkUIIiCatIOfls IL .-. ihortfat! of 2 percent would require
serious or severe are.. canno he bumped up to
esireme farl.Uuie to attain). II u,tlfled by the . impldrv-c - [ alien of sufficient measures to
quality level. (the design value) at the time, make up for the 2 percent. not the entire
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stegisler I Vol. 57. No. 74 / Thursday. April 16. 1992 / Proposed Rules’
• 3 p cent (o; possibly more.due to the reductions are needed to attain) by “ requkedto attain the standai& be
• - above procedure). •! J November15, 1996..,..... .i . : .... . .- Is required to adopt 11 CrC’s before
Sections 172(c)(9). 182(c)(9), and• - - “ The primary means of demonstrating- • November15. 1993 (aectio 183).- 1.’ -•
IW(a)(3) specify that the conlingenc reteofprcgresswifl-be4hronghthe% Although EPA has not yet Issued these -
• easures .sbaIl $ake .effectwithout . aperiodicInventozies(Le., complete. - Ii CrC ’s. EPA has Issued a crc
- ‘furtheractionby the Stale.or.the . actual Inventories) submitted every 3 document In which it lists the 11 CTC
• Mm1nIstratonu The EPA Interprets this years. At this tIme EPA Intends to rely that Ihe.Agency plan, to Issue In
requirement to be that no further i c on existing reporting requirements such , accordance with section i83. and -
rulemkecMUee bi)theSIateior’ as emissions statements, compliance sabllshes the dma table. for submittal
‘EPAwould-beneeded to Implement the certifications, periodic inventories, and of.RACT rules applicable to the sources
.conting,i cymeasuress.The EPA the annual MRS update, rather than covered by those CTC’s. This document
recognizes that certain actions, such as Imposing additional repoxtlng is located in appendix K-- ”
notification of sources, modification of.- i uhemènts on the SIates - ‘;Undâ the second set of RACY
•... .pennits, etc., would pxobal4y be needed • e o r ouoaai sozircstiejinth ) requirements (subparagraph (B)), the
beiore a measure could be nted or ozone a ”e”r ar astatomadopi provIsions app)ying
• elfectlv4y. States must show that their classified aimoderate areas, the term ‘CY requ1rementsitoall’VOO ources .
—con*Iu cy measures can be- • ‘ “major stationary source,” for ptnposes
,lmplemented with vih t i ) further of the NSR program and (a. discussed ‘dateofenacntm th newJew even
actionan their part and.wfth no- below) the RACY requirements for• 1 jf the CrC was not p rev1oüsty
additional lAlfing actions such as :major non.CYG sources, means any applicable In the area wider the
: public bearings o,Ii gW*t1ve review. In stationary source that emits or has the previous law. Under the requirements
general, WA will expect all actions potential Ioam lt400 tônsiper’yearou - established for Implementlflg the Act
needed to qifect felt Impla ” entadon of .• . prior to the 1990 CAAA, some’
the neaemes to occur wIthin 60 days (f)R4CT tth pe -(1) nonattainment areas were not required
afterEPAnotifleatheStateofltsfallure. -A cobiligy. require - toapplyRACTtoall sotnrcesforwh lch
TiucaFf p,cn mpIemenwuom moderate areas to adopt RACY there were CYG’s. These Indude areas:
on DJLIAAJ of the Act requires standards for three types of sources or that originally projected attainment by
States with ozone nonattainment area omee categories. This r qufrement I. In’ 1982 and that were not subject to a later
• classified as moderate or higher to hddidon to the RACF ’t’flx rzp’t . EPA call letter for SIP revisions. These
submit plans that conWa certain requirement of section 182(a)(2XA). areas had to apply RACY for the
“.peuiflc annual reductIons in ‘ 1 ons discussed In section IILA.2.(b) above. - categories covered by the Croi p land 11
- wf’vcladle âjulccompound. and- ’ The RACY catch-up req Lement Is- - CrC’s that bad been leaned before the
- ‘ozMeüfrdtrogenas neceuany to attaln - meant to ensure that all moderate and • 1982 attalnme”t date: however, they
- -sth aatiosalcxImaiy amblenlufr quality. ‘above nonatt InInentareas. regardless were not required to ipply RACrtothe
.stOndid tor j4hea(rnluvnhIu4ji. idmeof’Ie Ignn tIoun haveinp1ace all categories covered by th Croupm -
‘date appbIewi erthIsAcL” ‘RACY Icriourca categories covered byc CYG’.. which were Issued after the 1982
- - Ev tbough the 1990 CAAA contain the CTG’s and for major .omrms th at•are attah .inent date. Thus, for ex uip)e. th
moreapedfiOatfons-forâaluaflng -. nct ubject to a C1 Stated differently,- new law requires any nonattaImoent
whether the requked.mk tons. -g . itiequlres moderate and above - - :areas not p ousl* snbjett t6aff1he
redticHons have bee athIevedthan.the •nonat**hi,nent areil thatprevioualy. ‘ClG’e to catth-up nd app RACT:to. .
- Act previously 41d,EPA I elLe às that .-- ‘were-a,tempthom certain (or all) RACY -all sources covered by ill the CrC ’.
additional actions are, needed to assess requirements, to “catch up to thoee ‘documents.Nonattalnment•areas not
- m Stateprog ess In achievIng the’s non I nment areas th*t were .ubjectc previously required to apply RACY to
-mile .tones which occur (far sàlous and tothose re ,l , wente during that earHer sources coveted by Group fflCrC ’s will
- ‘iboveaieas) 6.yqar after enachnPt pedod. ;. - - - . have to do so In the SIP revision.. In•. -
°8fldvv ijr5 ear%ib reafter (aa.. - All States should submit negative addition. areas nrevIously ons1der rural
discussed In action IILA.4.(f))... - - declarations for those source categories -“ ' “ 'ttabunent areas, which had to -
- Furthe or’eecd6nspl(i) and- - - for which they ri notidopthig C rC- apply RACY only to certain major
•4s%. a - . • - -
.J!!cli2) p ny de that all SIP’s must - -: based regulations (because they have no sources In certain CYC catego ies under
q ind1aeniental Omissions, - sources above the CYC recommended prior policy, will have torevise their-
reducUaUi’as needed.to attain by the threshold) regardless of whether such 1 81Fs to apply RACY to all aourvuj.
applicable dafe. - . - - - . negative dedaratlons were made for an Including nonma (or sources that ore
Toniei( thâ eeétlon162(b)(IXA) .- earlier Sfate implementation plan. This cove.d byony C1 ’C.Thls requirement.
requirements, th, tate plans for - is necessary slnce there may now be does not apply. however to RTA’. that
- thoderate and abov ov ”'e areas must sources In the a ftafii ’ ent area that - satisfy iectlonl82(b) ai-dIIcisied ln-
pInl nna1 ixcg(esa(La, ,-the pre fonsly did t d*t . or In areas - section W.A.(g). - - - - - -
•:- P! àtht!ón bf measurës with the where the)oundarfes of the . - - - in the;thlrd case (subparagraph tjj,
apprpriáte-schedulejand the pecte& - n n tthInmont area have expanded. - - States are-to adopt plan . that apply.
emioSfoinsreduct one)that will result there may be sources In the new portion RACY to hil other major stationary -
-,. froustheir control sb tegies. (See - - of tite nonattainment area which should sources of VOC’s In the area, even if no
usaIon under section Ill.A.3.(a), - .- not ha overlooked. — CrC has been Issued -by EPA with . -
equIriment Ia 15 percent reduction in: Under the first category.of. - - respect to that source.’-The burden fells
jcós h aó pzo(ectlonna must be - reqàlrenpents In sectloni82(b)(2) - on the State tWdetermlnu Individual
submlltal .due b -- (subparagraph (Afl,nonatfainmenl.- - RACY rules for each of the sources bra
l . . . .b.eii5, 19 aadmu.t - - , -areas are required to adopt RACY for all “catch-all” RACY rule that would coves.
‘Irolt that thearea will achieve a VOC sources covered by any CYG major nonCYG sources. In the past. -
15pa .. .. ...t nat seduction in VOC- - --document issued by the t1iiiJn1 frator only certain nonattainment areas were
i al jsfrmai ‘whatever additional after enactment and before the area is required to adopt such “non-CYG”
-------
teUeral Register I Vol. 57. No. 74 I Thursday. April 16. 1992 j Propose I Rule5 ‘ ‘ ‘13513 ::‘
RACT rules. Under subparagraph (C). all
-other thoderate to eKlreme -
nonatta nment areas must “Catch up’ by,
• adopting RACY rule requirements for--
•maornon-CTG sources..
2 Shedu1e for sources subject to a
post-enactment CrCdoc” .nt. States.
must adopt RACY rIles In accordance -,
withiheechedulesetforibbiapost.
enactment CYC document. The EPA has -
Issued Its first post-enactment Cit •
document, attached as Appendix £
whlchestabl lshestheljstof thefl
CsEPA planstoissueand ae
applicàbledates forsubmittal oiR*Ct
ules for spaces sub ject ton pát
‘enactmentCTC In the Cit dormnumnt .
EPA has provided that Statesaust
comply with the RACY submittal e
tables established In an applicable C rC.
These time Iable will establish RACY -.
submittal dates and implementation
dates.However lfuoCCbMbee
issued and, therefore, no time table has
been established by November 15,1993
for âne or more source categories, thó
• Statemust submit RACY rules ‘ ‘
applicable to that source or source
category by November15, 199L1n such
a case, those rules must provide that the
- sopree must Implement those
requirements by May16. 1995. #
• Areas must submit RACr ’catcb itir
rulesforeouztescoveredbyapref
enactment Q’Cand for major sotirces
not subject to a pre.enachn ’it C rC or
coveredbytheCTGdocument ln -
ApjendlxE In the form of a SIP revision
requests wIthin 2 years c i enactment.
(i.e.. by November16. 1992). This,
submittal should aide Identify sources
that are major but which are subject to a
post-enactment Cit document The SIP -
revWcsismust provide for the.
Implemeptation of the RACY measures
• expeditiously as practicable, but no
later than May31. 1996.-. -
3j 1nta,p ce wUA7 carry rertucdj )
PA Is rè ulreci to promulgate
•mav . ,umm achievable control technology
(MACI) standards under sectIon 112 for
sources which emit hazardous air
pollutants (ate minimum, the 189.. -
pdlluthntsbsied In section 112(bfll)).
t içse standards will be promulgated by
blovembe, i5, 0O (section 11 (efl. The
- EPA must promulgate the first setof
MACl ,tandakds by November16. 2992.
SectIon 112 also provides a me 4 ai 4 .v1 -
- whereby sources may elect to defer
compliance with an applicable standard
- by achieving an eaily 90 percent (95
percent lot particulate matter reduction
• m.unLiuunofhaz ,dme air pollutants
aI - : t. ..l unit.s-(section 112(i)(5)). For
5 u suh;cct.tn the hrst round of
MACTstaz c Ia. a Jource can obtain
8-yenr umsiontif it commits to
i82 b)(3) mandte that States submit a
-. revised SIP in) November16. 1992 that--
requires owners or.operators of gasoline
4lspenslng systems to Install and-
operate gasolinp vehicle refueling vapor
recovery ( “Stageirj systems Inqzone
noñattalnment tmreas designated as
modera(e and above. Private fueling
facilities (such as government and - -.
company fleet failing facilities) aswell
as retailers, are subject to the Stage II
requirements. Stage U Is required át
gasoline dlspeiising facilities that. -
dispense more than 10.000 gallons of
gasoline per month (or 50000 gallons per
month for the .ndependent small-
business marketers’ defined under
-‘make the 90 percent reduction prior to .f7 Guid JJnder section 383, EPA
• proposal of the MACT standard and ‘ TtTbissue several forms of juidance That
actually achieves the 90 percent. . should help the States meet the - -
reduction prior to January 1.1994. For- - requirements of section 182(bJ(2). The
later standards, the applicant must ‘- EPA Is equlred to issue CTC’s for VDC
demonstrate that the 90 percent - -- - -. emissions from 11 àtegories or -
reduction has been achieved prior ta. - stationary sources for which CrC ’s have
proposal of the applicable MACI’ - not previously been Issued. In addition.
standard. Therefore . within the next few EPA must issue CIC’s to control VOC-
months, the sources that are affected by - emissions from aerospace coatings and
the first phase of MAcretandards may; so1v its and to control emissions from
begin to submit enforcesble ‘ - - paints. coatings. ad solvents used In-. ‘-
-- colnmitmenta for the early roductions eblpbulldlngoperatlons and ship repair
• - ‘. •. -. ll of these documents are due within 3
- - -In some Instñcee, aiourcè that elects years of enactment. The EPA must alio -•
• to participate In the early reductiomi •. COndUCt * study of VOC emissions from
• prcgramwill also b subject to aluture’ °°° products end -
RACY requlrementimder section 182. - , submit a report tO Congress not later
Sources maybe hesitant to participate than S years after .nnclment Based on,
In the early reduct lois piogram because the study and report, EPA Is required to
of the uncertainty regarding future, as •zegu1atecatego les of consumer and
yet unspecified. RACY requirements. To coinmerilal products within the time
aflevhlte con about certain RACY - .frame set forth In section 283(e)(3)(A).
requirements, where a sourceisnot - - In eaditlon, the CAA require EPA to’’
- subject to a RACY requirement (State Is -i -alternative control
not yet obligated to adopt mu t er the techniques (ACr.) for all catagoriei of
CAAA) at the time It submits emly. etatIOna! sQurCes of VOC and NOx
reductions plan but subsequenUy- that emit or have the potential to emit 25
becomes subject to such a requirement. ‘ ° 1 Per year or more of such pollutant
EPA bçlleves that It Is reasonable docum”tt axe also due within I
consider the early reductions program In ‘Y ” of enactment While these • -
Its analysis of what RACY l for that’ .. documents will not contain presumptive-
source.in -RACY, they will óbntaln much of the
--does submit a S W revls1on wIthnew - information on control - - -
RACY requirements that would b.- OlOgie 5, coats, etc. whIc i canbe -
applicable to a-source that elected to by the States In supporting RACY
participate In the early reductiOns- . - determInatIons maJom non -C [ G - ‘
program. EPA will ccnsi1Ie tbe- . - -; -
- reductions made through the Finally, within I ear01enactinent.
a factor In determining If thesource has - EPA Is to Issue gu$ ”e on evaluating -
Impl.nmmmted a RACY levelOf controL themelative cost effectiveness of various
The EPA anticipates that the fact that a control optlon3for controlling emissions
source has made a 90 percent reductIon from e dsthig statIonAry sources that. -
In overall VOC emissions from specified C I1tribUtS to n n&I’ 1 ” ’t In addition.’
emission, points will bee major un IP section 108(b). EPA Is to establish
- consideration In establishing RACY for a central data base to make Information
those emissions points.’ 1l Is Issue will available concerning emissions control
be discussed In more detail In the’ teChflOlo97. “ glthirnation from -
___on the early reductions - SWP U
- - - -
As a general nIle 1 EPA will not revisit
the RACY Issue once the deferment of
compliance wlt)r a MACI’ sInnArd has
ended. In most cases , the MACI’ -
• controls should be jnore stringent than
the reductlonsichleved through the
ea,Iy red fctIons rogram. Therefore.
once MACT Is In place, VOC emissions
should not Increase.
• Thase pdsdplas am bamd as tin
that a O sm 6 sot ,edods it, biraidoas air
frlt..s. .e.by raplàd them with oobawdou.
VOCLWbi!eEPAweCoçml a. thia...Ie Idmam.- -
Im eded hazardous air po t ’--tL ‘A
wustdao* be able to coselder this typ. of peoejam
as• fadee 6 ea*aWi,bln RACT in the powes If It -
does sot .cbicse any reef reductious of VOC
-------
- . .. .- ,..., ..; • - -‘-S
) —— . —S. S S . — . S
. 13514 FiRe IVoL57,No.74/Thursday,Apr1l*1992/PrOposedRuie .
• - -
• zection 324). States must require Stage II AImhilitlratoipursuant to section . . . w111 again condItIonaI approve SIP
• tobeeffective underaapedfied phase- 182(b)(3)(A ) . .• • - ‘. - rev1slonsbasedupon tments
In schedule of 0 months after the State. MdltIonal Stage 11 provisIons . . submitted prompily a de4’ tIon to
adopts the required regulation for • èontalned In section 202(a)(0) concern adopt If M programs w dn 1y of
• stations constructed after November i5 onboard (on-the-vehicle) vehicle conditional plan ap ..J , or consistent
• 190 year after the adoption date for refueling control standarde. which are to with EPA guidance. w hever Is sooner
et t1ono dispensing at least 100,000: be developed after consultation with the Jn any areas newly mLu ct tolIM
g llmi per month, based on the 2-year Secretary of T ansportat1on regarding, requirements by virlimed the boundary
period before the adoption date; and 2 the safety of onboard systems. Under change. - -• . . -
years after the adoption date for .11 this section, States are not required to • The EPA mqectato ue the policy
other facilities required to Install - apply the Stage II requirements of’S for t/M areas In the ns future. When
controls. Also, as appropriate. EPA shall - section 182(b)(3), -gasollne V PO1 -: - published, the poIIcy l1M programs
Issue guidance concerning the . - recovery, to facilities located in will state the date wino such programs
.effectlvenesa of Stage U systems. ‘..moderate ozone areas If EPA ie to be ImplementeLStates that have;
Stage II systems have been installed - promulgates onbo rd refueling control - both basic and____
and operated In California for over 10 standards. These provisions will be .“ opt to Implement Cnhem!d programs 1n
years and In some other portion of the iddreesed In a separate Pederal Register Stltee
• countryforashorterperiod.Areaswlth àotice. - “ wh lcbareonly requhedtolnrplement
existing Stage 11 programs have been (h) Basic 1/14 Section 182(b)(4) basic programs must ishmil SIP
Iniplementing their programs using the requires moderate ozone nonattahunent , e ,j j pj fn j / M jri g -
• same.approacb used In California. The areas to Implement basiC J/M programs -. any revised policy. 1 guidance will
• California Air Resources Board (CAI1B) at least as stringent as those ?equired In er the elements cUre SIP revision.
has been testing and certifying systems. section 182(s)(z)(B) Immediately upon In the event that a moderate nn , -
for at least 05 percent vapor recovery - - enactment, regardless of whether an JIM a taioment area s to attain the
using establlshed test procedures and program was previOusly required. • ‘szone standard by tireapplicable
methods. Once a system has been - Th foro, all moderate areas must - deadline or extended deadline, and Is -
certified. a station can Install the same either continue existing J/M programs to an-
• Stage II system design without needing and make corrections to programs 1nl ani a1lM prugra must be
• to test for 96 percent control re9uired by existing policy or to - i don ãiteria
effectiv.”ert- To ensure that they are rrograms committed to in the SIP 1n (an rirbanlied area defined by the
- properly Installed and maintained. effect at enavlmpnt, whichever Is more au of the CensusinI980 , wIth a
systems are tested with lowcost vapor stringent or develop basic JIM - population greater tbm200,0(!)) are met.
- Jsnbase.and blockage tests at . programs consistent with EPA guidRilce. m EPA Will, mrder ct1n 102(1),
- Installation and then subjected to - These areas must also submit revisions require i SIP revisloota pravhle fo an -
periodic enforcement Inspections. - - 5 addraulng revised basic J/M program - - enhanced J/M pe t,nowlthfn 2 years of
-. The EPA Intends to require all States policy for new and existing programs the tthfl . tion. A. iitIated by
to adopt a 5 1mfl 5 Stage U pxo m - once revised policy Is publisberL Thai, section 202(m). the ththtrator will
-approach. That le, Statts ,iwould be M programs axe required hr the- ‘ ___
rsquiredtopresóIbetheuse ,(Stagefl ‘ banlzedareaport lonsof the -
- systems that achieve at leasiOS percent• nonattainment area. r--- ,. - • - . manufacturers to h diagnostic - -
control of VOCs andil It ra n pexly The statute requires these pIano’ . on all new l t.duty vehicles -
Installed aid operatedY - ’ ‘ -t - “lmmediateIy ” after enactment, even - - ;and lli duly s. . prvpcee.of
Asaua lsernat lvetotest ingeach though lnafewcaeessechareasmaybe thesesystemsistol . .difyandtrack
station for 96 percent control - - -. ‘subject to this requirement for the first - “1 s1on4elated s stmrs deterioration
effedluwess, States may require - - tlms.The EPA would normally provide er mel A C—4li4 to section ; -
• - installed Stage U systems to be certified ‘ t least 1 year for an area newly subject’ 202(niX3 ) , within 2 ons of EPA’s. - -
to achieve at least 96 percent either by to Buch requirements to adopt and promulgating reguIa rs requiring -
- CAP.B, or.by using CARS test • Implement an I/M program. The EPA - States to do ie, all with J/M
procedurue and methods or equivalent- will use Its authority under the iew programs must amend their SIP to
• - test procedures and methods developed iection flO(kX4) to con IItIonally px vide for InsPectis. of these aiboard
-by the Stake and submitted as a SIP approve basic J/M programs in the case diagnostics systems.The EPA will Issue
revision. In addition, States must require ‘of moderate ozone areas that were revised J/M guIda”cewhlth addresses
-, the Installed systems to be tested for :. newly subject to this requirement at the onboard d1ag oelicimrectIons. - -
- proper Installation and must perform all time of enactment, based upon the - - () NSR (1)NSRo mile. Par the
• necessary enforcement. - • State’s commitment to develop such a - -PurPOse of satIsfylrrg cmkeIons
Supporting and background material -. program Within 1 year from conditional - offset reduction xe.rL _ ..Pi ts of section
- - for developing, Implementing, and - - - - plan approval, or by the date 173(a)(1)(A ) , the mL i* offset ratio is
enforcing this type of program Is - established EPA’s guidance, i,hlcbever the ratio of total actndemlsalons-
provided In technical (‘Technical ‘ Is sooner. ‘ veductlons to the tot owable
• Guidance—Stage U Vapor Recovery The EPA will, under section 182(i), - emissions Increases ofesda JIutant —
SYstems far Control of Vehicle Refueling -require SIP revisions to provide for a - - from the new source. For.___
- Emis ’ons at Gasoline Dispensing basic JIM program within 1 year In noñattalnnrent areas dasaifledma
• Facilities—Volume 1.” November1991) - areas newly subject to basic JIM moderate, the emissions offstltiiliuieisd
- - and enfozirernerd (‘Enforcement - - requirements In the future as a result of least 1.15 to 1. - - - -
Guidance for Stale 11 Vehicle Refueling - redesignatlon or reclassification to - • (j) Bump-up requiremenlaAe - -- -
— ui P iuiire,’ ! Decemheiigofl. . :- .‘:moderate mon nonattalnrnent. Where.: discussed In section IIA j ’4 -
:gnidan e that the Agency baa Issued. .. -. - the boundaries of a nonattainment area moderate, and serlàuameas will be
The Agency now notifies the public that are changed any time after enactment - bumped up If they fadbattain. When a
• :thls Is suldance Is uedby the — - - - — ursuat to ction 107(d)(4)(A), EPA -moderatearea Is buuped up to a erIoue.
-------
Federal RegIste J Vol. 57. No. 74 / Thursday.rApril * 1992 / Proposed Rules
section rw(d)(4flA)(Iv) requires that the •.gww it nireinents to, sources which are .modificatlon which Is no de mtntmj
bbundariea reflect the MSAJCMSA determIned to be ma)or modifications. . would occurat a major slationaiy -
pj g wIthin 45 days the state notifies (i)De Minimis nile. New section source emitting or haviug the potential.
EpAofItsUutenttostudythe - i82(c)(6)revisesthedeininlmlstest ..• - oe itltonapâryearormore.tben -
pppropriate boundaries for that area. U which muM be applied to any proposed rules cons Went with section 182(cX8) of.
, does make such notification, a emissions In a serious (or severe) area. the CAAA must apply. Section 182(c)(8)
uial determination of boundaries must The new de “ “1 ” rule establishes an provides that such modification Is a
be made byEPAwftblnemcnthsof “tmIssIonsthiesboldof25tons maJormodificaUonand1ssubjecttothe -
reclassification to serious. . aggregated aver a 5-year period to.. ... part D p t equliei nents. How ver,: ..
A ;. rep acetbe ntEPAthresli I&of 40 thesourceaayelecttooffsetIts .
4. ous ae - : tons peryiar.Il also requires en - . proposed emissions Increase with a
Serious areas are required to meet all evaluation of past net Increases even reaterreq]ijcljoij b emiu at the
moderate arO requirements, unless . when the proposed Increase Itself I - source alan Internal offset ratio of 1.3 to
othiseuotedasweflasthe - ‘ : b the denih wI,levoL ‘....
followins additional requlrementa.r . flu, an emissions Increase resutlug. section 173(aX2) coócànlnjLAELlflbi - • .
• CJjJ rJorstodonor 1 sowce deJinitfofl ) from a propos d modification ala majoiy source elects not to obtain tb.-,. .
Vor ozone ncnavRlT!I r •• - stationery . uuw Is de” ” If ihenet. appropziateInv ii aLo3seta, then I -
• e WIon sbcrease—wblthfatob : -
“major stationary source? ’ for pwposer lCiilMed b aagrvgatIng the posed modification. In any case, all other part
• of the NSR program and the RACT-. Increase wI all oU e,aed1ta •.. Inchidlog ..
r quIremenl formajornon-CIG lacreasesand decreases In emissions: emissions offie at theizeecribed ratio
• Includes any stalionarg source or group from the frcu be 5 j’1’ - 1.2 to 1?mu.t belatisfied by the major-
- of sources located within a contiguous years Uindnd 8 !Q : ” 1 ” ' ’ ” • modification. ., a • • .
area and under co cur control that Y 0P P01 h 52St01 5 j jRectjnj r -
esnilsor has the potential to emit at. or less. In a break with previous EP4 i A1J requnas mat au ’s for
least 50-tons pe* YUI • “‘° ‘ F ° ’° ’ WI JU? erlous p””e uOn s*(nmes areas... -.
Th)Jfl4C7 n serious areae, the . tv a ti . contain measure d ped• -.
RACT requirements apply as foi • wvui flOt “'“' - to aisi Iaipwve both amh ”4:
I .1.. ________
the major source cutoff Is zeduce&to So ‘ ‘ • _ I”1” monitoring. The program for . “1 ”’ d
ons year sources . This lesser cutoff JWL 05 1W U O WUII QtOfl$J may ambient air quality monitorIng should -
LI I. .1. .Jt .LI.. , not cause _____ , .,, . .J.
W WI W 1M5 I VU or .3 1. ._ I. - . WW W WCØ3 UV £1 1J - -
RAC I’ rules In cares whereno existing VOCpctlotabtsThó program or .
:CT appliee to a source lqcaled.In a l ma UWca u P .
rnvuuicauOfl 1005 U U IW II W UW
— • . wuuww IWO ø uO . - • • __ I __ • . ,__
oer year. an sung .ua icr m : . • , • .. . i.wzs are zuquuuuw u i ’ . •
uj muwucausus or source . .• - -
—U1Ce category suojeor be 50 per: ... •,. ,, • ..- - -a a an. •
ar.cutoff only applies to sour • . - “ ‘ ‘2 ” J ”• j ’ ? .ncerlmon ltpogramupoii the
ovab i gharc utoffJ.uIesfor.theie ___ Iuuaziceofátoiepomulgadbyt. • ‘.
sources would be subject to the same-. 1 a, ‘A. Upon y w.3g ”ticn of these ruIe .
schedule and requirements of non-Crc I1U wr £u Cj U J, a EPA will provide further d1r tIon as tar..-’
RACE specified by s ction 1B2(b)( )(C) • required actions and schedules fo -
(Lesar9dueb 5vNovernberl5r. 1O s — - - - Ste - . . .•
19 - - - - rul d ec I - - C M P 1d,OJtStiV
j i) Oftbet zotio Forthe ; -: is x I C - . S Ora sedous
pbrpose of satisfying the emissions• - ... “.—A urodificaijonis ozone ncnat1ehrm ”t area to provide an
- zoffiet reduction re I ants of section- . snb’ect .... - at nni. i demout tIon by November;- .
123CaXi)(A), the.emlulâns offset ratio I L. • : - is, ieea .The ’attMnuimtrat1an -
the ratio of total actual emissions - -. eu It can offset the - must be based on photochetnical grid -. -.
uctions to total allowable Increased • wits tar 1t3 O?*flY. Ii%aiYflCalme!flou -
emissions of such pollutant. For ozone emissions seduction_s at sour1 a a 1 en - determined by the Admisistratorib the... -
nonattainment areas classified as Internal off ettatio of at isst 23 tot - AImlnktratoz’s disaetio lobe at least .
serious, the emissions offset ratio Is at Section 102(c)(7) provide, that In the Is effective” (section 18(cXZXA)Vfldu - -
• Ieastt2 tot . - ----:.. absenceof.ufflclent lnternalnffsets,lhi rtombtnettbrougl
-. (2) Spec ruJes for modiJ1cotio : . part D permit requirements of jju’jcur: applying A4py’ov ’dmOde1uS .
Statq NSR permitiequiremnents for .- ‘:71 must be met, except that wl e -- - - - ec lqnes for SiP. revissons (see EPAs
major modifications must be revised In applying therequk ment of section - . ‘GuldeJIne on Air Quality Models.
accorda ce with new rules for •. - 173(a)(2 ) to thicli modification; the {RCVISCd)P” 1q88) . The Urban AirShed
mdifl jom wide section 182(c) (0), - ourve sb ll apply best available control. - Model in reco..rnen4ed for modeling -
(7). and(8) of the Act. These new rules -• technolomj (RACr), .5 defin_ud - applications Involving entue when -
apply to prop d emissions Increases iecdon 169 of the Act, as a substitute for - - - - . •. .-
‘ . .resuLting from modifications of inajor -the lowest achievable emlssioIs rate- - Sedans areas generplly inn_st meet U
Statioiia iy sOurces in aedousand severe (LAER). All-other permit requirements of -requirements of moderate ozone
areas for ozone. As explained below. section 173(a) must be satisfied, - - - nonatlainment areas. As discussed
t ”ese new in_Its change the way in Including the-requiremnçnt for en - above, moderate ares are required to
‘ InChrptoposed moJjfi atiom must be emissions offset tatlo of at least 12 to 1. provide for reductions in VOC and NO.
•n_DZuated to deterñiine whether a major (iii) Modifications of sources emitting emissions oe necessary to attain the
0dIficatroa will occur, and establish 100 tons per year or more. If a proposed national primary ambient air quality
-------
. ‘c4e$ eglster J:VDL 57,sNo 74 1 Thursday, -April 1S , 1992’f’Propbsed.Rulè ‘ “
.tendard or 020 ie” (section ;• - developing a 1990 Inventory of non.--’ ieduttionsthat wOuld have occurred-’- -.
18z(b) 1xAll: To determine the r: mobile anthropogenlc VOC emissions. imder thepre-e actment FMVCP and -
‘ flQCeeSarY’ eaission re ctfojii , en 5 The second . tep consists of determining sectiOn 211th) RVP requirements ‘
• - at&M ii.nt denionstratlbi is geierallj 4he mobile portion of the Inventory after- between l990and 1999 as a r .u1t of : -
tequk dby November 1q93, ff ..‘ the FMVCP an4RVP reduction fleet tutnover(aasumtag that all I/M
photochemlcal grid model Is hpl used. programs (promulgated by the date of deficiencies have been flxe4 This
Serious (and hlghø’ ) areas, bowevez cnactme t or required by section 211(h)) correction faciov is simply the difference
- must thm ilete pbotochemical grid • toredouL Since the effect of the: .between the 1 90 total base)in&. . -. -
modeling inilyàe and bivelonger pre-enai iinent or current FMVCPasa - emissions for 1990 and the 1990 total -‘
atth1mn nt deadlines. inconsideration cumulative reduction from 1990 Levels baseline emtsslo s for 1999 The 1999
• of the additisiiál time necessary to Increases each year because of fleet —. target le rel o1emissionsJ therefore -
gatI data to upportaiM to erform a -- tprnover, there,will actuallybp a• - - calculited by subtracting this fleet
‘ gi4dmdèlin analysis. Coi greá- separate 1990 baseline applicable to - - -turnover correction factor, and 9 percent
pibulded an additional yéa for serious . each eialuitio yea .specifled(e 1 9 - of the 1990 total baseline emissions for’
• (andblgb 5r)azéastosubmitthilr .; - - -200Z etc.). . • • - . -- •- 1999 .fmmtbel 9 9 0tazgetlevelof -
demonstrations of attainmenthilight of The determlnahon of lbs bnsebnes emissions.
the fact Cuãgieu alIov ed this - - will require thruse ciMOBILEtI to -. j subsequ it milestone yeara .tbe ’ .
additional year. EPA believes that the model the effects of fleet turnoverand ; fleet tu nóvàcoàection factor is the
sectlcni (c) requirement for serious - RVP.I4InT gee. Yara given eVaUation - :‘ - Ifferené&h tween the 1990 baseline - -
aM higher ozone nonatthtnm mt areas - - - year, the base llne will bedetermiped by : emissions for thO previous mileitone -
to submit photodiemical grid modeliiig - - applying the 1990 V).ft to ebypothOtical -y the 1990 baseline emissions for
by November 1994 super ëdes thO- - mIiieiocs factor for the evaluatIon year.- the c t fleet year. The target -
• tt*hnnantdemustration otherviise - The hypothetical emisslona factor : • by snbfracthfg this -.
applicable un section iB2(b). - . the1990 baseline In 1099 (or 9902,2005, - - fleet ünováccrreclicsi factor and 9 - .
When projócthi9motcr vehicle - -- etc.) is the IOUO (or 2002, 2005. etc.) - - . - -percent of the 1990 total baseline - - -
- erniestoas for the att 1nnant and rat of -- emissions factor determined by rnnn t r g - erâlssions for the current milestone yeE, .
progress dem sfraUon after i99 - -: MOBILELI usIng 1999 (or 2ç02 . 2005. - from the taraet .level of .nksions In the
‘Ststeauhouldj ise esamepmcedures - etc.)astbeevalua fqnyearandthe: •-
- - asglvuiln.the AYM Uorecasling • - - same Inpütparametem used to describe - : p the n ii vo1 of eml elons for - -‘
and dug guidance fo?ehrtous CO - - the PMVCPand lPrequ1renients IlL a mflestone calcu)ateiL States-
- nonattalnmetitareas. or iftt.fI - . .- 19*-with the addidonpf RVJ alp - - who - 1
• oieetkasupthrough199e Stetesmay (ork vhereapprcpor1afe). - - -
lloWthepdueefcevlvfr’. a -- - MullipI yIng this emIssIons factor by the ..d - l.
asUngqu&trat Il tlonnoderat. - -‘ 1990 VM results 1nig9Oniofor vehjc1e L ’ ‘ tJ4:
- rn’ r & _ e ‘ii. . ..t at& . - ii - - -i _. .t ... . .i i .i -;- - - w r ‘ ‘w ’ Ofl 5 -• -
vy . ‘ r -iiw-U5 vi uu. - uuu ww uiwwvu - , j - . . . - - .• .
-1 g)notbr ____ onamatwonbi be. w wuviau
1 tJi - — aL ______ u— —‘
__ “ . I I5iW 1 Orwjr ,wa .a i . -
- rep tinge fp pderateøe ameultes mdei Jhe e
1e -- cl&bo tieid
________ edi tionrexpre. cnuscbabeeis )
‘-.4 ui up iqU5 I nwipi . a )1 2002 — - ew.jareaiw u w.uw-.- - $t” - - i ,. , - ,•.;
lid Mi . . .ai ,. .l, . 1 .i &4i ,i. .-- z a .t . - i.a i — u qiwpij uw u.u IaaC5 .wi,vecfl
pi vy . wj v p it • - wv aw vi fl0fl-aiOtu , ui ..v i-- - . • - -
t arateof ;. c cemos tó 2z
— .•. -- .?IIUUP .. pmyI. • t ;CSICUI&t&thBl990totalyc jJ : - i - - i , a -- - -
for refiñc &1*zoii asthi , wee&day . nl Ion , fo 1999 (6r2902 2005. tc .) uiuestonti 7 9? iw t wvca 0iv aaw.iuawa
VO em1u1ons of aflaaat4 pprcethper ThIa number Js the adjusted base year t -
- .yea netofgrnwth a ag &over eacht -Inventory needed to calculate the target 5 P” aware .uf - -‘ -
cunaec iUveJ .yearperJpd uii • i i In1fl99 ,.4nuestone Pear target level le dependent
1990 un l the a b nnnt date Thisis In etc.). - - - 2 only on the 1090 emlsefonalnventory.
- - -- - -- - - - - - - - -- - A whmeaa l aftonofan ‘ -. -
- - -- - — ,‘tb -1
- f tu
of
InactIvft les The -aaa m.n t if -
I oh ran area-has met th asenible
ilie target level of progress requirement Inthe
-milestone year Is the total amount Of -‘ - mIlestone year will be based on whether
35 — -.em1s ion allowed in the area in order to the area Is at or below the milestone : - -
-- the rate of progress requirement .- year target level of emissions and not
e year In question. The 1999 target.: whether the area has achieved a certain - -
of e’ ni sa lonscanbe calculated relative to
emissions 1 control.
—
! !!IRII lcu ated -
- • —- -
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-- -
Federal Register / VoL 57. No 74 1 Thursday. April 16 1992 I Proposed Rules -‘ -13517
emissions reductions if tbe’iesidling VOC emissions reductionsduring the-
-reduction in ozone concentrations bat. first 6 years. èhen the area.can apply the. -
- - - duction - least equivalent to that which wouhh 5 percent surplus reductions toward the
requirement. result Irom VOC emissions reductions. 9 percent requirement for years 1996-.
fl,—target level of emiuicms permitted for Emissions reductions of NOxare subject - 1999. ..•. - - -.
yearx
BG.-BE.)c(o.09) - . iotbecreditabilityprovfs lonsunder Actual NOx emissions reductions
FF,-fleel turnover correction ractor section 182(b)(1)(C) and (D). ,. exceeding growth In NOx emissions
F1,-BE-3-BE . Additlonally.anyactualNOx .•.. sethe1990biseyeaybeused
Tt,—n..,-aC,—Fr, - emmlsslons reductions In excess of . meet posl.1996 infg reductions
ENample .1999 growihin NOx emissions during the ,. requirements for one nonattaininent -
.TLii sThsBC,Fr,, . 1990-1990 perIod may be used to meet s . areas classified as serious lad above.
For areas with attainment dates post-1996 emissions reductions . Section 182(c)(2)(C) grants EPA broad-
occuzu*g In 20W and 2010 (La., Severe 2 requirements for ozone nonat iiwi4 4lscretion In determining the coi d1Hons .‘
and Extreme areas, respectively); the - areas classified as serious LIke VOC d.r which NOx control may be
following formulas should be used for mide lon* these NOx reductions must substituted foz or combined with, VOC
calculating the target level of.mterlnns ‘be forceabIe, permanent net of . -‘confrol to mavimfi , reduction In ozone
for the att nm nt year. The fln a1 growth . and meetthe muditability alrpollution. The EPA believes that
emissions reductions requirement prior ‘ requIrementsrln addition, the NthC - since voc reductions in 1990-1996 (In
to aft nment for these areas Is O- reductions must meet the guldená excess of the required progress amount -
percent over a 2-year period (La, the . under which NOx r dqctlons can be : - oiis percent, which In turn Il net of .- -
time between the last milestone and the substituted for VOC reductions. If an r wth) be carded over to the post.
attainment date Is 2 years). -. area substitutes NOx redtu t1ons for - , N ducticin exceeebf
VOC reductions. then a rate otinue ss giowth since 1990 (there Is no progress -
e stour curve ( tImfl . to the one required for. ui ent foe NOx) may be carried
2010
9E.-1ago baseline emissions calculated VOC) must also be developed for NOL - as weIL Note that these NOx
relative to yearn CertainNOx Tfli #iO2 !edUCtfOfl ‘ etnI ’u lonarediactlons are subject to the -
BC. e% reduction requirement, requirements may also be averaged:
- before growth - . onitakt t with EPA guidance. The-
target level o i ke on , permitted CAAA encourage theuse of markit-
- . - based approaches In both tiiles I amlW.
• liG.-BE.x( 011 6) . z1ieuseofeconomicIncent ives;fs ___ _____
1 1. 1— 11.- s-BC, ____ ______
r -EEz-2-nE. ;. explicitly slowed In sections flO(aX2) ___ ___
Exaurpler , ‘ and 172(c)(6)j f title L Provisions for. ____
llas-Ths-BC,--F 17. / avinagi rag e’ elons of NOxóver two or.
(NotmThs wecUonfacto,forRACruid, more units are ctintaliied ht sectloq ___
and 11)4 prugrim correction is not hith. I In 407(e). ILawcvar . compliance MtIt ,. .
e ’ ticns because the rodated relevant titles would have to be...-
‘ ieducUous should have been maintained. - ___
‘ edpdci l h aendof1e9 a .UthfsJ s n ot .Uthe$tste Iowanyp r ’
ins case, an adjustment should be made ul enacimint baiikéd erpissions z eductions _____
the_ ‘ 4 .tICa of the level of credits to be used for purposed cinew
for the flf$t S yeaz4 source off ts during the period between ____
As discussed In ectlon IILA.3 .(a) of 1996 an ftr ,Inineat , then these
this pre mhte If changes In emissions - emIs’ 1 ’ must be frêat d as growth
factors or In methodologies for ___ (La., benke4 credtts b ecome emissions
developing emissions Inventories oo upon uie) As such, the Increase 1n :‘
after the 15 percent demonstration Is . emissions must be accountedior In ___
submitted, but before November15, order to ensure the sate of po gr.ss -
- 1990, then States need n t correct the reqnjrnment Is achieved.’ - - ___
base year Inventory—the adjusted state can only count emissions
baseline on the projection inventory for reductions toward the 3 percent pet year.
purposes of reconciling the 15 percent - requirement If such Pmn ions meet the
demonstration. However, If such - creditability and reduction
changes occur after November 15,1991. requirements. All creditable .‘ 1 ons
but prior to November-iS, 1994, a serious reductions must be real, permanent, and
- or above area mayjm required to make ebforveable. States must keep carefbl-.
- .correcdons to the base year inventory records of allemissions reductions to -
and attaInment year projection. - ensure that the same reductions are not
inventory for the purposes of developin used more than one time (i.e.. reductions
- the 3 percent rate of progress - cTIlOtbs used for offsets and to meet.
demonstration. If such changes occur the rate of progress requirement). Any
after Novemberi5, 1994. EPA will creditable VOC emissions reductions -.
advise on when It would be appropriate achieved beyond the required 15 perce!nt.
- for the States b make corrections in during the first 0 years altej-enactmen )
- future supplements to this General of the 1990 CAAA (November15, 199G.
November15, 1996) can be counted
Dllestatute explicflly states that, after toward meeting the 3 percent rate of
— 1”O . emissions reductions from NOx progress requirement. For example. if an
can be substituted for ‘b c -. - area achieves 20 percent creditable
subsUtuUonsequIrementsofsec on,
1 02(c)(Z)(C)and-t&tbisametrèd ltab llity
constraints dictated by section -
l82(b)(1 C)and(D)asapp1ytoVOC.
. .ntsel fl3 . - - - - -
- Ruli-.ffectIv iten LUpW1!EWdnts are
creditable iL. ,L 18 the pcst4SOO erjod. -S-.
The same requirements appl r u In the -
15 percent ieductIon equIr nent (seen - -
section IILA.3.4afl. - . - - - - •.,
- All emissions re LwHnne thatare tube
- credited fr’ t hs p redu tlon -
requltements must com&fronr within th
designated aomatI ITmir t area.Qf - - -
course, emissions reductions strategIes
applied to sour c esju -- -
nonaP&1 r.t area
eifectaonth.
w lth lntheth
requ lre’thati ..
e” .1OnS r- - - . - ted from
- the basehin emissions, The baseline. -
em lsslonsaredeflnedtóbeall -- - ,
emissions “in the ansa.’ which EPA -
Interprets to iiien In the designated
nonatt tm i ’ 4are& ..- - . . . -
After the control strategy Is -
developed, regulat on&pçeded to. . -.. —
• implement the control strategy must be
developed and adopted by the State. -
The control strategy along with the
associated regulations must be
submitted to EPA byNovember 151994.-
The adjusted base year inventory and
the attaInment year projection Inventory..
must be submittedno later than
November15. gg4; however. EPA may
require an earlier draft submission.o(.
these documents to allow.early review.
if the attainment demonstration for a
serious nonaltainment area shows that
an amount greater than 3 percent per
x — miI. sione year
a—1999. 2002. 200 5. 2008
.,a••
S.
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— I • •
13518 Federal Register F ’Vo ’l. 57, No.74 1 Thu iday,’April 101992 / Proposed Rules , ‘ , ‘••,? ‘
year averaged over the 3-year period of - demonstrations are due 90 days after triggered and Implernentedito achieve
creditable reductions. when combined . each mileetonewas to have been ... ‘: the next milestons. or to adopt an
with the noncreditable reductions. I, achieved and shall be submitted as an economic Incentive pro rám(u, .;
needed to attain the ozone NAAQS by ‘areawide inventory of actual emissions, -described In section 182(g)(4)). Based on
the applicable attainment date, areas ‘The EPA Is suggesthi that the States the schedule In section 182Lg)(3) for—’-
should plan on achieving the emissions synchrpnlze their periodic emissions . Slate election. EPA review of election. .:
reductions as early as possible. In any inventories with their milestone.. and the associated SIP revision (section
case. It will be to.an area’s advantage tà compliance demonstrations (see section 382(g)(3)) , the time available to develop
implement control measures early since flLA t of this preamble) The EPA will. -and Implement reqãlred additional - -
EPA will look at air quality data fat’ the provide further guidance on acceptable, measures or an economic mive -‘.
.3 years leading up to the atthhmi ’nt - approaches to allow for synchronizing program will be extemely limited If the
date (La.. for serious areas. air quality . periodic emissions Inventories ana.’ State waits until a failure occurs to
data from years 1997-1999 will be :. .milestone demonstrations so as to meet - ‘initiate the program of choice. Thus,. ,
evaluated) to determine If an area has’ the 90.day requhvwent Consistent with ‘EPA prges States to Initiate program’;
attained the ozone NAAQS. Delaying ., .the tracking provisions discussed in’ dqvelopment as soon as they determine
the Imp entadon of measures imlil section IILA.3.(c), the submittals for that a failure Is likely. States are •‘
near the atIMnnwi t date may result In;’ serious and above areas due by. ‘ ‘ - .encouraged to consider incluslon’ol
reclassification to the next higher ‘ November, 5, 1994, must contain ‘economic Incentive programs where
category because emissions reductions . projections of control measure. : •.. appropriate In the SIP submission due 3
- would not have come In time to produce. Implementation and Mfl1 SIOn5 ‘ cr4 years after enactment to be of use’ -
• timely of the ozone standard. reductions to occur from November 15 . In meeting the first milestone. Submittal
Any regulations required to achieve the 1996 until the atthlmnpnt date. - , at that time would be more likely to
,annual reductions necessary 10 attain (h) Burnp p requirements. As allow for sufficient time to develop.
the st4ndard must be submitted with the discussed in section IILM.W, marglnal implement. and evaluate the
control strate by Nove*ber 15 1994 moderate, and serious areas can be •‘ effe tIv ness of the program. Economic
-, A nonattalnthent area can achieve ‘bumped up If they fall to attaln.Section . incentive programs ae discussed In
- less than the 3 percent ,per year required 182(g) adds additional bump-up. - - more detail In section IILC.3..
reductions If the State can demonstrate ‘provisions for serious and severe areas - . j &thWWadI/M Section W(c)(3)
that the plan Includes all measures that that miss a’mflestone. Under those q fr g Ng d ’ l/M programs hr
can be feasibly Impl ’siicu ted In thdWkea, provisions, suchareas may elect to, ‘ ‘ each urbanized area of serious and’
• in 1 1gM of technological acidevablilty. bump up to the next higher r lficaUón above ozone nonattainment arias as
The EPA will consIder on an area-by- as thur means of satisfying the . ulefined by the Bureau of Census. with
area basis what these measures ma be, milestone requirements (‘ee diecus lan 1980 populations of 090,000 or mere. The
with no presumptloi beyond that - In section IILM.Ø1J. Tb. States wltb section calls for EPA to establish a
u e fliaIly given In section’ ‘ earl oil. or above ozone areas must. pe f standard t nt
ie2(c)(zB)(li).i bIcbstätes that to . - submit-compliance demonstrations *
•qualify bra Ies theq S percent ... - wIthin 90 days after a milestone was programs must achieve. and also sets
ieductlontbiState niult at least have occune 1, and EPA must deleñnlne some “ “ “l2fl desisa reriulrementa.
‘demcá eta th f’tha SIP forlhe area:’:, . withIn 00 deyl The Act specifies that the State progral
c- -’nme Ie .a i , :. , - StateV,demnartsImtlomI are adequate must Include . at a minimum,’ •“.
computerized emIssIonsanaly a,on•:
pra a’l Tho’Bam.:aource ”. (se 182(i)).The,th1Iestoneiari ‘read testing. dinlal of ’waliezs for :“-‘ - -‘
category In iloeathiinini ’nt areas of the essentially the___ j • ___
- nextbgherclàalflciltlonThe’ S percent required by’sàètlon i82(b)(1) and. - warranted vuliir t,g orrepelrizeIät d to
per year requlrimient’caa’iot be waived (c)(2)(B ) . For example.’eeriouè ozoni - -. ‘iamPwiD& a $ 45P cost walve*’. ‘ F:’.
,, forareàs claselfled’as’extriwe. A’ ‘ ., areas must dem onstiate that they have requirement (adfusted annually based
determination bf the waiver from thó S achieved the’l$ percent - ‘on the Con umer PrIce Index) for
percent per yearrequlrement will ha -‘, ‘reductions requirement of section -. emIssIons-related repairs not covered by
• reviewed at each milestone under - 182(b)(1) wIthin 90 days after such’ TTW1tJ eiifOtCefl% flt through
.‘sectlon 182(g) and revised to reflect the milestone should have red (e.g., 91) ,zegJstration’denial unless an e dstIng
availability of any new technologies or days after NovilmberIS; iege, or’ -‘ program with a different me ”t ” can’
- other control measures for source. In the February 13.1097). - ..‘ -‘ prove greatereffectlveumsa , ammal - - ‘
- -‘.aecategory.”.’i f ,(Lk:L: ’ ’ .‘AnyareanewlycIaulfl da. severe lupectlonunlessaStatecan’
By meeting the specifics percent’ ‘- ozone nonatr Inunønt area bump- ‘demonstrate that less frequent testing Is
- induction requirements ‘ 1 ”c” ' ed “ up provisions or riclàsslflcatlon imi1 . UaIIY effective, centralized testing
above ,the StatewIll also satisfy the seccn lBi(b)Iasubjecttotbe , ,, .‘uthe toompro e -‘
general RFP requirements of section’ reformulated gasoline program under - dec tralizaIIon Is equally effective, and
V2(c)(2) for the time period discussed.’ -‘ section z11(k). The effective date of such insPectiOn of the emissiqus control
All multi-State ozone nonattainment - -program is 1 year after reclassification. .diagnosdc system (when required by the.
areas should refer to the multi-State’’ (I) Failure to meet a •. . m ’ trator ) . In addition. eich State’
section ( ,ULA.S) foe further Instructions (Economic Incentive Pmgmm). Under ‘must report biennially to EPA oil.’
- ‘onarordhmlionofSWrevisiousandon aectIonlg2(g)(3),ffaStatefailsto! ,. emlss lonsreduct lonsachievedbythe
- the development of the atta1nme t - submit a milestone compliance • ‘ - prog ‘
•demonstratiou. --. - ‘ • •‘ - demonstration for any serious or severe ‘In some cases,’ areès may have - -‘
- (é) Milestone amiplirmc& Serious and area as required b section 182(g)(2) , the become newly subject to both basic and
- , above ozone weaemuat show that they State shall choaae from three options:’ enhanced I/M requirements at the time
- ‘ddaeibthrateofprogre.a ..”. ,Tobe mpediip-tdthe exthlgee -” ofenactment,wltbthebaslâUM * ‘s? ”
emIssIons’redüct1ons (called thilestones) classification to Implethent additional, -‘ - requirements doe shortly prior tb ’the
‘In the”'compliance demonstrations” - -‘ •- . ‘measures (beyond those In the’ • . ,.-‘ deadline for submission-of the SIP
, ‘requiredbysetioni8z ( gX2 Theà’ . ’ eontinge icyplanwhlchwffltheadybe &ngktheenhancedl/M:
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Federal Register I Vol. 57, No.- 74 / Thursday,. April 16, 1992- I Proposed Rules 13519 -
prograi . In such cases. EPA regards compliance with th deadlines would be section 246. The substitute measures
‘enhanced JIM requirements as , . in e sible . . must demonstrate to the satislaction of -
-superseding the basic J/M requirements, 2) Ciean-fuelf!eetprogmm.Ibe ihe Administrator that the long term .
and therefore will not require the . pro a must require a specilied reductions in air emissions of ozone
submission of the basic JIM - percentage of certain fleet vehicles . - precursors and toxic substances are, at --
requirementsdiscussedpreviously.The purchased Inmodelyearl99aand ‘ a minlrnwn.equal tothose that would be
EPA will, under section 182(l) requlse ‘thereWter to be dean-fuel vehicles and.’ acbieved under the dean-fuel vehicle :
SIP revisions to provide for an rnh iiced -use clean alternative fuels when. -‘program, or a percentage thereof which
ljMprogramwfthlnzyearalnareas . g lnthearea.Foilighi-duty wou ldbeattzlbutedtothepgrtionof the
new lysubjecttothisrequ lrementinihe - vehdesandlight-dutytrucks the - :- program forwh lch ther v1s lon Is to
future as a result of redesignatlon or required percentage must be 30 percent - substilute. Substitute measures may not
reclassification to serious or worse - . In 1998,50 percent In 1999. and 70 -Include any measures otherwise -
ozone nonattalnmenL . -: percent In 3000 end thereafter. For .- required by the Act however they -
• ‘ibe SIP. for .n) anced I/id p grams ’ : heavy -duty trucks, the ercentage must : ui4 t tow ni the rate of - .
-are due no later than November 1s ,1g . be 50 percent In each such year. light- reduction requirements ( Le.,15pç ent) .
In the event that EPA’. nltnni d i/id duty veiddes and light-duty trucks In 1j li/orniaFiIotres:rrojumn.$y ‘ -
perfor!nQ Ice s wk,d In not finalized fleets partldpating In this program for Ni àmodr is, hmob Ia mull
soon enough to provide iuffident lime, the above mbdel years must submit SIP revision requiring that -
fur full SIP development, EPA will use . .low. mtt ,.1óns vehicle (LEV) standards umcient clean alternative fuel be. ‘..:
jta authority under section 110(k)(4) to for model year 3001.fr leet phase-In produced end distributed InCalifouzia .
- conditionally approve SIP submittal. equliàlentp for 11gM-duty vehicles and to support the title U, part C, section
committing to adopt enforceable - light-duty trucks (6,000 pounds Gross 249(c) “ nA torv clean-f!el vehicle pilot -
J/M programs consistent with. Vehicle Weight Rating IQ WRJ or less) progra wbIcb begins In model year
• EPA’. gu$a1u The guidance will cover depend on the availability of qualif ,lng 9 fficlentkel to allow all vehicles
the elements of a full SIP. The S W must vehicles In California by 1998 to if -required under the program to operate -
demonstrate that the JIM program will -such vehicles are not available in-.’ exciusiiely, to the ‘a,dmum extent’ • - -
be operated until the area Is California In advance of model year. practicable, on clean alternative fuel
redesignated to at t ” t based on 2001, the phaae-In schedules for these - while operating In California (section - -
EPA’. approval of a section : -- vehicles will be delayed accordingly. - 249(c)) must be available. The revision
malntcnnnce plan without an iph wed Some of the major program - - must require an adequate numberof -
I/M program. -- -“ requirements Indudm Requirements for - supply locatlona that are suflIcIen ly • -
A. mandated by sectiol (m), the - fuel providers tomake clean altânative ‘dislributed to ensure convenient - -
Mm 4 iit,trato Iil promulgate •.. - - -fuel available to fleet operator ’. refueling of such vehldes.-The revision -
regulations requlilng man’ufacturerf to - overage-of Federal fleeti (except foE - - must apply to all claz ’jficat lons of -
itinstall diagnostic systems on all new- certain vehicles certified by the -. nonatelninent areas’as well as to
• llght-dutjvehldes and light-duty-trucks. Secretary of Defense as needing an - attair.i nt areas within California.
The purpose of these systems is to. , exemption based on national security AIthOtigil WA , In Its A rIl 1991 iepo?t
identify and track emIssion-related- grounds); provisions for Issuing credits, on “Cetting Started on title L”Indlcated
systems deterioration or alfunctIón consistent with EPA zegulatIon due I - that alifornIicóuld opt out of the - -
Ac rdlng to sectlop 202(mX3), wfthln 2 - year from enactment, for purcha$ng - Callfónzla pilot prägrsm, EPA now -
years of WA’. promulgating regulations -more vehicles than required or vehicles believes thstsrzch a procedure I. not
requiring them to do so, all States with that meet more stringent standard . or contemplated wzdei section 182(c)(4)(8 ),
I/M programs must amend their SIP to for purchasing vehicle. prior to the which provides for opt out of dean fuel
pr ovIde for Inspection of these onboard effective date of the program. Such vehicle pfograms In certain - . - - -
- diagnostics systems. The EPA will Issue credits may be banked and traded, circumstances. That Is because the pirt
- revised guldnnre which addresses - - withinihe same nonattablment arem . of the Califorila pilofprogrepiunder
onbdard dIagn osticInspectlois, - credits may not be traded between light- - which vehicle manufacturers will be.
: C1k) ‘ C lveh!depmimm k1 ) - duty and heavy-duty vehicle dasóea . - required to produce and sell clian-fuel -
füis. 1h u iiutu ,JuIdtnr - - The Mmh 1,ttrator will prâiiulgita - vehicles is amandatory ederal - ‘-
- sectiâns 182(c)(4) and 248 certain SIP -- rules under section 246(b) to ensure that program avJ itnhtered by EPA: unlike -
requlriments for areas classified as certain TC? f. that restrict vehicle usage tlii dean-fuel fleet program. It is not a -
serló’us or above ozone nonattaInni. zt - based on tithe-of-day or day-of-week. SIP-based pirograta that depends on the
(baled malOs?, iaae , and 1900 calendar consideration will not apply toany - - existence of SIP lévislons forits .‘
year dita) and with a 1980 populatIon of vehicle, that comply with the fleet ImplementatIon. Moraovez while -
25Q $O0ormore According to these program equIrements . notwlthsthnsllng - , California I . to Implement the fuel -
requ1riinènts SWpzovls lons (or. - - -. the relevant provisions of-title L - -‘: - -availabtllty aspects of the program -
lmplethenthi the dean-fuel vi ’Mi4.’ - Additional Infojmatlon on the - - - through SIP revisions, It would deprive -
- program for centrally fueled fleet. - - requirements for dean-fuel vehicle fleet the Federal program of Its effectiveness
velcl prescribed In title U. part C... - programs for serious CO nonattainnient If California could opt cut bf the fuel
.,, mustbe submitted to EPA by May1 areas Is found In dean-fuel vehicle fleet availability afpects of the prcgram.The.
- 1996. Areas with. 1900 population of - program. section JIl.B3.(4 clean-fuel vehicles required under the
,; Z5O,000 or more that are reclassified at ubstitutes for Lhe ci - prograni would not be assured 0 having -
si f1zith dateu.edous o above - piegrom.j z tèje sub t - , - the neces ary fuels on which to operate.-
- ozone me att nment areas must also rogram may submit eSIP revision by - The conduslon that California should
submit revisions within 1 year of November15, 1992. consistIng of fully not be able to opt out of the fuel
dssificatidn. The Administrator may adopted control measures as a-• - . - availability aspects of the pilot program
sd 1 usi tbe compliance deadlines for- -. substitute- for all or a portion of the , is buttressed by section 249(cJ(ZJ(F). -
newly classified areas where’ - - . ‘, clean-fuel vehicle prograni required by - which requiree EPA to establish Fec eral
-------
-t ‘ - . -... - ‘ ----.. ‘ .. - ..
i3 520 Federal Register I ’ VoL 57,No. 74 /Thure 1ay, April * 1992 /Troposed
fuel availability requiremento for ‘.•• ‘ds jon. Areas could -. - .. anned to meet a future milestone ieee
California under Its section 110(c) PIP ; altcd’iatively submit a new attainment - section IILA.3.(c) for additional
authorlty II California falls to submit a ‘demonstratIon accounting for the ‘ ;discuss lon qf con cymeasureó). In’
SW revision that satifles the fuel - increased vehicle emissions projections. the second.case. the State would have to
-availability requkementeof section ‘ , 11 e EPA will release an update of udopt additional measures to backfill
249(c)(2). ‘ .-•‘ 1 ’Tfansporat lon AIrQua lltyPI nnhi g , theS!Pwithreplai mcntmeasuresto .,:.
Section 249 ( 1 ) provides that any -‘Culdelines” In June 19 and several replace those that were previously used ;.
serious, severe, or , udze e ozone ‘ 7CM Information documents which will as early-Implementation contingency
nonattainment area outside of California address the section 108(f) measures.’ •‘ measures, and to assure the continuing
inaycptlntothepilotprogramby,” l l lslmpoztanttonotethat:. . -- .dequacyofthecontingencyprogra m .
mibmitting a SIP revision to EPA that - “nonatI 1 m e t areas fl not locked into ‘Thicontingency measures for serl&ui 5 -
provides Incentives for selling or using” the estimates of future emissions given above ozone nonattillnmint areas
- the clean-fuel vehicles and clean .‘ - in the Initial SIP submittal At any - ulred b’ ecU 1 9 t be -‘
terna s as man ,- ore an area sea en a. •adi’nnate tocorrect any sb rtfafl In
California program. Such revisions must ‘Slat can amend the area’s SIP to get a 1 -
immnlv with EPA resulalions to be greater reduction from nonvehicle -
• .., _. • .u .. . I. ‘ -‘muestone (e.g., the S percent renucuon
pTomu yeare . . sources. - vs .o i... $
• enactment and may not take effect until - effect of Increasing the motor vehicle !‘ “ ‘ II £ale .• • ‘ -
1 year after a State has notified vehicle mIsaIons aflowedat theLuext milestone requuwuent presents we prowiem”’ *
• (0) Ref oxmidated gospline for ‘, C ntingency requirement (It , ,
The Incentives may Include a tloaalvehicle& The EPA wq iu&u wt to predict now nuch
registration fee on non-clean fuel - to pr omv gate regulations tins year - an area wlll,face at a milestone and
ve’ ’ 4 e , provisions to exempt dean fuel prohibiting the sale of gasoline that hence bow much extra reduction Its..
yphli4ø . from certiinTQ.I’a, pr not been reformulated to be - ‘ COntingency measures should provide
preferential parking provisions for - polluting (“conventional gasoline”). - for and ft Would be unreasonable to
clean-fuel vehicles. The revisions may’ Under aeètion 11Øc)(10)(D), the require the State to submit contingency -
apt Include any production or sales ‘prohibition Is to apply In the nine areas me es adequate to address a
• liu ,nAatee for clean-fuel vehicles or ‘.having the highest design y Jp e- hypothetIcal 100 percent shortfall—I.e.,
- clean alternative fuels and may not - during the 1087-1089 perIod and with - submit contingency measures that
- provide sanctions or penalties for failure 1980 populations óvër25O,00(L and -.- essentially double what the basic
to produce or sell saab vehicles or fuels, within 1 year. to any area reda”Mfied as pogressdernonstratlon provides). The
The Incentives may not apply to flee-i a severe vzon nonatraInin ’nt area. The solution to the problem of actfrlng the
‘vehicles cov edby the dean-fuel - elfectlve date for the prohibition ag Inst’ appropriate level of contlngw-y
vehicle fleet , ‘ • - - the sale of conventional gasoline in - - measures described In section J!LA.3.(c)
im) Casolino wriporrecoveay. The ‘these aonat1ah t areas In January j. (as tà contingency measures for areas
,M ” frator may by rule revise or. ‘.1995. - - : . : - subject to the 15 percent reduction -
waIve-the eèctIonlO2(bX3)requirensents: Thóproh lb lt lonmajbeextendedIo zkment)wouldalsoapplyto
• for abUcnarysourcegssol apar any marginaL oderale ,ser1ous, or serious and above areas pr parIng
‘.evireczcuwnonattathment are-ant the: - col$Iinrl%ey measures as to post-1996
; .areaa.Uthó MmlnlMratoi deti Inà:- tequàt of the Govórnor of theStatei -emIsV . ens .reduc’ onsmilestoneL ,
that dnbóthd s1ni ’c grol’mjstiâ s :-- wb ick the area Is located. Upon. - . (oj A 0 ieoswes. The-EPA
-‘ are In widespread use throughout the-• . ‘ ‘receiving a Governor’s upplicatlon. the. recognizes that some ecrious ozone : - - -
• .‘tuotor ebIcleile t.TheEPAwihl’ -v.. . - Adth ln lstratoravillapplyth, ‘-‘.‘ • ncnatrnln,i .ntareu(andperlzaps areas -
- address this provision Ma leparate , : .prohlbltloas set forthln section Zl1(kX5) with Iong-termattalñment dates for’
F ed ei slRe r not lce c oi e l ng .• against the sale or dispensing of: • -, other poflutannts) will have such large,
- section 102(aXB).: ‘. - conventional gasoline In the “opt-In” — •emisalons reduction requirements that.-
(a) Transportation conbofr. Section •. areanifective no later than Jüuary 1. ‘IdentifyIng, develo lug, and adopting In
82(c)(5) requires tbeglnnlng B years 995 on year after the application is . feud form the control measures that
after enactment and at 3-year Intervals - received, whichever Is later. The ‘. ‘represent the areas preferredstrategy
thereafter, serious areas must submit a effective date of the prohibition In the for thir australians of attainmant
• demoâstration of whether current ‘:‘: - opt-Inareamaybe ‘ “‘ed by.1 year’; may present an unreasonable burden.’
ag rv 1 pite vehicle mfleags, a* gate’ “. ‘-up to three thie bytbiMmInI atorif -The EPA believes that these are-u may
ve”cte emissions , congestion levels, - he finds that there is Inmi cient , - - ‘- need additional time to d -
o en parameters are, -. °stlc cepadty to produce enough . ailn certain “ 1 ” '’ ”-term ” measures
cau ’ 1 tent with those need for the area’s ‘reformuI tea gasoline foi all areas In.-
- tratlOn atm ““ nL 11th. .. which conventional gasoline Is tobe reach’attafnment These measures
levels projected In the attabin t “.: ,-- pnobiblted.Th’Mi mt fratm must,. , - ‘ would include those that require -
aseinfactéxced, the-: wake such extensions for areas with, -• complex analyses and decisionnuiLI ig.
State usw1Bmcs thtto develop and , lower aia a1R atIops before unaking
. a zeemion of the applicable . them for areas with blgbar •- verument des.
ImpI - nt .mpIan. .Th1splanmust - classifications. “ - . ,‘ °‘ It I.
2 .JJ _________ — - ‘—. ‘ -— . • s • .. . ..a £ u to BiiOW ,..ese areas
p 1eId wwa wI •, W i L.uaitiflgency ptO VJWOJ7S. rof , •
measmesfrom.bntziotEmitedto - serious areas as required by sections reasunauie auuitlonai lime to compiete
iecl1on’1Il8ffl bâmblnatimr with -. 172(cfle) and 182(c)(9) ,.Ihe.contlnjency.. ‘ ‘ .‘ . . - — •
- otheimobltoao ‘stiêfl1-t - itieáóàies c uld be additloqal measure-i’ - ie.wNO . -.
• re-du de-mIMI - ‘leve1 t’ dir ‘d ’”’ t -J -. -
- ••,• •-• - ____ INO . .
consis ent-wlth m ’n m sslomns levels ., ç other requlremoqre, or the accelerated .te 3
pro)ectedIntheat1atmnent - Implementation of measures already ps . u L -
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Federal Register 1-Vol. 57. No. 74 I Thursday. ApTII 16. 1992 I Propoaè .Rules .• 13521 ’
full development and edOptwn under the date, despite expeditious . •‘ source. per severe osone ulonattainment
• following onditi is . Implementation eilorts. The 1994 SIP areas, the endesioni offset ratio Is at-
(1) The plan contil ng the - must include with each long-term least 13 to I unless the SIP re ifres afl.
demonrtiation of attainment must . measure en enforceable schedule existing ma cr.sources In the . . -
Identify each measure for which.. -binding responsible agencies to sthleye .. nonattainment area to use BACT, , :. . -
additional tune would be needed for JuU Identified emissions reductions from . defined In section 169(3). In this case
devel pmentandadoption. - :eathmeu • . -. - theratIo.haflbeatleastt2tai
(2) The plan must .bow that the Iong- Along with these provlslons the.. jji jyio o jsergww ha i - . -
term measures cannot be fully-,, - State’s 1994 SIP submittal must Include ( emissions hunt mvwth in:VL5ecti n
developedand adopted by the a mlttal . ”backstop’! measures. The “backstop” j jii A), vi I?, appues1O vere
• date for the attainment demtnitratloa. • measures must be fully adopted and . omn nonattalament areas. This
(3) The plan must contain an -• . theduIedfo ImplementatIon to achieve requires that States submit revisions to
enforceable commitment by the relevant reductions equivalent to thosesasigeed their Sip’s Nove ber Is. thM :
agency that developinentaud adoption , each year by the Iong4erm measures. . Identify.aad adopt ‘?speclflces d .
• ‘W I )) oc won an cpedlIIoua .c edu1elo ..Whea each long-term measure Is fully ; f s, i , ,tj .A :
achieve specified emissions reductions developed, I&mu tbe submitted tEPA TO I’ 5 s tooff.” any
from each long-tenu measure icr asci i -as a SiP “‘ne ”dnientThls em..tiL, . t ft fnoii
year thtoug h the attainment year. . would also ptoposedeletlcnof •:. V crandnunrbers of vehidetrips’! aid --
(41 The plan must contaln ”backstop” associated ‘baksIops. ”TheEPA - 1 1 C
measures that would be Iniplenientedto approval of the Iong4e rm measures • .
achieve equivalent emissions reductions would alsdzescbd from the SlPibe •. ot iy i e
unleseL the long-term measure is adopted “ backstop”.meaaures. . .: • —h . -
-tâmmeauuraimirst- \ : - ‘:
be needed to meet a emlssions ’ .. vere areas ant .‘n onsiort1iIs Sip thision. States.
reductlon.requfremcnt during the first L• serloits area reqi rernentst. - • ShOUld the i àutei
years anar . -. o norea, as wan we. .. • • •
• ‘fbe ”badstcp ”measuresriq*ed follow Ii t e ddiU Iraq • . ,
under condition *4 must be ub tted. cj ’j lqorsicuonwysopw. aeJ1ik ) nona rirea. wlildi wm
with the 1994 attainment demonslratlon- For onone obai mm.rnI sikie.. . - • ,• • g : -
In fully adopted fozmThe ?baclcstop” dassI ed U severe, the termó ”ma)oi
weessmustbedeslgned togo Into. source” and”major stalionary source,” . J.t.I .j .Z i. -.
_& a2 IL. .3.1 3 J f ‘ — •V wi.,r i,wfl5w . wa9lma On. ,.... ..
on a ; orpurpOses “ “ program • . • -
• sufficient to achieve all of the .dtuJIoas RACY requiriment for major no*-Cl ’G - .‘“'“7° • •‘
identifledw the thlong-tennmea ure:, .so__ cudeanystatlonary.sce,.
•foreediyear through theattabiment orgru.., iirces,localed within a - • “7 ” j ’J” ’
year.The “backstop” meniures may- - contiguous area and imAo , . umio - W W WIW •&. • • - . ;
represent broad, euross-lhe-bóard - control that emits or has the ietendaI t Zai PthSI 9U u
a1cim the than - . n vinr iwwvv , i .i .tS ww awawye ..
thorôugh lyana lyzedand leve!oped. t1b JR on192(d)re ulx that . ? °4 ’ Jt? b
control measures. or this reason. EPA the same MCF requirements apply to _____ ___
does not anticipate the actual - •: sevem areas as apply to leriols areas. “ ‘ ., . -• •
Implementation of”bad stop ” measures Moreover, as itousaneae, the lower S ”t. -‘ . -. c -
In most cases as States will have ample applicability cutoff for na)cr on-CfG -
oppc,tuñltyto submitSiP revisions sources wiuld zesnlt In tii fl f StatestOtEisThuw ui iCI% ”t
Incoiperath*g the fully developed long, additional non-CYG RACI’ rules I . .: aie 5P6ciU tt? section
a - _aJ I aL • L .1 _— - I! I • 1I . .ILtOu iuteEtucuuu ’&tO
wu. . 3ures asu uuaeuu wu . - cases Wae i DO .uug ,w appuun w - •
• “backstop” measures from th Sip. • a squzcs tbeáea itting s tons per dmnon I .te attaInni” LbselectInguie
• Mditlonally, If. long-term measure : - eaZ or an e dstIng C rC far thascorce m pgrms iqt tute$
c ”ot be developed, then that State has category subject to I 1SZtifls.par year ‘ShOUld 4io ad 1at5 c s! . -
the option to submit a SIP revision • ‘cutoff applies only to sources above a downtown. u f l . . . ..
• Identifyinga fully developed and )iIghercutoff Rulesfor these sources - residential areas and shouldavol
• adoptedalternative irne tnreplace would be sub jebt to the measures that Increase orw1 , cat
the origInal long-term measure prior to . and requlreârenis of nan-CYG RACT 1d 5 5iOI f i1Iur T uau
any necessary imp lem .’ni .lion of • specified by iectlon 182 (b)(2liC) (l.a. - i uni. In O W uiui
“backstop” measures. niles .xp due by November l 5 1992 for S e deS. ii !w u.ui -•
Thns, a State may flnd that pregresa • ajo ot by an nonI mpbmeqtao% anumanua ory
.can be wfth measures that are e,dstiniór exnected CYGF - - - sanctlo Aencour tus •
fully developed by the 1994 SIP . . - ( ( jiisn _ (1FOffireè moô er the 5elect r alhdc ’fGt’s As Palt of mis
submItt tdatè. However, the State may• purpose or sadifying ihe ss1ods e foit States should establish s egate
deternbw ’ that erpeditious 5 ftah ... .nt offset reduction requlreräliits uleeuluu targets for lurpismentabon where the
of he NAAQS is Impossible unless the- 1n(a) (iXA) the emfuionó offset ratio is TOd fireolves c$Ions by nemerous
IP also Indudes measures which • - the ratio óIiotal actual ends Ions - - - lOCal jurisdictions unless the Slate ba -.
• C iuw ’4be fully d veloped until afta the reductions to total allowable increased obtained, In advance, binding
4 1994 SIP In dan. In its 1994 SEP )Udttal. emissions from the new or modified . implementabori commitments from S
the Statoisust cleady describe each of . ‘: • • • • • responsible junsdicbons. • -
these lcmg-Ienn measures and show that ,, The EPA Interprets this p ovs1on to
eacWmeanar cannot be fully developed.. - require that sufficient measure’ be -
and adapted until, specified future i . adopted so that projected motor vehicle
-------
- 23w- - Federal Register Vol. 57. No. 74 / Thursday. April 18. 1992 1 Proposed - Rülés
-
VOC emissions will never be higher - ..‘ which offsetting measures become - - - -House Committ e Report which appeas
during the ozone season in one year that essential to compliance: -. -b supporuhe interpietfltion. Th report.
during-the ozone season In the year - .. - - The A will approve a SIP revision- -states that t)he baseline for --
before. When growth in.VMT and .aa meeting thisprovision despite a -. determining whether there has been - -
• vehicle hips would otherwise cause-a .Jorecasted upturn In vehicle emissions. grbwth In emissions .d 9 e to Increased
motor vehicle emissions ptwn, tins - as long as motor vehicle VOC emissions -YMT15 the level of vehicle emissions
upturnmiastbeprevented The intheozooeaeasonofagivenyeardo thatwouldoccurlfVMTheld constant-.
emissions level at the polntof upturn - --not exceed a ceiling level which ieflects 4n the arva.w (H.R. No.101-490. paxt-1.
becomes è ceiling on motor vehicle - - -a hypotheticaleirategy of Implementing 101st Cong. 2d Sess.. it 242.) ‘
-- emisslons.This requirement applieI to. otherwise specifically required - - - Althbugh the statutoly language cóuld -
protected mIsiIons In the years - • ‘measures on èchedule and saving offset - beread to require offsetting of any VPf1
• .between the submission of the gjp : measures until the point at which V?.fl - - owtb. A believei thatthe language
- 4evislon and the attaInmentdeatIliüe ot do nvjse an: - can also be reid so that onlg actual
• - and Is above and beyond the separate : — -- -- —‘-— m m level 11’- - emissions Increases resulting froth VMT
- s qu1renntheRdth thepb lntiof VO wthiiedtobeoffsetThe.t*t uteby..
- -. - - - - ---- - - - âe. a,1onathaV- it owntetmsrequIresoffsetUngof” any
- the oion aeasonof that .growthln eizdistonsfrui grdwthli
iiani ,ififlmeasures yT.9ta onabletolnt rpretthis-- -
- • eri -. fan dage utequIrngthatYfl t .grówth.
Implem tediiiiquh dbyThe . -- tnustbe ôffiitonly’ivliere such giowth
— :--When this wve beg sto tarn up due to ..reiàltsin irnisslons Increases from the .
- owth laVibif OrVebId. trlp.,the - tnotorveblcle fleet In the area. - •. . - . -
e RFP-- . - c tthig becomes .flxed a ieZThe. - Willie It lii true that the language of -
. - .. - cMlhtglht it otdd of. theIt.R. 101 Ocappearilo support he .
-. - -. alternative Interpretation of the . -
luch an alteniative -
Ihavedr a stic
of thoareas-. - -
LSlflVt T13. r
ias4percentper
ave4olmpose.,.: ..
i such a m tory áo
fully offset -
‘VtvfT lfthebreas
n fit4al ..
tioLthe- .-
HL101-49Oma Intact.
ivenii
votedtobea
iofth lspzov ls lpi:-.
rátrlctIon -.
re hIstor P on.
itwunot
member of the-
Ieg s!alive
a ; -_- -
- ___
that reqtd ed . approach, areas woutà have to offset standard.and1n light of the absence of
by I ___than an increase VMTgrowtlreven while vehlcfe r- - any discussion of this aspect of the VMT
abj4vi the a rMfa d,,vjth to effect - - ethissions are decfinltig.Prpponenti Of offset provls lonby the Congress as a - -
on ‘ tw.ft the point at this pretation cite language intbt whole (either In floor debate or in the -
-------
Federal Regrster / VoL 57, No. 74 / Thursday. Aplil 16, 1992! Proposed Rules
Conference Report). EPA concludes that ( Emp!oyerrip reduction prvgmn 1 -de minimis flhlelnsectiqnhIZ(cR6)and..:
4he appropriate interpretation of section c on iaquj rJ uJ reqwres mai bIaIes ” ’ the special rules in sectfona82(c) (7) and.
1C2td)(1)( ) requires ofiseting vt cr . with severe and extreme ozone .. (8). as discussed above for serious and
growth only when such growth would nonattmnnient ireas shall submit a SIP . -4evere areas, do not apply In extreme
result in actual emissions increnes. revIsion requiring employers with 100 or ozone nonattainment areaa ,’ ‘ .
Section 102(d)(1XA) requires that more employamin such to (3) Modifications sn exb me areas, ,.. -.
specific, enforceable measures lelected -implement programs toreduce Work-, For modifications of major stationary
by the State be submitted by November . f 1 t d vehicle hips and mflestraveled , sources located In extreme areas, the
i igg . along with a demonstration . by employees. Culdance on the . ooo CAAA èBmhtiite the concept of do . :
that they are adequate to hold vehicle . I pmotatio i of the employee trip . , nlnt,nh ’ altogether foç the purposes of.
emissions within the ceiling described reduction program will be ptovldéd in a idetermlnlng a májo;ntodificatlon.
above. It also states that these up1 me t to this general preamble... section 182(e)(2) provides that any. -
measures, beyond offsethng growth In physical diar g of ora 4 intge In -.
methodof operation. ét the source that
emissions, shall be sufficient to allow. .. Extreme areas are required to meet all uit in In se ii emissions from ys
total area emissions to comply with the severe area requirements, unless -, . nay dlsçrewoperatlon, uáft. orother.
• RFP and attainment retu lrements.1hese otherwise noted, as well as the .,: pollutant.ernltting activity at the source.
requirements createa timing problem of following additional requirements. be con tiie,ed a ;
Which COflW! S5 Was perhaps not, fully. (a) Ma! an ar,sourcedefinWon.A modification sub cot to the jssrtDNSR
aware. Ozone nonattainment areas . .. For ozone nonattaInm IlI are_u .. •
..•,
bifeced by this provision - classified u extreme, the tenna major permit re e eats. . ..
otherwise required to submit a SIR. - source and major .titionai source, for. Section lar(el(2! does, bo revër . ‘.
demonstratIon p . t 5 : . purposes of the NSR program and the. provide for
• attainment of the 1996 RFP milestone RACE requirement for major non-crc . 173(aXi) offset requirenienti Jf the
until November15, 1993, and likewise sources, Include any stationary source. - owner or.oi erator f the major
are not required fo demonstrate p0* • or group of sources, located within a satIonar curce agrees to offset any
1090 RFP and attalnm’nt until con guous area and under common • proposed Increase by a greater amount
of onsite reduction in emissions from
November15. i 94. The EPA does not control that emits or has the potential to ‘other discrete àperatlona, units, or
believe that Congress Intended the . emlta1.lcasj 0 tons per year. .; ‘activities at an Iutàuai offset ratio of t3
offset growth provision to advance the (fb)RACl Section 182(e) governs • additido, thu new section
dates for these broader submissions. . extreme areas. in these areas, the UflI • stipulates thatthe offset requfrements.
EvenwlthoattherequIre nentthatthej RACTrequlremeatsapplyas forthe. . 4onotapplyIne tzameareasIfthe
offset growth measures be sufficient to severe ozone nonattainment azeu. modification couslbpflnsjalllng - .,. .
• allow overall R}’P and att tmnent in’ Howevet the majár source catoif for . - ___
conjunction with other mealnies, EPA , non Gso.nces is reduced to 10 . equipment reqij ed to óompl with die .
believes th$the November15.1992. ‘per.yeaL As-In the other areas, . applicable ImpletheptaUon plan, p ez m!t
its would not allow sufficient lessá cutoff Could result1zitheneed for or the Act Ibelt . :
velopa set of measures that would ‘ . non .CTC MCFniles 1n . a!orbQilW Secuon
mply with the o tetgrowth provision cases where no álstlng crc applies to I e ( si. iise of dean , ü l’or •
over the ic t . s.. a source in the area emitting abovelO Advanced Control Technology.” appllà -
To deal with this iimin* problem so as tons per year, or an e,datlng crc far the to certain boilers In extreme ozole
sourcs category subject to a 10.toa er’ .. nonattainment areas. The State Is
to allow a more coordinated ind year cutoff applies only to sources. required tosubmita SIP revision by.’
comprehensive pl I nIng IOcUs , EPA above a higher cutoff Rules for them November15, 1993that requires affected
will accept committal S lpievlsloitifor. sources would be subject to the same . boilers to use eltherclebn fuels or
the offset growth requirement underthe ule fremente of Ü fl ,adV flCedCOr1tIOl l iy
‘authority otsection 110(k)(4). This will sfled L) 1ou 182(bX2Xc) Novemb is, boa Affected boilers are’
allow States 1 year fromEPA ‘ (i.e., rides are due by November15, 1992 IndIvidual new. modlfled.’cr existing
oo”ditlonal approval of thecommlttal . for major sources not covered by a new electric uUli y Industrial; or
• revtslbn to submit the full revIsion _____________
____________________ commerclalllnst ltut ional boilers thit
• containing sufficient measures In cZJ iz ksetrabo . or the emit more tlian2S tons per year of No.
specific and enforceable foun..ThIs may purpose or 1 1 lu Ll.e sIona TheAct specifies, for purposes of this .:
not stretch lb. effective deadline for the offset reduction requirements of section sectiOn, that clean fuels are “natural-gas
full revision dealing with the post.1996 173(1)(A), the emissions offset ratio Is methanoL or ethanol (or a comparably
period all the way to November 11994. . ratio of total actual emissions - loW polluting fuel).” advanced control
The affected States way nàdlo submit reductions to total Increased allowable technology genèally means “catalytic,
• their Post-1996 RYE and attainment - emissions of such poflutant (sJ from the • controltechnology or other comparably
• demonstratlimsaomewhat earlierthan new or mãdifled source. For an extreme ffectK’ control methods,” and the clear
nâmInally reqpfred by the provisions-• ozone nonatta(nnwIst area, the - • fuel must be “used 90 percent or more of -
establishing the requirements for ërniss lonsoffaefritlo Is at least i.5 to , the operating time.”
‘dem onsfrations. so that EPA can assess unless theStat. requires all A boiler should generally be
the adequicy of the growth-offsetting . major sources In the nonattainment area considered as any combu tIon • ••• -.
;méisuresa aInsl all thrie criteria • to use.BACF as defined in section equipment used to produce stiam This
- SPC( dby e 1990 CAAA. With the • 169(3). in which case the emissions would generally not Include a process
ectra Ll aIIowéd through the use ol a offset ratio shall be at least 11 to 1. heater that transfers heat from
z21taI P revision, States should be (2) SpedicINSR rules. For the -. combustion gases to process treams. a
b o se procedurñJorprc ecting purposes of determining the waste heat recovery boiler thatisused
v r esgivenin A forecasting and • applicability of the NSR permit • to recover sensible heat f ’n the
ugg rldmi. — for serious CO areas. requirements under section 173(a). the • exhaust of process equipment such as a
-------
135Z Federal Reglstert Vol. 57. No. 74 I Thursday. April16, 192 Proposed Rules
• combustion turbine, or a recovery . . The A Intends to promulgate ts - long-term measure was’to have been
furnace that Is used to recover process regulations op the fleet program . -. . th pIcin nted. The measures must be .
•CIImniCBI&BOIICII used primarily for :. transportation control exemptions • - . adequBle to produce emissions
Eesldentlal space and ar water heating hort1y. Theie regulations will address - reductions sufficient. In conjunction :
aieáótaffectedbythlsaectloii. iheelig lbffltyoffleetsforthe•TCM wthotheprovedp l enprovls1ons.b .
Only boilers that actually emit more exemptions. States may at any iine achieve the peno un emissions .
than2stonsperyearofNO 1 are - submltTCM’sthatapplytoblgh .• reductlopsandto.attamtheczone
affected. Bodulcns vary from year to polluting or heavy-duty vehicles not NAAQS by the applicable dates.Jf the .
year. however, rnaldng applicability subject to the clean-fuel fleet program In 4dmlnlstratOr determines that the .
difficult to determine. Boilers wlth ràted extreme areas dn ng periods of heavy extreme area has failed to achieve an.:
heat Inputsof greaterthanlo-zomlllion traffic. - •- . -. - •-; •• enilsslonsreductlonsrequirement.et ,
Btugenerally havethepotent1alto - • - -(QNewtechnólogies.TheAct £orthlnsecUpn laz(b)(1)orlc)(Zland •J4
exceed the 25.tona .per.year limit ‘ .. recognizes that extreme areas ma)iiave That such failure is due In whole or part
dep iwUr g on the fuel type. A source to rely to a certain extent on new or : to an Inability to fully Imp lement,
with these high rated heat Inputs should evolving tedmoloajes to uteet certain of provlslons (related to pew technologies).:
therefore be considered affected unless, the emissions m IucUon requirements. described In section 182(e) (1 throágh 4)
Its federally enforceable permit •, The relatively long time between - --and approved pursuant to section-
specifically restricts NO. emissions developing the Initial SIP and att ithig . .282(e)(5). the Administrator will require
below 25 tons per year from each boiler. the NAAQS and the degree Of - the State to Implement the contingency
Boilers with rated heat Inputs less than emissions reductions àeeded to attain meaBw -es to the extent necessary to
10 mIllion Stu which are coal-fired and the standard, guarantees that some - ensure compliance with the emissiOns -‘
less than 15 million Bin which are oil-or . control technologies will not be fully reduction requirements of section 182
gas.flred, may be considered de mlnlmls demonstrated by the time of SIP- (bXl) and (c)(2). The EPA will set a ..
and exempt from these riqulrementr devebpment. These measures would. - schedule forlmplementlng contingency
since It Is unlikely that they will exceed Include those that may anticipate future measures upon maWn 5 a finding of
the emissions limit. and those few that technological developments as well as • failure to meet a milestone. -
dawlil emit very little In the a regate . those that may require complex, - (g) A efci!ures(ecónom!c
The State I. free to Impose mire -‘ analyse. and ‘ 1 ” 4 ’on ntaidng and 1nIiveprvgmms L Under section
strliigea# requirements. p coordination among a number of 1821 .gJ(5). If the State fails to submit a
(e) 7 4 ’$ duths heavytmffic hows. guvwm. 4 agencies. Section 182(e)(5). compliance demothtratlon for any
Section 182(e)(4) ( in Title I) authorizes allows the Mnb 1.tratorto ajlprove an - extreme area as required by section
-the SIP ’s for e dz e areas to contain - extreme area SIP and attainment 1a2 (g)(2), or If the area has not met an
provisions establiahingTCWa - demonstration that anticipate -. - applicable milestone as required by
applicable during periods of heavy - development of now control - - •- section 182(g)(1), the State eha submit
traffic that reduce the use of high • technotoglea be improvement of mdstlng a plan revision to Implement an -
pothitlag or heavy-duty vehicles. The - control technologie, If the SiPeatlefice economic Incentive prc am (as
section states that thls?ntborlty Is the following lterIm -. - - described In section 182(g)(4)) within P
granted notwithstanding any other- ‘:• - (1) The plan ccntalithtg the - - month . of such failure, The EPA urges..
provlsloapf law. ;,! - -‘ -. dembus I mtb o nofat$ l ñ lmnst -’ - theStatetnth lsfnstancitoin lt latethe
b4 de.4II section 246(b)reqt&es the Identify all meaeuree Including the lcui - developwent of an economic Incentive
-Admln(sfrator to promulgate tegulatlon. -term áeas rófa) for*hfclr additional ‘ program as soon as It can rea!onáb) T
to ensure that ce tab ’ tM’I Including - time would bençeded for dóvelopment define the objectives and scope elan
thne of day or day-of-week restrIctions and aduptk - . .J - .-‘-- - appropriate program, without waiting
- and slmflaimeasures that restrict - - (2) The plan ist show that the Ióng until such a faillit bccurs. The EPA
vehicle usage, do not apply to any dean- - term treasure(s) cnnot be fully -• - - belivis that early Initiation Is Important
fuel vehicles that meet.the requirements developed and adopted by the submittal so as to allow for sufficient lime to
of the title U clean-fuel vehicle fleet date for the aiI ln1nent demonstratlwi’ devalop Implement and evaluate tb.
-program. That sedan states that It . and must contain a-schedule outlfnhi g - effectivenes, of the program. Economic
applies nok thshiwl g title L - - the step. leading to flnaldcvelopment ;. Incentive plograms are dlscu sed in -
• The EPA believes that tli se two. .and adoption of the meauie(4’ -. • -- — more detail In sectioajlLH.3. ‘-: - -
wpnscanbeharmouIzédby . (3)Theplanmustcontaln :-- .- - “N ’
Intc . iivtLig section 218(h) as allowing commitments front those agencies that• — Ofl u - - -
utly regulations that Impose traffic would be Involved lndeveloplng and -. - (a) GeneraL Nondassifled ozone
-controls on veblclel otbi than heavy- - implementing the schedule for the -- - - areas consist of transitionaL -
duty uIun-fneI fleet vehicles. The EPA measue.:., -- r- - - - . - - - . - -: - submarglnal. lncompleteFno data areas. -
believes that controlling the nonclean— - (4) The plea mast çrintaln a- -. •. An aree Is considered transitional under
fueL heavy-duty fleet vehicles along -commitment to dãelop and submit. - .. - s&ka 185 If it was designated - -.
with all nonfleet, heavy-duty vehicles contingency measures (In addition to nona*tRhm .ent both prior to enactment
edit T - liVt tyiuL r . congestion and those otherwise required for the area) and (pursuant to section 107(dX1XC)) at
- - ‘ &ii peak traffic conditions, that could be Implemented If the. • the time of enactment and did not -.
Secliom i (eX4J and z 1e(bJ can thus be measure is not developed or if It fails to violate the primary NAAQS for ozone
harmonized by *llowing Sip’s for - achieve the anticipated reductions. - over the 3-year period Th87-1989 (Le., - -
- asimwe arem bL.I t - frafflcconbol - (5) The long-term measure(s) must not - measured equal to or less than 1.0 -
onldghpdlluting idmo tbeavy-duty. •. - be needed to thee ny - d ë á based on fulleet
iabfde,, uty deen :; ftons” W tawithinThe fi s of quality-assurethiata fro m PZOJIeIJY
fuel fleetveblcles that have been’ - .: i D ye es afte a irt TheStath must-. sited mo1tor(sfl ubthirglnaiaftasfqfl!
exempted under EP&,egulattons - - - - submit Its contingenty measures no - ‘ into cue of two categories that lirlse’ - ‘- -
promulgated pursuant to sectlonZtfi(h).? lathr than 3 years before the o$gIoal -under the provision, of the 1090 CAM
-------
iransidenal areas. To satisfy section
172(cJ(1), transitional areas (section.
185A) that “ ucdJo showno
• violations as of December 31 1991 must•
ensure, at a nilnbnnm , that any.
• defleades regardlig enforceability of
an existing rule are éorrecte& While.
section IBM exempts trunsitIo al area.
from . ll Subpart 2 requfrether te until
December31, 1991, and that e re ppUoa
contln”ei until the area Wrede,Ign ’tid
to ( assI t 1I1 the area •
astisfactorily demonstrat dsttahun.t -
/ by December31, 1!91). 6t1ths should be
awsr that ft order to be redesi uated
— to attalnineig .iith areas must correct
any RACrdeflrL.uide, rags ding
enforceabIlity.. • • ....•..:,.
IeteIo ata areas. Since It
Is not kuowbr whether these areas are
- vIo!atIng the t nA*jt4 or not. It I. EPA’.
position thdzeqairing r axr cttons
Is a e po ” bfe However, like
tran nil areas, lncoaJplcte/no daii
uaa muatcon any RAcY
- S • -‘ -. - %;-• •p
..Yederal Register/V0L57,1 4 0. 74 / Thui sday. April 1,1992 / Proposed Rules -‘t23525
This situation exists du to the.’ -. deflciendes regarding enforc ability of nonattainment areas, k cluding
adjustment for missing or Incoinpieti • txIetIng rules In order to be •. - submarginaL transitional and ;) . ‘
4ata steu calculating expected -•. ,. , , edesignated to attainment. - - - ,. , incompiete/no data areas, aequIredis
excee,tAn The first category • (Iii) Submarginal areas. Since It Is toadopt.NSRprogramee lngt be .-
(Category I) consists of areas presently known that submarginal areas are . -. .requIrementaoLaecrJon i
designated nonaltalurnent that are - . --violating the stafldard (only their design . am ndedj - • -
violating the ozone standard. The . ‘ i,alue Is lower than the threshold for _______ (c)
second category (Category I I) consists of which an area can be dasslfled)ft Is e oruy a1 Lt nonattalament -
areas bsigr ted atta t n’ ” at, , EPA ’s position that, .uth-area.must ‘a eá must meet the appliceb!, . - ‘
- enactment that are violating the ozone 1’aake.thssamsRACI ’ corr 1I ur(1fu.. in litni4na tseidw mentsof .ectfon
standard. Finally, If an area retained Its- ptevioeslyrequlre4sama - r • . • -
nonathllnment designation at enactment Llkeniarglnal areas, sub.marglnatartas • - . , 5 .,) ,
(unde section 1W(d)(IXC)) but - -. az,e iiieedlng thaczonuhuwI rd-usd ’ ‘ d l ’ emWe&,fwl 4
adequate data are not available to thenfcrv hou3&aj plyihe same Ieàl Ois . .j .i mpIete,no . ta . .
- Indicate whether one or more violations “RAC iwa iequkedbefcse4 . - - - z 8 less sedousq ‘ ?
• of the standards have occurred, bb area enact’t AJnde, secHaiIyZ (b ) , these il areu
Is considered an incomplete data orno RACY cuzr c*Ions must be Incioded In-
data area. . - ‘ the SWrevlslori due Noveibà1S iE93. rit for c ineuures ’
• ‘SectIco i85A s e 1flrallysxernpt. . Howe er, to the extent an&irea Is’ iwwin,’p gency - 3’ -• •
tr ” ’ M I areask subpart2 .. sub .equenuljv redassifled 10 cue .1 the
.requIrementsunULDecembee3Ij1O9L ,. noua” ” ” ai R t1oni InTablel ¶b01Mur mmnt hrC! .
• Howãer, the CAAA are silent on • of sectIon 181. It will be subject to the ______
whether seth areas should be ei wyt tlme schedule of subpart 2. • ‘i:. • bee L b ______
- from subpart 1 requIrements as well. C (2lAHnInment demonHroti ection ‘ Uem
- ‘The CM provide no specific guldaitce 182(a)t4J spe ’ c.hy exempts inarginak c Th aPProach
for submarginal and incomplete/no data “areas from any a. ’ ” ”t,t • • authorized byAIabam .v i.wiie, ’ -
areas concerning applicable • -. - demcn_stsaticn requiremeaLsince - : - - 636 F.zd 323,30041.40145 (DC Circuit
requirements for these cate oz1es. . . marginal éreas axe exempt - 1980), whIch held IhatEPA may vxmnpt
Subpart 1 contains general SW pbinntng ,zequlremént. It would be unreasonabli ‘de &nl from’sstatutocy -
requirement., and EPA believes that • to app’y thu requirement tq an area that Q t .’wb enihebord e nsOf -
subpart 2 Is not applicnld, to - - - - - was either riot violating the s ’d or . reguIStIOIt.WOUI4YW4.liltlS crnovamm -
sub argInaI and 1ncomp te/nà dat . recorded . design value so Jowls tobe ( ( 5 t neoraa}es ‘ ‘
- ( 172 a1f2l
n t ednin ftab m e qf j - prasinathat the existhig P . :
‘s.apect b subpaEt1neáqãarily kzkew”telndanyexIstlngan&,
-apply The EPA’s Iptez eptaUon if the- -Ms7edora1zeementiIs tha,,
sectioiI72(c reqeliemsntefcr these _____ ____
areae Is given below. Under s ”ectlon
i72(b), applicable revision, to the W -
are due 3 years froip designation under
section 1W(dJ . ___ ____
LconfrOfmeorwes -41i ____
requires an tihi,n.nt date of no iair’
than $ years froman area’s des1gniUdn, ’
- • - • - - as Dorral “mItt F azeas designated ‘
- - title U rules) wil be ffl i.nI to provIde nonattlltnm.nt unde sectiOn - : --
in these.areas. 1o7(d)(1 )(C)(I) (pre.enactmnt, -•
re ’cuabIe further progress nqna n’mm.’it areas), the aft. ” ”t • -
requirament assumes a long - -•‘ - date I. No ember 15190$. For newly -
nonattalument period era large amount d,*Ipjtnted areas, the a nIn f date
of edut tIow required to attaIn. Because will be 5 years tQr. the effective date ci
a transl”nul, submarginal, or - . - the nonattah%mllurdeslgnàliá. For - -
Incompletadata area Is crislikely lobe- - submaz gL alindIni iàmpl te /nodata -
• already-in ce near at tnmntjEPA will area. that fall to sth In 5yiars EPA.
keata SIP that Includes NSR and RACrI.IU, co mld.rIng curar mors ofjbe -
-. “ ‘ ‘- - •
, even ese areas are- • , ... , . .
already a t ln(lng or near a”' ””e”t, - a 9 a • u ii “mum -
they will need such an Inventory to. • -- at iva.t - . - • -
- -;.
(fl U ke the emIuI ns Inventory Incomplete/no data or b atgIda1
re [ ll t. the NSR requirement Is not - Is5I5fl value, the area retains Its as
tied to an area’s proximlty to at’mh ’ m.imt but EPA will tWiten subpart 1- -
- a ti ei requIr.mêniL.ThIs could Indudefurther -
nonattalnm’m”t area from NSR - - RACY meas rreI , or poullbly a basic t IM
requirements would dearly violate the P rO . - - - : - - -
Statuts. Furthermore, Ihe new NSR - The following sections further discus?
program is one of the CAAA’irnajor - the applicaSility of the Act’s • -
bulwarks against-further detetloratlon of: requirements to each of the three types
the Natidu’s air-quality. Therefore, all of nondasalfiable areas. -. -
-------
I. . -. - . . - — .- - - -
Fsde?aIRst lVoL57No..7lThrsd y,Apiili8199Z/PróposedRu)es
(b) ‘anailionaL A transitional area • ed ngpartDNSR requirements will can be classified as marginaL the area is
-. will have to meet the requirements - zemalu 4n effect imill the area 1s. . - submarginal. .
:- ile bed below. - designated to aft 1mnent, at which 12) Cotegoryl—(Newsionaftohrment
-, es&w reguuements. The time the PSD requirements of part CwilI pleas). Category 11 areas Bre those areas
. &uu M u ia wc apply. If the area does not have an . designated undassifled/attalnment on
November
• B, 1991 Fed Register approved paxtD plan for NSR permitting the date of enactment,but with an
oh: ’ areas din nd it issues a permit for a major -. average expected ex eedance rote inoi e
• month “ od from” lalIIw 5 ui 3& stationary source crinajor modification than 1.0 durIng the 3-year period 1987-.
1987 tO •.jn the transitional area during the -. .. 1989. These are e are violating the:
• 31. 29 Po yuuz are he Interim period b fore redesignatlon. the standád. yet their design values weri -
• i!nrr er suupart 2(ui uue 1 ‘ State permit should comply with the :. teal than 0.121 ppm. below the threshold
,.w flY . iIA4ip; requ lrem inta ln4oCFRpa,t51. - brwhIchtheycanbedassifledas
were w uu u mw 4. - I i ‘I• IJ
December y j .. . -.. rn . . . .. . . . ane 2 section 181
Administrator will deleuulne • (4) Failure to ottrthLlf a transitional 11w EPA so describes such areas as
• basil of tue area’s area violates the NAAQS during the 3-. SUYginaL
eaC d Z1m 5 Whether the area had hi Y Pmiod from Januar7 1, 1989 to - ‘ (3) Requizement& As discussed ibove,
fact attained th NAAfl for amne b Dmrub 32, iggi, ti it u be -• all nonattainment areas, Including
December31. ig9Lwii’ere classified In accordance with Table 1, sub arginaI areas, are subject to
Administrator deL,mIr s that the =-. - eectionial(a). Upon cláilflcatlon, OeVeTat of the reqnlrtwenta In subpart 1.
attained the NAAQSj the Slate must W 5 shall conti us tø b subject to the Specifically. section 172(b) requires a
submit a ‘ ‘ nce plan for the area 8ubp 1 - misiøn withIn 3 year, of
withIn 12 months of such determination.’ not addressed In subpart 2, and thow designation that must meet several
In aMWin the ether foor zetje jcsttjon SpeCifiC piovlalons mI PT subpart 2 • In particular. NSR.
requirements tinder section 1W(d)(3)(E) app priate to the area’s ctasalflcalion If a State submits a request for
mastbe met, InelnpdJngRACFflx4ips that wonidhave applied had the -. - redeslgnatrO 9 to attainment, thena
regarding eniorceability • been so classified at the time of the P?°P and adequate maintenance plan, -
(2)Redeslgnotlon o onsItionoJ notice of other nonatrnimn iit areae as defined in section 107(d)(IXE). must
Or The State must submit complete Initial clasllficatlona tinder section be submitted. -
monitodog data 181(a)( For exqmple, such an area (4)Failure tooftain. if. atsonie time In
that supports ràedialionto would need to submit RACT fix-up the ftit*iz r (before the area has ‘
• attainment (La., showbigno measured requirements of section I84aX2XA). •. demonstrated that ftbas met the five
joIali n during the o rnonth period wIthin e months of , inDthRcatinn. The • re(tUfreifleiltS for redeslgnatiqn under -
• • j , A tratiwmay however, adjust an section l(11(d)(3)(Efl..a submarginal area
- iggi ) is .Jff =L . tffme for the - applicable deatUhi l (other than- violate, the NAAQS end the design
M inInlatratorto ma l i. niIIn gof attainment dates) to the exteát that s’ value 1* equal to or 1 da 0.121 ppm, It
attainment n& to promulgate such adlusimenti. neceslary or apPToPthte Is A’. pusitlon that the area will at
- finilhtg by j*mea iela jf the - • to ensure WIIOIDI among the ‘ , that time be classified tinder Table 1.
Mmtiitatratorflnds tbB area ha. • requhe(4submI_s.’•’; - • 5 - • • section 18l(a) a çcord1ng to Its design - -
attalnerltheBtatemustsubm lté “ - If complete mosdtarfngdatareveal ralt ‘ -:-‘
- ini lnfianance jlanwlthfrr tyearofttae - thr ta tiansittânal lisa is voIstt tha”’ Once classified, the-area will contimlè;
•da *ft d thiid tLw t ’ tobe.ubjectto those aubpartl ‘ “ -
- support the conclusion that thi ‘. -. 0.12! ppm ‘—below the design vabia - requirement. not addressed In .ubpai 2
redesignatlon re freinçntithurler ranges InTablé I if ri1Rtra1 f1wn and the siecfflciirovlslan , of iubiiart 2 -
section 1o71d)( )(E) have beel let. Foes the area IUbe coaaIdleda azginaL determined by Its classification. Under
dlscubelon cfthispeclfldlltatl actIons - Refer to the category Ii i uti section 1820), these pw Wons apply as
-. requl ord e rt raUsl)pftbeflv, - ufnaL” - : - - - If the area had been so classifledat -
redeslgnatloq requirements. see - - (c) i 1j f—() ‘. enactment, except the EPA may adjust
“Redmins’ WRdor etcilon DLJLS (Previoustyd - —a--’ any applicable deadlinel (other than
acumen If - ) t t
• (3) i fl. By NovembeI 15b 2992, all -. - -. necessary or appropriate to assure - —
- ••. Lth J H
• ee I L I - owe .1 1th .. - • - • —
- a . . must wu u rulee to Implement area’s design value was less than 0.121 5 NS& ByNOvember 1992, all
in, new pzIDIISR requirements : ppm, below the Ibz.iiK4 fax wbIdiJt • mmoiie non tafnment areas. IncludW •
section 173. In the meantime, the . • - .• - - - submarginal areis (both Category land
Categuryfl)mustsubmitrulesln -
-: I ttat appr . .,u .ble form to EPA to hnp(’ neit
itck leD 1 in.1gs2.aatIiba a. • - kuad tub. c Sipa .. ’ .. ant tin ataaitcq .!he new NSR requ1rem euts under “
• • section 173. is the meantime, the -. -
tIfJt15M. su m1 5aot n ji., - miss the po JutuM k ..II . . . ha.. PSSS.i ‘A e,ds” ’ “ b
• . - . . . requirements ::
3M5) remain In effect. .•
- . if a submargiliat area does not hive
CMA. -• - ‘ ‘ --- - ‘ ‘ - ‘ an a Aiwud DNSR ttlng --
- ‘P - - st or in. ii,wItheSt . u . 1. -- s .. i
• — • — — - r - . a
• . -. - rw ‘ • ‘ ‘ ________ •.. - .,•.,••.• -
- -. . for amajo stationary sqwce .-
• - • major mb qa Ion n that ar e a th . -: .
i%a e
-------
b°’ g v w i. 4’ o. 74 I Thursday. ‘April 16. 1992 I Proposed Rules 13527
‘the a transport region In the osse of a State
subsequently Included In a transport . schedules contained In each Pt tI .
In -region under section 176A. The crc .. The crc document In Appendb •‘
aent . discussion here will focus on the region .5 lists the 11 CTCs A plans tcluue
he Slate must demonstrate that the live established under section 184(a). and. - ander section 1 . The Slates bou1d
redes gnatIon requirements (I-i,) und er for convenience, that region will be refer to that document
pection 207(d)(3)(E) have been met. See: referred to as theNoflhieast -tienspotti -.*th ore.etioo jat(bflz)
section ULH.5 which describes the - . -veg losci ustjspo rjrjglpp Jf .. ‘.provIdes that YOC sources with thei
spedfic actions that will determine other ozone transport regions are - —potential to emit a least 50 tons per
with each of these .. established under section fleA. Statei r effecfivelyiübJect to the . .
— .. In these regions must also adopt and moderite preäuhements Therefore.-.-
, orno p —j1) .. Implement the sped ntrcls . -•. EPA believes that the athedu e for:.....
aboveIn. d ihatn . .. bmltthigand Imjlr. w’iirk,g these
all nonat t 1 nm ’ 4 . U1J aftanon1j/ L4 State within ibs RAcrrules sbouldbe consistent W1th
areas, Including Incomplete data or no transpon region wdIlsdopt a prc am ‘. reqn b J2(b)(2)
date areas, are subject to the . -‘ pursuant to section 184(bX1XA) meeth wbi&require Jjpy ber j
-requirements in subpart 1. Spedflcafly, the .
section 172(b) requires a SIP revision Wiluw,dVeldcl, inspection an a ‘199S -
wthtusyearsofdes lg nat lon. . 3 - pm . Ar .
If a State submits a request for por’f of s MSA) vlthln1hs$tate (liah t
rédeslgnafton to itt Inmeni, then . a population of 100.000 0 Ote 1b8 sources of VOC having the potential to.
proper and adequate maInr We plan. - doss ot .ddzess thevensan yeerJor.Ie ,ult at Ieast5O t s perjear shall be
asdefined In section 10?(dJ(IXE). must this popelatiorcEPA b Ueves par of 1 considered majeraoui css Oiiä subject to.
be submitted. The discussion under ‘ena (1990) j &coered year to requirém entitha apply to ,
0 Redeslgnation” In section WM.5 qf this use In Is caaä . sources In ozone itia* c 1assLfled ,
preamble describes the specific actions 2 Slati p —as moderate (section 182(bfl. th State
that will determine cowplI roe with In a rdgwnmusr adopt VOC’ also ad ’ rules to annly the nart D
eacb.ofihese requlrements. .. RACT regulation, toe sources located - IM1. , l dlII i* f •
£ N flI November U.1992. all within that portion at the State included 1 i: 3 8 pf the state:
ou’ iieimnti iaInment areas, including In a transpoq region Under section .-
‘Jacom eteorno- taareas.mus .1 I ).the rules . apply .
submit ivies to Implement the new NSR to sources foe which a CTG was Is.
- req ts ons 172(c)(5)an or . enactment must . . Ieiatanewort
173. In the meantime, The existing p rtD - submftedbyN bE 5 -1990. . ’ ____
NSR requirements sonnt, , in effect. If Se’ ’ 4 on 184(b)(1XB) specifies that LA t.and
-. the lies does n o have an approved part State mustsubmlt by November15.-. . ,PPW l 0. .. . -
uratmesource an us..
mftfing program. and we 1992,8 plan cOnt*In(ng RACT rules • a prior to operaUon.The ez 1sa1ois.
e lssuesaper rn ltforainajor . emya ne nf’ . It..ai I. - ntherat loofectiial
lonary source or major modiflcatlon enacthenf However, many past - Ounoi a. usa u 0 .
In vie area. tate permitting program enactment a not ble - ‘In emissions that
mp y e requirements November15. 199Z Indeed. Congress dia tióctl U
o partel,appendrxs,vn b notcontemplatethata . fth jnth lscase.the
new part D NSR requirements become ivici November15, 1990 (see section - ‘ ‘—‘ ‘at least us to i s.
effective. - 183(a)). Poe that reason It would be a. 5
_________ - LI I fSewapp emozo ..
f ’ra i p # ) - ImpoesIb! Iota State tO puonut - .areas).it should be noted that In these . -
RACfrlesjeflecdng crnwiuerutlou -; - -‘ - - ‘ serf -. cr 1t a
in aflows the - - -‘ the post .eâactmerst.crGs by November -___ ould a - ‘tao -:
- Aalinlnhtrator to establish a transport - order to meet the that tt a I),
- a -v j wvuan wiuu I W submittal renuirement. te S. I -11
whenever ’• ‘ “ f . - oui aiweua otanew.0? - -
-. r” 0 submit an enforceable commP ”snt 10 - ,,j be consintent with
pollutants contributes significantly to adopt and Iniple ” ” RACE rules for’ - ‘‘ “ ‘ onal -
- vi on of the AQS Section sources covered by Cl s issued after js irJ e ts of a t.;
dl .ln. .tlofl of law an ““ “° - - D must be met for permit Issuance.. - -
• r’ IS$c1— 276A(.X21 provides. pIU - In nonata nl51ent areas within the .-;
l W %0W0 a. - .1. Ir pint t -. . ff f.. . ., ,P ... ,. Ihr -
:Connecti -Delaware. Maine. . 1lo.. . ‘A wW sot silo.. a delay to the - blflsyinui . a.u. 0 -
Mazy1and. Miuai±usett. (4ew - .dcØosd.esswes under section laqb) doe to a be obtained from the nonat’ ” .’t
‘ ‘ “ New” New York. - ‘ M° dodO 1th Ststs b - a ea where the SOw i wishes talocate
D......at 1 1 ‘ exceptasaUo wedbyseqtIon173(c)of
9L . 01151 withIn. usa.,...it . nod the u0p.tt - - , , - -
Vermoat.-and the-OvISA that Includes . . _ ..s _ a eqseitoter nt.5os .the amended Act. ouwun u.e Cj nawW$.
- the Districtof Columbia. SectIon 184(b)-- q )y t I. ImIa . the w ds1nt7 - offsets from ourer nonatt*l1 1fv1e t areas
ontaInithe ipedfic requirements for Stites rosy M v. iegerdlng pIE ssbtnlflsl . due2 If the g a hasaqual orhl8I
. ozone transport on(4 - ___ n0 k t
I . -J SPecrf I C reqruremen t ales - - en. u - area w ore c source oca a -
vIa ozone fransport region , must - - does not ip.dficstly dI.cvs. h .nth Mi then emissions from-such other area
revise their SIP’s to incied. he and, Stale c bi eubled to the ,equlreaeota . con -jbute t a Violation of the 5 Qfl
easures byNoremberi ,. 12 In. the -. - . . -
r enan. at the regfo.-i estabhsbed by.sectlon j os the rqicn snd .neinpt ed foes th. “Sec section W.G Maaumr4etçdi .cunI’ n c i
or wIthin Smonih.of Inclusion In .equlmonents- - . . . -
-------
- -: ;. s..-, - ‘ - c
13528 F dealR gistek / VdL’!7..Nó74 JThir Aay,’ &prli 99Z /
ma the flonattahunent aráln which the of section 184(b112) to adopt Stage II r :r duclion o nItsoWnto iemonstrate
new source Is located. For attainment measures identified as achieving att (nm iit.ln these cases, the arcs Is
areas within the transport non. aquIve1ent reductions. The transport .‘ zelIeved from certain ye uhenients Iii .;
guidance for location of offsetting’ provision Is a separate requirement that 4he CAAA that would require additional -
emissions at 40 CFR pat St .ppeádlxS, focuses not on Stage II, baton means to controls. There Is noexpHê lt reoöguldon-
should be followed. Appendix S: get reductlonsequlvaleot to what would in the CMA Of this occurring In other
s ecIfles that emissions offsets for VOC be achieved undereect1on182(b)(3). situations. ç- . -
may be obtained from sources located (b) Other ,vquarementa. The transport-: in generaL two situations exist 1n
anywhere within the broad vicinity of region or portions thereof may alsobe. ‘which an area might be subject to
__ - subject to additional control - -• t additional endsslpns reductions (
VOC offsets may be obtained If within, equlrements resultlàg from - .-requkenients related to the r
the same Air Quality Control RegIoi .. recomn endaUons bum the transport, -4emon*atlonofaltahwn.nL In the flns*
IAQCR) as the new source or from âther commission section 184(c), 11 EPA’ an area might be receiving euch high
areas that may be contributing to the . approvela in...endatlon from the leve1softnanspo t that even if it rednkii d
- ozone problem at the proposed new - nonimls’Ion iubmltted under section - .‘ .1ts emissions dramalldally(é.g, totally
sourne location. It Is desirable to obtain. 184 (c). EPA will Issue a finding thafthe - ellmtsiited Its own emissions), *he
offsets from sources located as tiose to . SIP for the appropriate State(s) Is lncomlngezon. and preàrsam would
the proposed new source site as . ‘ Inadequate and niust be revised $thIm 1 - bebigh enough to continue to cause
posslble. if the proposed offsets would rear to Incorporate the ‘. ‘ violations of the standard beyond the -
be from sources located at greater - ,ecomm ndations of the transport pplicqble attnImI s t date. I
distances from the new source, the commission. . -: segond situation, the area might be able
• reviewing authority should Increase the Each ozone nonatfahimant area to achieve additional reductions
ratio of the required offsets and require located within the transport regIon Is (beyond thoserequired under section -‘
a showing that nearby offsets were . still chbjectto the applicable . 182), but even Where those additional::’
• investigated and reisonable alterna lves requirements for a demonstration of - . reducliáns could be ichieved to -.
were not available. . athllnment under section 182 (b)(1)(A) demonstrate att tnin.nt the question.
The PSD provisions of part C (as well and (cX2). The EPA realize , that In some srfsei Whether It Is equitable torequhv
is the nonaft lnIn.nt provisions . - cases certain demonstrétions will be those reductions or to allowrnm’ethne -
• discussed above) continuiloipply jo ‘complicated by the RFP requirements. for the redUctions In the “u wInd”area
• stationary sources In the areas and attnlnn ent deadlines that apply to to take e,
• designated attainment dr’mi 4 naslflable ‘areas of different dassificatlons.” For lmowevèy, the statute provl es no
that are Within the ozone transport .• SXafliPle,a mqderate area located expnss relief for these sltualion&Thus ,
reg1on.’1 t1e I does not exempt these within the transpotheglon Is still vbere the demonstration of eftuiInin nt
sources froth the P90 requ1rements , ,.. subject to the O.yearattalnin.nt - -. Is complicated by transpott between
Likewise, the major stationary source deadline and the sectiole2(b)(2)(A) • two areas of different rla&Rratlcus, th e
thresholds defined Ii th PSD mules .• requirement to provide annnal emissions State Is still responsible for developing
continue to apply when detennining PSD reductions In Its plan to attain by the and ubmliUng’de zo straUons which
..applicabflJty . .. 4eadline. However, this area Is(at least, show that the stanAavd will be attained
(4) Gasoline voporJecovei Section . - presumptively) being affedted by by the applicable date. In other *ords..
184(bX2) requires the Ahhniniatrator to transport from another area(s) and Is, as : the StUto must jui,Ide for sufficient’ . -
complete a study identlf flng control - well, possibly affecting other areas, emissions redactions on a.sdiedule that,
measures capable of iéhlãlng - ItseIL If the “other” areaó that . ‘will ensure ittainment fri Itffthoderate.
emissions reductions comparable to . affecing air quality levels In this area, for example, within 6 years after
thpse achievable through vehicle - moderate area are classified as serious enactment. The EPA, believes that th
refueling controls contained Ii section or severe, those areas will be redudng wording In seciloti 182(b)(1XARi) :
• .282(b)(3) by November15, 1993. All their emls 1ons over a longer time frame -requires the State to opa piazi
areas within a transport region are then - In order to atialn the standard. That Is, providing such enilaslons reductions.
required, within iyear of completion of these “other areas could still be having The area does not have the option of -
this study, to adopt arid submit as an. significant effects on the moderate area requesting to be reclissifled toth next
-SIP revision the comparable measuresor at the time when the moderate area higher daOs1flcat1thi. - . -..
• the section 182(b)(3) Stage’ll vapor - must demonstrate attalnment . - . - At this time, EPA Is not mpre to what
recovery measuresjlowever, pursnant As discussed within the context of degree the sltUailoñ -described aboiie Is -
to section 182(b)(3J, ozone : •.. -: demonstrations for moderate areas, EPA hlcely to occur or know of any teal cases”
nonattalnment areas clasaIfled as. . believes that this situation Is somewhat where this will be aproblem If such a
moderate or abovi must adopt and : . analogous to’the situations addressed In situation were to occur, EPA Intends to
submit Stage fi rules by November15, . section 182(h) for ETA’s and In section Itok at the facts sjledflc’to that area.
1992. Although moderate nonathitntnent 182W for multI State ozone. - •. Considerations would In ludé the
areas that are located within anozone - - nonattalnment areas. In these cases, the results of the irea’s attafntnentanalysei
transport region may become exempt • 1990 CMA recognize that at some - along with anj, region-Wide modeling
• from the section 182(b)(3) requirement point, an area being affected by - results In evaluating available SIP
due to the adoption of onboard ennselons from another area(s) may not approval options. When such arias
• eguIatious (see section )2(aj(6J) such - be able to achieve sufficient emissions • develop the demonstration of attainment
-areas will remain subject to the • ‘ - ‘ - . • due in November1994, they should”
transport zequirementof section - “me . i’— .. - ’ hue regarit1n &e , within an - providç a comprehensive assessment of’
.l84(bj(2)..The exemptionand wa1ve sx1.this U 1t N000 .l.o aPPl 1 I to ueaa that - the Impacts of all control measures
provision of section (aJ(8J applies being Imp lemented In both the local and
only to the sedtldn 182(b)(3) Stage U - , U1.A34b) - upind areas S ates shou’d dearly
requirement, not ‘he the requirement S c, ciodersi. w. , show theaxtenUo which the downwind
• - • • •
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13529
Federal Register F Vol. 57. No. 74 1 Thursday,April 16. 1992 / Proposed Rules
a cndnt on upwind strut s State area madeljngrequlreuuint for attainment of the NAAQS Is due in
while fully meeting Its OWfl requirements nt 5S. November 1994.
assocla ed with Its classification.. Moderate and above multi-State : Carbon Monoxide
ozone nonattabunent areas must submit
9 Multl$tate.Ozone attainment demonstrations which use The 1990 CAAA create a new
.Arear . - . photochemlcal grid modeling (oi .. classification structure for co -
on 182 (j) defines a ‘muItI-State . eqiulvaleàt).ThIs section 182(JXI)(B) . . . - nonattalnmentàreas based on the
ozone nonaltalument area” as asingle requirement can be met through .‘ . . severity of the nonattatnment problem. -.
application of A approved modeling For each areaclassif led under this -
more than.oue Sat ect1on 152(j)(1) techniques for SIP revisions as . section, the attainment date shall be as..
(A) and (B) set certain reiiulrements Sara. . reGOmm ,wI II in the current version ol- expeditious as practicable, but no later ;..
sui 9fr(Irst, each State In a multi- .- ‘A’s ‘ CuIdellne on Air Quality Models ti ti date In the fOllOWIng table. The.
State ozone nonattalument area must . (Bevised TheUrbawA MaaelI?i classification schemi Is as followm
take .
the hnpl p tjie eouired e. : ebvdbreasj a,e. ___
•.N;
.
- ppm -
.-:. . -.
S
.IU.. ..114
..
S
.
..
..
UUUW.UIV ium ” -ia5uaw - As provided In part D subpart 3,
1JAAQS.The section Is silent Emission lnventorlá, rules for IIM.NSR-.
concenlng the tieting for suCh rules for reas with a design value
analysis. Hownvce , ons of the. . - greater than 1L7 ppm. and certain other. :::;
distinctidup between sectIon 182(b) and planning or control measures are
section 182 (c) Is that serious areas (for required wIthin 2 years after enactment
which grid models are required) are (November 15,1992) for both previously
given an extra year ( fl •• ane,destgnated nonat’hipent .
1994 Instead of November1990) to . areas. If a area’s boundaries are Y..
submit a SIP reflecting an atlelninailt
demonstration. ThIs Is In recognition af• subject to adJuetrum t under section.
the time required to gather data to 107(dX4XA)UY) (for serious CO areas).
final deslgàation may be promulgAted as.
: Zn1Sfidfllod1Ibt1 late is i4 monthi aIierenai tnien or
--uiu ofJectlon 19 -.
(b). (c), and (fl Implies that the March 1992—lust 8 mouths before major
requirement that miilt1 State modeat. .ndes (e.g.. l1M NSR) and the emission
areas - Im,entoiy must be bmitted. These
modeling effectively . VfP ul . fan nonattainment areas should not il ’
their adoption of rules or preparation of
(fross Noy ember199$ inventories while the boundary ’. . -
1094 ) .the t.a.llIn fOr thoderate multi- -
State areas to submit a si determinations are proceeding. Rather..
an at 1 ” ’ a tratioo . Stated A believes these areas should-bi .
differently, th, requirement for grid. . prepared to readilj dopt rules .and
modeling Imposed on multl .Stat. coin$ete their emission inventories for
moderate areas by section the entire MSA/C2 ,ISA.-shàld It be
supersedes the requirement to have the concluded thaj the nonattainment
November1993 SW transmittal contain boundaries will be the MSA/Q .!SA. The
an a” ” t 4imonstraUon. Instead. - A will niquire those submlttale..whlcli
for practical r.easone. lbs requirement are due by November 15,1993, to-.
Imposed by sectIon 182 (j) Implies - - - a4dress the entireiinuatth lnment area.
for a November1994 SIP revlsloi In addItlou4 the two claulflcatloits,
reflecting pkovisloca needed to attain some nonattalntna t area. do not 11.1 Into
the NAAQS as determined through a . the classification i là and are -
grid modelini analysis. - nonclasslfled areas. The CO section will
The effect of this interpretation of describe tha requirements for .11 areas
section 182(b) (c) and 6) Is that the - (moderate and serious end the special
liming for SIP submittal. In moderate.. classifications) in much the same wey’- ’
- inter -State no iat t alnment areas Is as the 1990 CMA aiscribes the.
- l enlical to that In serious requirements. The requirements are.
nonattainment areas. That Is, a SIP - - additive (La.. a serious area has to inee
revision providing fortS percent all moderate requhwentt and aU
reduction In VOC emissions 1rom1990 serious requirements. etc.).,
through i9 Is due by November1993.: Requirements disdiued (or mcderate
A second SIP revision containing areas will be repeated fir serious areas
necassary provisions to demonstrate only If the requirements are different.
9. 1 *4
Ou ...n 31.
‘O. 5 u$ a ’3i. -.
1 should hi taken to coordinate strategies
snonallainmant ere .!jsectlon. . . . - .. . -. md assumptions Ins modeled eea with
182(j)(1 Aj) . N . ilcUon 182(j) 1XB) : those In other, uearby modeled areas In _______
requires the States to usêpho order to ensure that cànslitent . plausible
grld modelingorgay other equa11y . - s • . ::
‘effectIVe ana1jucst$Iapptoye&by .’ ______tat.. Ia ibIthq - . - .
t &i defraat1aIn 1 s 1Ute . ____ aa’ ” ”ti-
EPA Is prey 6am area nourri touse pbotodiemlcal grId
approving any SiP revision submitted irtodel fodemonstrate thprulbeda
underthatsectlonlfaStatehasfailedto -‘- ‘-“ .-‘-
meet the above requirements. - .. -
A State within a multi-State ozOne
nonatlalnmnnt area that falls to proylde
a demonstration of alia(nn ant for that _____
State’s portion of the area is allowed by’
section 182(jflZ) to çtitfoñ EPA to.- -
determbte whether such State couId, . ___
have.demonstrated at*iihini.ntbut1qr ,
the.faflure Of one or ore States thi he’
area to.adequafelyImpfrment the - _____
reqtiured measures under secttou.182 for,
the gIven area. U EPA so finds, then the
ancdons provfslon. under section 179 -
hhafl not apply to.the State wbose
‘failure to make an adequate atfalnm .nt
demonstration wu’due to failure by._
“other States to Implement section 182.
measures.. -
Pursuant to section 182(J)(IXA). EPA ____
Is calling on each multi-State ozone ___
nonatteinment area to develop a joint’—
*wozkplan as evidence of early- -
ucooperatlon and Integration. The w rk ____
plan must Include a schedule for -
developing the emissions Inventories.
the 15 percent progress requirement SIP ____
rev ls lon( lf.pplfcab le ) .the3percentper
year progress requirement SIP revision
(If applicable). and the attainment.-
denl9nstr t1on for the entire multi-State --
area. Each State within aizurlti-Sfate -
ozone nonaftaIn nent area Is responsible
for meeting all the requirement. reltvaflt•
to the given area. -
Margiisl multi-State ozone
• nonat hii ,irnt areas are excluded from ____
:v àd ftj g photochemical grid -
modeIIng far submittalin attsinn ent
demoustrntIon by section 182(a)(4), -
which endudes any marginal area from
-the requirement to submit attaInment.
41%sfratione. tIThe EPA believes that
the section 182(aX4) exemption.
tanmede , the applicability of the multi.
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13530 Federal Register! Vol. 57. No. 74 / Thurday. April 16. 1992 I Proposed Rules
L Moderate Areas 12.7 ppm and Below emjssiiiisfo all óf their b e-year - . for these t/M
(a) Emission inve.uory. emissions inventoneg under the Act. programs are cpntalned In section
1B7(3111) requires moderate co areas to California should consult with EPA . 182(a)(2)(B). This section requires EM’ -
submit by November 15,1992, “a . - Region IX In determining which mobile.- to review, revise, update, and republish
comprehensive. accorate, c ent - model to use. The majority of the . - . .‘ in theFederal Register wIthin 1 year of
Inventory of actual emissions from all enhanc n nts In the revised model are.- enactment, the guidance for J/M
sources. as described In section . internal to the model and do not directly. programs required by the Act, taking
lfl(d113). ” Draft base year Inventories ‘ affect the use for base-year Inventory. . into considerati on the Admbilstrator’s ’ ’’
must be sübinltled between januaiy - ernlá lâó factorgeneratlon purposes. - Investigations and audits of snth ’
and May 1.1992. The in to l, is ;. -The reader should refer to EPA ’. . ‘. programs. In short the moderate areas
defined as the base year Inventory and - “ o Inventory Requfrements for -- must maintain existing J/M programs
Is a”cunlnt Inventory.” The EPA . CazbóriMonordde State Implementation -. and ache coxrectloná to those progran .
interprets the requirement that the 0010 ozmati on . .L - . :to meet existlngl/M pälicy when -
Inventory be “ ,, rto i be 1 The July .1991 gujAn w also.contains . irpdated policy Is published, these treat :
an Inventory for 1990 (year of . Information r Iated to some area and . .. ‘ .must submit revisions to addresl my’.’
enactment). The inventory Is to addiess off-hi way mobile source categories revised guidance’ ; , ‘
actual CO emissions during the that,may significantly affect how. . More speclflallly sldtioni82(a)(ZliB)
season for the area (generally the winter einlsIon are to be determined. For’ rejuIrei States to meet the basic JIM
months). All stationary point. area, - . these categories (railroads and aircraft),: - performaace..tandard-thIt ha beqn 1A
hlghway/nnnhlgbway mobile. ani ocs States must use the new.methodologr effect 1W t jièxforml àe ‘;
- sources (If any) are to be Included in the and dàelop new omission eslimates. - ‘sh .ndnvdls based on I nodel” program
compilition. - . The States will also be requlrçd to - :- ::de.jj, bansisting of a centralized
As one of the firit steps in developing - develop new 1990 bale-year 1nventorfes - progom that annually tests tailpipe
the base year Inventory, the state. are for highway mobile sources that a ’ccount’ emislians on all light-duty vehicles
to prepare an JPP. which là due finaf. for fleet turnover, road con jctJon -• using emission standards for 1981 and
form to EPA by October 1,1991. The IPP resulting In changes In VMT patterns,- later model v thl4 s of L2percent CO -
should lnclude,a brief statement of how and changes In speed limits. The new and ppm HC and 20 percent-
the State Intends to deve!pp, document, , , 1991 guIdance on MOBILELI and off-- strlnjncy for pre-198 vehicle .. A
• and submit Its Inventory. Another early, highway mobile sources guidance on . compHrn ce rate of 100 percent afld a
step In the Inventory development VhfF should be’&(Ittlted for additional’. *alver rate of zero percent are assumed.
pmcess is preparing the point source : detail. - : -- • . -: - - - - - -state. must Iemonstiat. arr’emlu lon - . - -
poklioncfthebaseyearInventoiy.•- ,.. TheEPAguldanceshbuldalsobe , redw tibnfarthel/Mp rogramIi cludid
Updated gui iàp ipaxing - - , , âonsultedforlnfarmatlon on how to --- - - In th Slhhat is at least as great as that”- -
emission Inientorles was Issued account for rule effectiveness when. - produced b v the niodeI ” basic program.
1991 hothver; the point source portion, ‘ alculatlrtg Omissions from stationary” - -(or the 1 wgram elrlhdy Inéluded In the - -
- Is essentially the same as It was foi the epurces of CO Rule effectiveness is a - SIP, *hlchever Is’greater). using the 7
- pput-1987 SW’s. Thus, States should ‘‘ measure of the ability of a’regulatory:’’. most aurent available version of EPA’. -
‘have already bljn gatherln data on program to achieve all the emission- ‘,mobile sonrch ‘ on model. The J/M
point source emission . . States - — ‘reductions that could be achieved by full programs are required In the urbanized
encouraged to submit the point source compk c, with the program by all - - area portions, as defined by the Bureau -
portion of th Inventory toEPAasearly sources atail tIm. , Forthepurpose of -- oftheCe sus, of the nonattainnient’
as possible. - . ‘ base-year Inventories under thei9gO ’ - - -area. . ‘‘‘ ‘ -
- States that have fully mple f’ ’ ’ CAAA, EPA will allow the use of an 80 ‘ The EPA expects to Issue the policy
- - -. - ‘ ‘thou % ‘ percent default value but will also give’ for I/M areas I the near future. Wheti
States the option to derlà local -. publlshod, the policy will itate the date -
- category-specific rule effectiveness - - when such programs are tO be
Iprep re a factors within some tightly prescribed “ Implemented. The EPA Intinds to iillow
guideline, discussedin the guI nce.’ • all areas ample tile to adopt and ; -
dai ’ to Finally, the reader should refer to eubàtlt required JIM prograi ta , Including
I In May,. section IJLR-6 for additional Information “J/M corrections under section 187(a)(4).-
Ion of . related ’to base year Invento*ies for - States that have both basic and..
- ‘ multi-State nonattaim ’ .ent areas. eivhenced J/M areas may,opt to -
otazoná, 4 ” ? By nIe I1ng the specific Inventory z --implement n) ’an ed programs in all
a t .raquIrem ats discussed above, the State effected urbanized areas. States which -
- abce’ - ‘- will also satisfy the geperal inventory are only required to Implement basic
the goals of thililoö CAKA. EPA requirements of section 172(c)(3). ” - programs must submit SIP revisions for
areas to prepare new (b) I/Mcorrectlora& Section IW(a)(4) I/M program addressing any revised
h vento r ies even if they ‘re uiree States with moderate CO policy. The guidance will cover the
nonattainment area. that already elements of the SIP revision.
- include JIM programs or that were - . As mandated by section 202(m). the
versfon of - required by the pre-1990 Act fo Include - Athnlnh,tiator will promulgate :
- -_ . 1 niobite source eniIssions’ I/Z fpnigrams In their SW’s, to submit to - regulations requiring manufacturers to
estiniatisu modeL In Julyieei. The EPA immediately upon enactment any - install dla nostlc systems on all new -
‘Injidated eis1on Is MOBILE4 .1. and It revisions necessary t6 rovide for a lighi-duty vehicles and light-duty trucks.
replace, end supersedes’ ifs predeci,sor. program no less stringent than that ‘ : The purpose of these systems is to
Statá.’except for Californls, are required prior to enactment or Identify and track emIssIons-related.
required to’u*e MOBILE4.i In - . - committed to in the S W in effect at the systems deterioration or malfunction.
determining highway thobile-source time of enactment, whiclfever Is more According to section 202(m)(3). within 2
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Federal REgister 1 Vol. 57, No. 74 / Thursday. April 16,1992 7 Proposed Rules 1353t
year3 of EPA. promulgating regulations by refiners or marketer. within the (2) Waivers. The statute provides for
requIrl g-States to do so. all States with . larger of the MSA/CMSA containing the a waiver from oxygenated gasoline
I/M programs must amend their SIP to - nonattainment area. These gasoline requirements under certain conditions
provide for inspection of these onboard content requirements apply during the - deathbed below: A waiver from the
diagnostics systems. The EPA will Issue time of the year determined by the oxygenated gasoline requirements may
revised E/M guidance which addresses Administrator to be when the area Is be granted to a State which ;
onboard diagnostic inspections. . prone to high ambient CO . demonstrates to EPA ’s sutisfaction that-
(c) Penodic inventoiy. According to concentration is arlypez1o4 an3,h using oxygenated gasoline would .• -
section 107(aX5). moderate CO ‘ be expected-to be no less than 4 thoiiths prevent or interfere with the attainment.
nonatIAI t areas are required to - The EPA Issued proposed guidance on by the area of a NAAQS or a State or
submit periodic Inventories starting by the length of-the control periods on July - local imblent air quality standard for
September39, 1995, and’ then evnzy 3 9,1991(50 FR 31151)..; - --. any air pollutant other than CO. A
years thereafter until the area Is - - - State may, at their option. Include waiver from the oxygenated gasoline -
- redeslinated In attalnthenL e pez odlc ,.. provisions for marketable oxygen requirement may similarly be granted
• Inventory 1.11 meet the iame .. .- - credits In their SIP revIsIoi s.Under such upon demonstration by the State to the’
requireineidi u the base year Invátcey. - a program, gasoline with a hlgb ’ • átlsfactlon Of EPA that mobllñowàs.
Additional guF”v , Is avillableon . . - oxygen content than required could -: of CO donotcontrlbuteslgitificantly to -.
- Inventory procedure. seb secffoz offset gasoline with alower OX3 CO . Z CO levels In th&area. Finally. EPA dzay
- -. : - -. eat thanrequlretTheEPAluued waIvifar1 eortheeffectivedatiof the.’
By meeting the sp uiflc periodic :1 - * - -propose4 uldeIines for such marketable. requ iterñent for o itedgildliu ie In- -.
Inventory requirements d d - oxygen redlt programs pa July 1991 a n yee spofl petition from
abo* theState *fll lire satisfy the - (50 FR 31154).. - - --- -. -. any person asserting thai therâ Iè n
- (d) Attain me nt demonstrailors No- required for an oxygenated gasoli e - oA 75 Vnated gasoline ora iuedate-
attainment deinonstrationis required for program. The State must demonstrate- additives necélsary tàiñerlthb .-
moderate CO areas vbei theCO design . that, beca seot rologicil- - - : re rement ,IfEPAfindl thls s itloâ -
value is below. -- -:. : nditious, a reduced period Will ensure - to ttue.To faáilhtate EPA review ‘il
- ( ) otedfuefr(1)Sclredlk’ that there will be no exceedance ofjbe 1 s as e d shoWd bed ,ns lpd -.
Sçctlop 211(m) requIres-that SIP--.: - CX) air quality standard butsId of such ___ in ti o tioa.u o -
revisions conl*Inhig oxyginsted fuel - - reducedperlod. The demonstration-: - another Petition. EP may nasin (5] y
requIreinepts be mItedtofl’Ato . -should Include cqnsld Ot1onbf - - - the Uve4ati f4Iiei iiement In i
- dqpled lorm by any Stain conhInI g - - meteorological conditions, peak petfodE.. g . j ej j 8 J - -
all c e ofa’ncàa v i tareaJot . , of CO?,mIseIon s , and blstóilcäl ambtent - -
COwitirade. ulueof45p th-or 4 - air qualitydats. Includlngpeak period. HJ S ic w*JveraV,ed on. ‘ -‘
above based en 1985 5nd 1989 data - -p.’ - of CO.coocentrations. The - - - - - - - -. - o1 or” -
SeAct alls W .demonsfratfon hoWd use - -.
t IA.. I i...J i i . A l I ________•. - - - -- - _-w . wo - - -
, - . -- pn i . .u..y fl9 - - - gasolinaor oxygen additives on --‘- ‘.
gasoline requ lrements-ln-certaln C D -‘: technlques.-: - . - - -- - - - - 41991-150 43503 5e -
-noan dreàsx 1thIn 2 ye reof- Pc areu ttI a design value of 9.5 cuss hi çónteiti’f such - -
enactment-Because section 211(m) is: . ppm or more as of No rember 15,1990 etiUs, 4 j , for, nd déclslins -
more detailed than-sect Ion 187(b) and - - baiedon-1988 and 1989 data, the - such “ tltfâns. as well as other - -
applies to a greaternumberof CD- - . - oxygenated gasoline requirements rnust i. Ictdr. - - - . - - -
noriatInInn .l! .ft areas, )he substantive. - - generally take bifect nolater than - re -- D) -- :- - --
.requlrements dfiection 211(m)-shOuld - - - November t-1992. For areas which have - “ ‘ - - - __
be followed Inpriparing SlPzevlslons :a design valueof 9.5 ppm or greater-for rar zei ients - 73 JP ,• . -
‘ti. j - i . k i e .... - .- - -e . . , . - - - nonet’ ‘ “ e ’ areas. i
vQIue .. . - ,, -- an, . -•• i- - vat -
accoidlng tithe most recent •. -- ‘ oxygenated gasoline requirements must - n na nrne ¼,areas - a - - - - .
- - - “ _ ‘ - i- - w12.7ppmarie$sm u st-
interpretauou mernoaoiogy isaueu oy - generauy.taap enect no Idler ‘ - - - - - - - -
• the Mlnltlretor prior to November15, November 1 of the third year after the PT0y i r ’ “ “ P O ” 5 DO
I - - ‘t i-i - thanNovemoer1S 1993.aueprO ens
- 1990, weaun is conrainee ID june18 1990 - seconu year Or we appu ewe -year - - . - - .
memorandum from William Laxton.. - - period. In both easei , the November-I - in W9 pLwIe ¶05 ucvlO
Thor.’tedudcal Support Division. to . date may k ege based either on A’s:. accom ce wlui we tequuv mefl .‘ -
the Regional Division Dlrectors.The i-s- determInation of when the azel is prone. . sections 172(c)(5) ?d 1 3 & e in 11 Jur:”
-. Statute provides that States with areas- lu high ambient ç iw s .itratiotia oL00-âr ;statioflall source w w r a. . -. - -.
-- having design values of 9.5 ppm or ’ - on an EPA determlnaliän to reduce the - mode SW areas ren la i,u awi w B
- above for any 2-year p. after 190,.-. - bontrol period baled on meteorological 100 tons er $earor w.u
- eg., 1000aM 1991. Iran 18 r iths after con d iuo as -. - - - . .- - not have anapproved pa1t - - .
- such Z-ye rperlod or deslgnatlen as - — - - ..- - Ilequirements f ) enated gam ine permitting program nuu a iite ww ,.es
nonaIi lninent. whlchev r is later. ti - l-iced nOt apply to the attalnmentarea to I ssue a permit for. major stationary
submit a SIP r vls1oi meeting the - - ‘oulside of the Q4SA or MSA. However. soutce or major modification In suna
requIrem ts off this section. - - - - - oxygenated gasoline requirements shall - area during rae Interim period. the StatE
: . Th. revision -n iustrequlre that anp - - .continue-to apply for nonattalninent permit should tiomply with the - -.
gasoline u td.o disperiseaby - areas that EPA redesignated as -requirements In40 CFR part 51.-- •
and wholesale pu nba ers/conswn 5 Ia. attainment. to the exient needed to appendix S until ew NSR provls iofls-
nonaltainment area must conIa’ not maintain thi, CO standard. The revision are in effect. - - - -
- lees thurZJ percent otygen y weighL ahaU cover gnsólIne offered for-sale or - (gi B ump -vp req uiremenLs. According
WIllS ncbntent reiuiréthent will - -iupp ly. dispensed. transported. or to section 186(bUZ). moderate CO - -
o apply to gasoline Kold or d1sj ensed - Introduced Into commerce. -- - - nonattarninent areas that fad to attain -
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Federal Register I VoL 57, No. 74 / Thursday. April 16, 1992 / Proposed Rules
the standard must be reclassthed to ‘ attainmeaL The first annual report Is These provisions require conthgen
serious and are then subject to the - due September 1091 and should be measures to be Implemented In the
serious area requirements. Thia - ‘.;• accompanied by updated forecasts of event that an area fails to attain by the
redarelfication process is referred teas-. 1994 and all subsequent years up to the applicable attainment date. All
Nbump.up.w The EPA must determine attainment year.. . .. contingency measures for CO areas with
withIn 6 months after tb ’at Ah .t Animal reports must contain annual design values above .12.7 ppm must be
date whether an area has attained the ’ updates of the VI ff forecasts and must, adopted and enforceable and submitted
NAAQS for CO. The determination of discuss the extent to Which such - to EPA by November15, 1992, as set by
attainment will be based on the design . forecasts proved to be accurats. iese 1 - EPA under section 172(b). ThIs Is the
‘va!uefortbeereauoftheatiiihm ,enl :.repofljjnustaleocofltaffle.tjmatesof .-:datebywhjcbtheStatemustsubmkto ’
date. In maldng this determination, EPA- actual vehlde miles traveled In each ‘- ‘ EPA thi CO SIP with demonstrations of
will vs the post recently available,. - “: Lyear for,whlch a forecast was required. ‘attnlni . .eijt for moderate areas having a
quality-assured air quality data covc Lig ” Recognising thata certOin amount of: desip value at or above 12.Z ppm.
the apprcpdate 2 .year period up to and/: statistical arIabll1ty Is present in the1 These contingency requirements for
Ipcludfng the &tt I.m.P!tt date.UEPA VIfTesImatlonpiocess,EPA dlieves ::.. -
determines that an area humet.. ..‘ z’ -, It Is apyrupiiate to allow a margin of requirements ce’nt Ined1n the 1982
__ __
. cparat lcnoflaw.As specified W . overtlme4o a tfor ’ ’ts’ .-.. The I990CMA donot specify bow
‘sectionll(l), lb. Mml tr*torma,. ... , on ogles.’ •. - - many oonrt . neiion measures are needed
adjust sq applicable deadlines (other. ,,, Consequently; EPA will allow as.:... •‘ or the “ agrAd , of . “aion reductions’.
• thaithsa!1Dh 1 . . ltdate) wheresuch percent margin of error for Vhfl ” ‘ (or fTrednctiôns) the mu tprov1dea”
;deadllnes are shown to beinfeuThIL - . comparisons made hr 1094 a 4 pakoent’ ‘ Tb ‘EPA bell ‘that forserl
provid in , 180(a)(4),up - margin ma e, noqattajument areas, a logical
two 1-year extensions of the ati Inment . ,. and a3 per nt margin for ccithparlsons’ •‘ measure for failure to attain
• date can be granted for an area If ths; , -, made in comparisons ‘made in 199l 1996 1w the.att Inrnent date wàuld be the’
‘Statahasmetaflappliceble .‘ . . , . andlateryear&&tsinceeathrevfsed
I- t-. 1. , k. • - a..op o a en or a’
I ’.4 W IW COfl ..uiru &u • £YL u1 .*,MzCS I W V VU .MUO M W .j tent I
Imp? rn.&ntlon plan. and If the NMQS triggering contingency measures, the’ 15 CY iiCOfl °
‘hisbeen xceedednomorothanoDce., aappficaticnofamarglnoferrorevery’ - a -
year e , measure
have reached átin4 .u eit.Becausê EPA. braease without bouñd,’wlthout Over’ .
.wfll bekeviewbig ayallabW data to -- . - -‘ triggering conllngeñcleà. ’To ivold thi, ‘ uu Ofl m
;;.J ._... . . ,• , .... - - 1A . . ,. areas to a
- u i ww uwau w.c ii 5 wa, ‘ OO iIflCO, i’j j
Slati should submit Its appllcatlá fôr :,app ato to ifailt di ülativeVMT’’; - ,... .
k this extension as soon as y• ,‘growth to no more than 5 percent abov 0,,. a
: air qualify data are ava1IabI , the Vlfr orecast used as the basis for
- - - . . ‘ ‘‘ - •. race. re - - pru sa or
;.4 ‘..._.. I — £ , we area s a en. u w uOfl, ‘ .i , t f l . .. . L.. .1.
I1 fWV J “ .. ‘Ifestlmatëd ictual VMToran ‘ ‘ - ‘ 51C 55 waia u w O .iuau uy wO
“Unless otherwise uot à ,èflmódirate udated’forecasfex eds the ntost’ ‘apafmnent ’date 8nd for all areas that’
f areas above 12.7 ppm shall théet thosO. -recent prior forecast by rnore’than the ‘ exceed a VMrforecast ,States may
- equhenzents applicable to moderate. “ irargin of error allowed f uiar’: select c.,.aL 1 g iiicy easures for the”
‘areas below 12.7 ppm ,aa well as the ; year,’and/o If esthnated act ial Vtff or ‘ m11oir of CO emissions.
-follow1ng requirements. • “. forecasted V)rr exceedt the cumulative - The A’be 11eVe 5 that fo
(a) V2I1Tforacas SectiOn ‘: 5 percent cap above the attainnient - ‘: ‘of a Vhfl forecast, one appropriate
187(aX2XA) requires that StatOs Include demonstration forecast. coutjngenc*: “. ‘choice of contingencyineasures would
‘; a forecast of VMT fareach year befall ‘- ‘measures-will be triggered in the”. : be to provide for the Implementation of
a*atlpIflDflt yea in the SlPzevis ión .“nonass Miv .ejrtaree. These contingency ‘sufficient VP.ff reductions or emissions’
E! mUbmifted to byNovernber’’ measuree re tobe ad led d .,.: counteract the effect oft
199iádereeótion 187(a)(7)41i0 SiP ‘ “ ‘- enforceable in the SIP. -‘ year’s growthin VM1’whlle the State -
‘ i8vIsIoirmust provide for annual ‘ - (b)Q ntfngency neasures. 6ectio ’.’ revised It. SIP (Including ncr
‘npdates of the forecasts and ‘annuOl ‘‘ 187(aX3) requires areas wlthdeslgn” projection.) to provide for attainment by
1 reports on th, extent to which the ‘ - “ values above 12.7 ppm to mplmw .I .t - ‘the applicable date. These theasures
;forecaste.weru accurate, as well as “ -‘ ‘ccnthrgency .measuresifanyestimate of’ may offset either the .excess V? T In the
jestImates of actual VMT in each yeer actual Vhfr in the nonattalnment arel.’ Dofla ilMiIt1e8,,O? the addltloiralCQ’
$fotwblcha forecast was red Th.’ ” 0 , Ony updated forem ofVI cr’-’ ‘:‘ emissions lathe area that are,
fo ,recast and ieportlng requirement’ - .‘ contained In an annual repdrtlar a y ‘ : attributable to the addiflonal VMI ’. ‘‘
pplieUo achCO nonat’ In”c.nt are, year prior to attainment excçedi the - - ‘850cc ‘A will require he State to -
ImvIpg a design value abóvb 12.7 ppm at’ number predicted fq the most recent ’ revise Iti SIP within year of finding
Ihe time of Its classification. States “ VhlTforecast’Contlngency iaeasures :1: thaI VIiff levels are exc eding fOrecasts
th4 foIlow guidance on VMT must also be Implemented If the iree - . : sid&. g the tolerance’dlsc0csed
forecasthrgto be Issued shortly. • . ‘ fails to attain the NAAQS for CO by the’ earlier the contingency measures should
t rs% otforet.sts Is due with- -attainment date, unless It Is grOnted an’ be capable of reducing fliT or resultant
revjsIo,Sebeiquent forecast. i -“- extensIon. For CO area with deslgti ‘ e nIasIons by an amount equal to the
em tobe- L 1u-iLto EPMogether with valueial or below 12.7 ppm.’ -. projected annual growth rate for fliT.’ -
aI first forecast’ yçer -; contingency measures are-needed to - “In otherwords. if VMT Is expected to
-ihouid b -withi es Ithe first - —‘ satisfy, the ptovlslons under section’ - Increase at a rate of 2 percent per year,
— lolimeast yam) and should Include all . 172(c)(9) and are due by November15.’ the contingency n easuree under this
sUbsequent year. up to the year of - 1993. as set by EPA under sectIon 172(b). alternative should be capable of
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- . -. .
- Federal Register/ VOL 57. No 74/ Thursday. Aprt1O 1902/ Proposed Rules - 533
rddudag future flit (or offsetting flit EPA guidance. The guidance will covet, required. Contingency measures.
growth)byzpercent ‘. ... tbee I e ”tsoftheS lR . . . developed lnaocordaocew lth,ectlon
Asdiscusse4above Iorozone areas. Ifamoderate nonatta m’ataxea fails 1a7(a113)(see ‘2(bfl.must be
PA interprets the requirement for . to attain the CO standard by December Implemented If either the annual -
ntingenq measures to ‘lake effect ‘: 31. 1995. and Is reclassified to serious. . estimates of actual VMtoranyuew ‘
without further action by the State or ‘.neiihw.d JIM pw m must be ::. VhfF fore asla exceeds the earlier
the AdmInistrator to mean that no - •. ImpIc v cnted If the area meets lb! . forecasts Included In the State pian. -
further rulemaking activities by the - population criterion (urbanized area.. êonsidedng the tolerance disaissed
Slate or EPA would be needed to population. as defined by the above. The first *mnl report. for CO
-implement the measures. Certain ‘ Bureas. of 2110J)OO or more).The EPA. - areas (with design values above 12,7
actions auth as notification of sources. will, under section 182(1). requIre SIPS - ppm) must be submitted to EPA withIn 9
modification of permit.. etc.. *oul4 revision. to provide Loran months after the But full àlendar year
probably be needed before a measure. JIM withIn 2 years of -. after the al& v .u4 demonstration Ia
amid be Implemented effectively. Stiie - fedesignatlon or reclassIficatIon. (I.e.. the report. must be submitted
mustabowthaltheIrcoutl gency ‘ : A . .ml tedbyiectloá 2(m3.lb.
measures con be Implemented with M’ 4.tratcr wil1 promulgate i ”.. a contain esllmatós cladual V).ff in the
• minimal furtbei adieu on their part and regulations requiring mausfadiners to ‘ previous year. forecast . cfVMTi -’..
with no additional rulemaking adions Instafl diagnostic systems c all new’ . fl ture years. a d vedflca!loW thit-
• (c)Spedaliv!a on TCM’zfor Deni at. light.duty vehicles and I%bt.duty truths. Us g y mee us are being
The requirements of section 182(a)(2)(B) The prmpo.e of these systems Is to. .,. 1 1th. nctimivMr ‘. -
hove the sama 3SCt as ‘ i ” •. ‘ -‘41fy and the sions elate! - esthdates for the twevioni yeér or any
102(dJ(1XA) and 117(bXZ ). 4L 1 ed • “systems deterioration a “ ' “‘ “w1lon. ff f ij fnj any year until
below In sectionm Re(b) 1101’s According to s c’ ’ mX3 ) .withIn2 the at”'”i year exceed any earlier
equivalent to omne11 f4 •• years of EPA ’. p.om ’ Ig tIng regulationi’ lorecast . in the State The reports -
Readers are referred to that disesulon . reqnfrlng States to do so, all States ivith . must also show that
for a desalpilon c i this requirement - JIM program. must their S W tO slrsLe u are being Imp)em .’nled as
(d) Enhancedl/M Section 1W(a)(8) provide for kispecfion of theseonboard projected to the plan. 11rn EPA wants t
requires moderate or above CO - dlugpigatlca systems. The EPAwIU bsue j j i b, ensure that ..
uona” ” ” ’e ”t areas with a d 4g value revised IJM giLl Whish 4dri ,e . - friecaiti are coülstthrt WIIIIVMT
greater than IL? ppm to pl’ .i -. onboazd diagnostic Inspections . - . esUmatu. Furthermore, a sirtoos CO.
“ “'“ed IIM pr ams In abanirad - (e) ifwM d stmlkn- SecHon . , -
areas within the nonattalnerent areas.- 181(a)(7), Demonstration - -- b3? MUd :;
•udeflnedbythellureancfCensus,,; -ane I s s ion ar elntfrn lnem ln loniofCO -
1th 1980 populations of RX 900 or I - Reilwl 4 a ns.” epplie . $0 CO to the total of the s ecIflc . - -
.mors The section requIres that the plan - nonattalnment areas with adesI i vaha. ru reductions required by
I the requirement. of section - greater thani22 ppmst the time of - - - - - - -
cX3 ) .a$dlarsnsedlnthesedlouto das lanAdemonstra . - ‘ rr .i tjá
preamble concerning enhanced 1I’M a” nn ’a ”lsveqarired y - IS, __ ______ -
• In serious and above-ozone- 1992. and can be met through - -. - vairie tar thin 122
nonattainment areas. application of. modeling analysis, - - . - -
In some cases , areas may have - followIng the gublanre 0 r ’itaki.il In EPA P” ' ’
become newly sublect.to both basic and “Guideline on Air Quality Model . In
. i4 .nv ’ced JIM requirement. at the time (Revised).” - - - . 0iw u - -
of enactment, with the basic JIM - The attAli__4A. .nnn.tradoa must a -. - -
• requirements due shortly prior to the’ Include a SIP control strategy. which Is - 3. SerIous Area. - - - .. - - - - - - -
deiiAll . . , for submioslon of the SW also due by November 13, 1992. The SIP. - .. .. - -.
revision providing for the enhanced I/M control strategy for a given — t .± ’ Z f or - -
program. In such cases, EPA regards nOnat ”44 area must be designed to j’ ’ ’ “ • “
liA ’ 1 sha i __ .L e ek k ,. . . .m .1fl. WU5 w A -
V’ 1f &J6WI I (iA MiU sa . ..WS U iI W I - which staHrn1r y sources contribute -
‘ superseding the basic JIM requirement., annual emission redadLila “ “ “ary ia i . rv i determ lned -- -
and therefore will not require the for readhin! . ttaInm nt by the deadline. ‘ ‘O’ , , ‘
- I ’mIni ofthebas ‘ acooi wigto ay
_ m SedionIW(aX2) -
SIP revisions to provide Sr an enhanced nouatfnlniii.M area withde 1gn aInes tO• . .
- i a.. e’ i. ...i - 1. e • D lrectdr.),sSW
Program wiww 2 yeorew areas - awve ppm w •iMi.w . y.—.. , 4 - ‘ .5. • that the *
newly jectto.i hamoedI/M - ‘coäta1nfárecasts 5 ofVhfFforeath “ '“ ‘ ‘
uequirement. ha the future asa result c i’ year before the year In which the plan - - “‘°* UtatiOWI OW , has -
- redesiguatlon or redaulficatlon. projects a” ' t ’” ” ' ’ Subsequently, the. .. .- ‘Y sta’ t n’’y 5O?Sw.t . .awu . or -. -
SIP. for . nhatu .d JIM program. States must submit mnnaaI updates - - poten ... to u... ...... per year
dual. . moreo -
the vent that EPA’s onianr j JIM acemate the previous forecast. roved ma by EPA or -
w P- ’z -“e”dard Is not e4 to be. The reports coM ’ .I’ g - then “major statIouazy owcs
pi vida .int d time - estimate, of Vhf must be PVOOPIOd any atatirnary source inst emits or
biiflISIP development EPA will use- each year In which a forecast wss - the potential So emit 100 toes per year or
anthonty sn4l r a t1on I1O(kU4) to. ______ : . - more of CO. - . -
fly eppr l SIP aubmiuals - • ‘ . — it. (b) -1 %rs .qwiraknl to severe ozone. -
iittlng to adopt ceahIs.. - . .. v r j TCWa. Serious CO arees(wiu,Denvet.
iced tIM srama consistent with. T , ickIa ” ’ ” - - - Colorado) must adopt and bnpivmcnt
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• •‘ -: -.-,.: J• •- ;‘ •: :-‘ ‘..
:1353a’-Feda a]R gisterJ VoE. 57.
-------
Federal Register j? VoL 7. No. 741 Thursday April i0 1902 I Proposed Rules - 13535
The backstop’ measures required EPA describes areu as “not daulller . nonattainment area from the NS a.
under cbndltlon 4 must be submitted If they were designated bonattalnment requirements Is not allowed by the Act.
with the tam attainment demoostmtlon .both prior to enactment and (pursuant to Fwthennore. the new NSR pr wm Is
in fUlly adopted form. The ‘backstop’ section 107(d)(1)(C) at enactment, aa4 If ne ci the Acts major bUlwarks for
measures must be de’%n.d là go into they did not violate the primary NAAQS preveàtlng further deterioration of the’-
effect automatically one schedule for ) In either year for the 2-year Nato. air quathy Therefore. an..
suffidsutto achieve all of the reductions period 3966 through tam.- -. - nonat t nlnm.nt areas, Indudir.g flot-
Identified with each loog4ezm measure Although It seems dear that-tm a)- dassI ed ” areas, are tequired to adopt
for each year through the aftalnne spedflc requirements of subpart Sof . NSR programs meeting the requirements
year. The “backstop” measures may past D do not apply to CC) “flot...- ci section 173, as amended. .-
. .soot broad. acrou4he .boaId. daseIfie areas, the 1990 CAAA are (6) MonItorir Section 172(b) and (c)
red Ø” ’ In emissions, rather than . ellent as to how the requirements ci: explldtly states that nons m.nt.,
thoroughly analyzed nd developed. subpart 1 otpart D. which contains -areu sbould meet she “applicable”
control measures For this season . EPA - ‘. b ] pl..mlng reqvIre e ib for -. mooltosIng ráqukementa ofeectien.
• does not antlaipate the actual all dedgiiated Uainment areas,. 11O(aX2). ., . •.
Implementation of”back.toD”meamkes should be preted for such CO areas. . .‘
in most cases , as States will have ample because these areas Coathigenq measure. are not required
cppOrtimi tO SUbmit designated nqnat’ ” '”t. some aspects for”not dassifled” areas In light of the
IflCOIpOtSthI9 the My developed loot of subpart 1 nro ssarPy appIy The EPA faãt thatmodenata areas with a ‘ t”ig
• term measures arid deleting the.. . lirterprets the requirements rmder value lees than 127 ppm ers exempt
“baóop iessures from the SW - . 172 ( C ) for these areas below. - trcmthe c ontlngency “ vres.
AddI& .Ily, Ifs lozigerm measure Appllcsble revisions to the SiPare dueS requliemenl. . ...
cannot bedevelcped, then the Stats has de.ignifton under section • !OteSIbJ
the cplioa to submit a SiP revision • ‘ 1O (d) (see 56 PR 56694). - JJled”creas. Section I7Z(a)(Z) ’
Identif4 develoPed d .. (1) MQI Reasonably avnll’hle requires an atbinut data of no later
live mçaswe to replace conb j masemes ‘ “ 5 fr an area’s designation’.
the original lang-term measure pdor.to needing to achieve aif lnment .&canse . For areas designatea
any necessary Implementation Of. . tcRed” may be already aonauaInnten t ”r section
“badcstcp” measures. . . aP ””ig or are presumably very near 1C7(d)(IXCJU)fpre.euzacthmnt
Thus, a State may find that prcgre .s ‘ap.h ”. the EPA believes that . nonat’ ” ’4 areas), the a*f ih m.nt
an be achieved r ith measures tbM ‘ ‘ RACM controls beyond what. -date Is Noivember 15,1995. For newly -.
fullydevelopedbythe l 992S lP ‘ . - niayaheadyberequlredbiths$lPere detedareas,tht’ ” '’date
submittal date. Lfowever riot neoe. .alyto achieve ett t t and’, will be 5 y frd of
4etesmlns that expeditious attainnidut. ______________
of the MAAQS Is Im oi Ible imIe -. a1etherefot noirequhud. - -- Iha
‘p alSO which. - (2)AStabzment . ‘SNU that fail t o p In In S years, EPA’ -.
puinotbe fully developed iintllafter the. 187(aX7J spedflc* derate is Cr I of(be
J92SIPIsdue.lnItoig9aSIP submLttaI, at isw lth slessthanl2.T fu O ” ’ :. --
the State must dearly describe each of PP from re4isldng an aft*Inm ,lt . . - uanaru tans to attains years
- these long-term and show that demonstration. Because these moderate from dàlguaUcsi. the area Is bumped up -
each measure cannot be fully developed areaS are exempt from this requirement. to moderate If the area’s deet ’ value Is -
andadoptedimtilaspecffiedfuture . - Itwoulds unreasonabletosubject atleast0.lppre. ‘ . ... - . - . -
thlrrequ lrement to an area that was not (2) lEan area falls to attainS years ‘-
- date. despfte - violating the standard. Therefore. EPA - bum il.iIgn H in the area retains Its
Implementation effart&The iam SIP _____
must Include with each long-term - will presume that the existing 5fl). — daislfied ” status, but EPA will.
measuró eq enforceable .diwhrle, - --- . - requirements and any existing and llgbtan Sub art 1 requkemesds.Thls
. bb&ng res ions bte agencies to achieve Mini Federal requhem nts (e.g.. the could hirtnAe a showing of enforceable
Identfled emissions reductions from, title 11 rules) will be to provide rules or possibly a basic I/Mprogram.
each measure. . . . - - for a ” ” ”’ nt In these areas. - ic) “Not r”s’fied’?a)oxeas. - . -
Along with these provisions. the -. (3) RFP. AREP requirement Usumes a Violations ar detelidned by the -
State’s 1992 SW submittal must Include long rionatta t ” ' ” ’t period. The fact that number of nonoverlapplug exceedancis
“backitop” measures. “bcI a “not ffi d ” area Is already In or; -greater than or equal to 9.5 ppm during
measures must be fully adopted - sear atta ment obviates the need for an the 2-year period 1988-1989. If the-
scheduled for Implementation to achieve reqolie - - nUmber of exceedancet In either year” “-‘
• - reductions equivalent tuthàee assigned - (4) Emlukas Invintory. Al emisilcus wasgreater than orequal tot, the ara
each year by the lo*g-term measures.:. Inventory !s specifically. required under. Is viclatjng the CO NAAQS. -
When each lon terin measure Is fully ’. ibis se on and Is not t1 d to an area’s ‘ :once It hai been established that the
developed, It must be sobudtted to EPA -P’ ” Moreover, even • area Is violatlig the standard. the -
ass SIP amendment. This amendment If these e. ’ already attaining or ., t secoa4hlghe.t . nonovez1appIbg -
, would also propose deletion of the near at’•”ent. they will need such an “ measured value over the 2-yeat
associated “bedcstops.” The EPA’. - - Inventosy to develop an SPprDIJabIe period I. the design valuefor the ares.
- approval o&tbe tang-term measures - maintenance plan under section 175A.: fle deslgzi v alu. determines ‘
wwitd I ce!Idn ’ ti e Sw, die’ . Theceforej an emIssIons-Inventory must clas Iflcatioñ. A CO arsu cannot be
“backstep’meassres. - - be included In the SIP revinion dueS c)as fl d submarginal because a design
______ years from designation. - - va!. —f.<9 .5 ppm Is not violating the
‘ ‘ ° _____ -. - - (5) NSA. Like the emissions Inventory - stenc ard (Le.there are less Than tWo
‘ A aa - - - - - requirement. the NSR requirement Is not excUedances In each of tlie 2 years). and
Ceraenil’Nonclgssifiabte CX) areas tied tä anarea’s proximity to -- . - - ‘ ‘t area can osdy be subs glnal If ill.
it of “flat classified areas. Th. attainment. end therefore exempting a - violating the etandird. - -
-------
: =
13536 ‘ ; ‘V d 1.Registez .I.VoL57,Nó. 74 ! rhursda 1 pril.i8, iögz’l Proposed Rules
. , , . - -. . . . •‘.
• 1)Reqzthumente.11ieCOireas- - ‘ (3)Faih,retoottcin. -2fa! ’ nót. d ¶ ,. demoistrat atIflhnt.an$t*nwn ,,
,*ermed “not claálfled ” are inalogous to c us “area blabs thwNAAQS at .e:demoosfration must meet the
omne trauftional ara bs. The amended - some time In the future.ilten ft will be : equhements In selion197(aJ( Ref
• Act does not provide guidance In. - dabsifled In accordance with Table 3, - io section 1ILB- .(e ) for
subpartS for CO area, that fall Intà the section 188(i). Upcodasslflèätbon , the developing attainment
“not d .tffied ’ category. However, all . area will continue to be subject to the Note that moderate multi-State CO
nonattalnment areas, Including “not. •• tequkements under subpart land those nàattj.Imn nt areas with a i
‘dassifled” areas, are subject to leveral •spedficprovlslons under sub art8 - dl2i ppm or lower at thel
of ike requirements hr subpart lof the ‘.appropriate to the classification that -. . . . - dasslflcatioif arc not -
Act as dlsons ed above. Spedfically , would have applied to the area had ft the requirement oft
ectkinl72(b) requires a SIP aevfsloá been so i 4 z. *Ified at the thne of the ‘atta lnjne pt demons
wfthtn 3 years C(deaIgnätIOILTheSW notice under section 18e(aXZ)Alnder . .- 107(a) excludes all.
revision must meet several: , . - ‘sectIon 187(1 ), the ftJmhiktrator may -. requirement for attainment
sequkements, In particular, NSR. :‘ adjust any applicable deadline. (other démonska1Io
lfaSteteaubmltsareque.tfor . ;‘ thanatfidnm ntdate .)IfthedemiHnes ,
redesignation to attainment, thena are shown to be Infe as1ble. d .;. .: j i a5i v&w
erandadequkmaIntenanceplan 1 , , .
as defined in section 175A , Is required. “ ‘? ‘ “‘ - SectIou 1b7(c)(i) airs br me-
The Mmlnktrator announced In the - -Section 187(e) defines a “multi-State issue vulaøu ’wiii an l
Novembà 0,1991 Federal Register those CO nonattainment area’’as a sbIgie 1 0. iules for determining L therçtaftânaxy
CO nonattiImn nt areas that did not nonattainment area that covers more ‘lources contribute significantly bCO
violate the NAAQS during the 2tmanth than one State. SectIoñlO7(e) .Iso,, levels In an area. In She case qf a sb$oua
period between January 1.1988 and establishes certain requirements for tati a sources ;
December 31,1989. For such areas, the. such areas. First. each State In a multi- at m t lignifloantly to CO £evels
requirements undersubpart 3 o not-. State CO nonattainmentarea must talce section IA?fcWll wpmilripu the Statato
PPtY. : • all reasonable steps to coordinate both revise the W nhior of major staHnnaty
Inordertoberedesignatedto theSlPrevlslonsrequ lredandthe - I n t hat.to indudeanv -
aftalrrment, a “not dAm tfled ” areamust Implementation of SIP’s that apply Inihe ‘ b aa the
ocwnenta on to support . . given nonattainment area. Section 187(e) - .. .mit. mm ‘ “ “'““cc - - -
conclusion that the five redeslgnatlon. also prevents EPA from ap v1ng.any - .‘ . - . .. :,•
iequken entaofsectIcn1w(d)(3)(E) -. SIPrcvIMonsubmIftedunde thIs q • - a . ta!_ ë’
have been metl’or a discussion of the -section tie Stite has [ ailed on . - •.
i ar . - i$ gn lflcant-CO stationary source area Is
. cUI ons qwzw wr - - aoove reourrements.’ •
• , . .1_i -a.,., . -. .- ,. , -. ‘ . avanaure in an nr,t m
a o ?““ “ .w oiw uii ‘: - a-wauy, .c uuu £w%en J alLOWS a • _,. - -
- : ivaa y -
:nnder section HLH5 of this notice. 4emonstratlon of atthimnent for that r, - upport -.
(2) NS& B November 15,1093 all - State’s portion of a niulIl-State 00- -. - - - rU iss ul ance m nJn
such ‘ hot classified” are?. must submit nonattalnment area to petition EPAtb - . . llI7 w..aw., 0 -, . -
-rules to Implement the newpart D NSR make a finding that uch State àould- - -
permlt’rçqulrernentsofsiGtfdns i7*X5) have demonstrat d atiA1nm mt. but f u 8 n , mC 9 , It S -
and 173 iof tbei99O CAM. In the -., the failure of one or more thei States In 80(1 IYOS Ii wO US
flieantlme, all existing NSR rules will - •. the area to adequately implement- - ‘
remain In effect If the area does not . measuree required undet iectloi 187 for - m s uon!I y UULUIL UI,W 1 UU
have an approired partD NSP permitting the lven area. If EPA mi fra such a U w ,uat
program and a Statewishes to,liañe a finding , then the ianctkins provlsl ns - OTau u a! aOI Ifl8 au a& .. .-.
permit for a major stationary source or .‘ under section 179 for fallurelo make ah -7. Culdance on Walvets for Moblle
majormodlflcaUoftlns ichareadur lng - adequateatt s lmn a ’nt demonstration - - Source Measures -. - . — -,
the Interim period, the State pennittiug shall not appiy to the State a arded the - - . - -. - - -- --
program should comply with the fl ng - . - , . - - e ai er ProvisiOns r i se on
requirements In 40 CFR pan 51, - Pásuant to section 187(e)(1), EPA is 187(cX2) provide the Mimnlieuutor W i
appendix S until the new part D NSR - callingon each multl-StdtC CC) ” : - dlscretionar r authority to waive certain
requirements becomeeffeátlve.’ 4 - nonattainnient area to develop a ‘mobile source requirements I i oth. -
-: - -_ - work plan as evidence of early - - - uid uerj,ous ( ) no anarnment
- - - - 1 . . . . .., . - areas ere mo ue sources o not -
“us “hut dIUWad ”US&bSs not esimaled coopera on an iwegrauon. aue WYL , i i - -
vIolatloes y Si is9i. dod Is In the - plan must Indude a schedule for - - siucenuy
°P ° 5• mSI ’ plen P - developing the enzIss1on Inventories, . the area. Specifically, the Mmlnlstrator
-ssc&ol7SA. thea ‘A may nut lequire . - , , . , , . , ,, .. ay On S case-by case basis waive any.
esns ’ ’—”——’ N miss. Hoivev these areas - lU VI I L WI bU IOi U MI 1110 U1( IUUWI1I ‘“nukements th°t n iriiif to - -
,ccutinus to appiy raistjng tarn p m •‘diemonstradon for theentire multi-State ‘ -
crcompI wltb the NSR pe mIttthg reqWre eots of - area. Each State within a multi-State CO transportation contross. IILVI. or ‘ -
IIeat5L - w SPtI Wf11 1 4fuhtION. nonattalñment area Is resnonsible for -‘oxygenated fuels where the -. •
earsssaiss ad tand be prepared to -- ii L ;Admlnistrator determines by rule that
1—’ that satisfies mee a.. . ..e req . men .. aoaeVafli .0 -mobile source contribution Is -
.. 5 L. ._ ..ancIpUtCalld - ‘ the given area. - . i .s - - -
Areas thsuld - Ir order lobe sufficient to avoid a ‘ - convw ..ing.y uemona -
- eddoo tanodar the pert C section 187(e)(2 1 finrilna of failure to - - . insignificant In relation to t ie cau e of,
thut new sou do nctcaase . - - - - - . - , ‘,the area’s overall CO robt iii ’rh ‘A’
In p ’4hdani levels that . . - - - - ‘ - - will only consider orontino a waiver
woeld inks lbs atp. out ofoompilanos. if the area Is .ensyiorpo,a a om .trirction ban peleared toi ct1cn -- t ‘-- ‘ -
fawnS tabs out im Jt .i ’ne and the statutory - - I13(aJ 5) until .oth time as th.stes adopts a$n 0 ‘ IlUim coptrone On fliOuue sources
deadlines for adaptIng amended part Dpermltthe’ - , ra sm utlsf lug the paa, - .. - - under section 187(c)(2) If It Is dear that
- tsotInquesunouravepuse 1 c - . - . - --- . enobilesourcesin the aggregatedonot
-------
• Federal RegIster!. VoL 57. No. 74 . Thursday. April 16. 1992 1 Proposd..
• — — . - . -
contriteate significantly to the CO PM-tO NAAQS by this attainment date:- only be made after pzlwiding notice In t
• nonattainment probknr. and there Is a or foliowlng the passage of the’ . the l’.deral RegIster and an opportwlfty.’.
SIP submittal demo ting attainment, applicable moderate area a 11ent . for public ““enicnthe basis for-
oItheCONAQSbythereq eddata dat EPAdeteràdaeethe abas .EP4 sproporeddecIajon.-
thout such mobfle source controls. . Jailed to attain (see lection lea(b)). -. .. The EPA does not believe the;- --
This would be In addition to a showing ;. For those areas which were - . ,- rádasslfylng moderate areasàiàlous
under section t8 (c)(3) pertaining to- designated nonattainment upon : ai any lime EPA determine. that a area
stationary soercoi that “contzibute . •‘ nac”'”t of the 1990 CAAA by cannot practicably attain the standard.
sig IRr ntly to carbon monoxide levels operation at lau . where EPA determines by the applicable attatntvwnitdate.-.
In the area.” The attainment . thaUbe area cannot ‘ !pracdcably ” attain rewards areas who delay development
dwoastr tiop.houuseEPA . ; thel 4QSbyDsuember31.1g9 the, .
approved modeli te qu fe. . n . . m n.e IedAd ..penifles certain dates by Patb . EPA behlevà Its’ -
•complete modeling analysis (sne ded, which-EPA must prcpo s bretiaarlfy - ‘ . • • ._ ••
cumsId thigpoInt ,srea.andnioblie apprupxIatemoderatesreasassdou :
___ ( 56 g 1991) -. ofn, odeiatearea $Jp mnm mnmlIrand
h .COSfl takefiaal a.ThsEPL.lw (i . - _____
Ths w$ ã bf juobfle mea m es dls lionyautho I r.ectIon For 1e:ifáaie&thal.’.J
kaj p u !u . 198(bj(1)ti dthsu ny.fiha moderats area . -
- unhIa an atfa geIle any tfn*Jf EPA • . sws . 1iis4o çint robaiate
..sourc! .ma.ures - the tviini ptpmc$calgy_ •t ther ___
C Pw6arLIeMaU r •‘ an R Iconais sith
1.StatotomyfldcIgroñ i “ ; dls tionwbáe,fpreva npfe, iA .
• -., .-- . or%1nafly6elievsdanaieacauId ttabi
• % jLunqIwuons. JumuuateoI . - ..-- -a, •• %..- -
___ the r ONMQS. ,oj . ew .
- , - -— .•• _, .- . 1094.uui wter u i zzwu wnt It nn t. . -
wçoa meaum% w “ 1iuw .vI,: ‘a - •• -? - i-.. •. m
.seèti nWjdJ(4liB) â thi ‘ & ‘j Act- ___ hmM? .;: before theeppl able a”e ’tdat& - -
were 4 4 ated acnattaI mm*by . .• will easure that addi__aIcodIzaW
operatipn cffa*.These q u” ' ’Msd ___ “ '? meesu s (IaJnaddidon oRA(M
‘ftUTermer r* Iare s14entihedJna’ “ YL Q’V ?. !edous-a sinuatimpi tbesf’ , -
— A .% .1 _L 1 . U ““ '-‘ U! ynfljbl 0 . A..4—.I
E VWWWI( J ‘-- -. ..
(9 .r 31. f9ao), aiij’
toborl9OFm eraI1 agIa i m •. - t - S y whcnareasi Iimtts ’a ...,.
th lyjuä4áate W EPAthèy bt’ . -.
• 7 ‘•! “ ‘ Lt - coverthetibua ”t
np a f theize ie4i$ed, . , i” prac yettaln,zntflaomet ime aftm .
DO*”l1’tfO P*1O at. npt 4 !n t - . - - . - It Ins-implementing It. area. -
Jfthe’iggo CAAA. and classified s ‘ a” ' ”” ' ” ’ ” ”” ' ” “as USdNL The EPA their may” -
utoderat( ya s p 1 4ilished In 5e }11iioi. , - - - . want toreclas fylhe area rertb
) r15-l$91 notic was pl 1 d hr : .:‘ r , .d reanmnt ilm mnunstrate ‘::“ -
A fl 5 i ttk - eq c I. . • . IIO’ ii 5tSSftS attainmëit “as ei edIt1oualyas
•.- ‘ Q .qumnm - . - ;•. -
____ : -••
ffisbleare tOuona’slnn nt hr. LS . ,Udto*st ta. A oftlingly. EPA may reclasèlfy an’
accordsi c, with section 107(d)(3). On ____ ____ ai d cbndttde that the macst -
• Aprtl22 . 1991 EPA ani méed In 56FL expeditious attalnmentdata practicable
1 V4 thatit badialtiated the. . uøX ) - i- . - thk( AI dL IU$1$ for the area Is a lime prior to the latest
retIeslge Uou proces for iO.reas . . ‘ ‘‘ --- - possib le. ‘ 1 nee” ’ - -.
(‘ l( ’öui7 do dcthzlnizent-; - zeatd t edkqMt i n lnm n mt -
IJot*Opc. an sre Ii designated £ after enacbnentof the 1990 CAM. EPA
onat nmtse tlcn 188 of tha ’ -‘.. -. -.• - -mInt redassU apprcpr1 te ateas as -
e1vfPnd jil fe sovrm , i ,.uus1 - -aerfous w hlnienronthaolthe required
laislBcatIqi of the .area Ød establisher submlUa1dete forth. moderate area: -:
a • - .- . -.• lb. errH ’ .dad Lu ereasi suim • - • : .,. m• L. a L - Jd. LI. I I..ê
ue area atp.lnmniiit dateda:. -. - .:; slice wbâs m’Aa .d..SftStthSm.SdSI.d U. a &mi W5 W waiu u.S 5i.iuwZ
-acoqrdence wrth.section 1C8(a). at the bsfot ib , regukement that these SIP’s be -
eubmIUed18months-afterbe1ng -; 1
mittitnui 5 u 4 ctaI .VIf • designated nonattainment. the statute
ithed as moder by 5 f. -. - , - thys requires . t EPA reclassify e
dsrataare cai.ubse ientIy ,i ..onsbl. Iai . , m.liUanced êcethtcetwftbth. - . appropsiato m deratearea as serious.
L enfiedaa erIouseither before - s eel . within 3 years of the nonattainment
the apj ble moderate area att nm.nt 38 (. . .uth hat I I ulbUtre AS S iwice,Ify SlI designation. a. -
rat Sny U -EPA detemsainsj the’ ___ ada Lt .sIbi . ... Finally. In those cases wh re EPA - -
moot racticably ’ att.Inthe - - - — ‘ - - ir’A — ibic SSqifyM .pedS.d t determines that an area has failed to
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33538 (Federal R. glster1 Vol. 57 No.74 /Thur day. April ie 199 j Próiioséd 7 4
-
‘attain the NAAQS by the applicable this di,imsston of PM-* E PA baa -, bi sectIon 302W. the tenn maJor
attAIn1n t dat .theagealg sailed . IarIfl therelatlonahlp between • - narysource means any stationary
:- a serious by opexatlondlaw.TheEPA anbparts land 4. AU SIP’. taust a1 o . isource ivblcb directly irelta, orbas the .
must publish. notice In the Paderal. .- meet the applicable reg ilatory - . poteiitial to emlt.100 tons per year or
Register of such detenninatlons and - iequltie ents setforthln400’RpartSl ; more of PM- The emlàlou is offset . .4
ctinsequent xecl .,’ 5 celiona within S ... -texcept to the extant those requirements alio for such sources Is equal toor:
• months following the applicable ‘ 1 - : nconslstentwlth.the amended . 4 grater than 1. I as specified In sectloó -• -,
atn’ ’a”tdate. ...‘Act.h1TheEPAwlflh,rov1deS ddanceat 173(c ). ..•-• . .•- .
• Since this General Preümble a Iaterd te I rthoeeSlPrequlremtnts - :Seátion leØ(e) iit* the control
addresses àly the control measures • not addressed In thliceneral Pleamble. zequlrements applicablelo major - •
r - . . • -.”4edformoderate PP .1-10 ThediscueslcntielowIs Intended to tationazy soi s ofII4lOilso
• nonattainment areas the fdllowlu - • .provIdeeddftloDalbadi gIutmdcu some .pplhiable to major stationary sources
on has been limited to the - of the statutory * quIrements for .‘ ófPM .10piecarsbrs.For th purposesOf:.
&tahmipnt dates fotnioderate . usoderatePM -1O cnatteIumast area Implementing the requirements of ‘ •
áeae. Section 1O8(cJ(1) ‘-S W ’. and. In sam.cases .*o provide ecUon189(el.pre irsonsof • -• ‘i
of the an .niI.d Act specifies that the ..gSIAancecn hesu statutory . ‘ secóndazf l dPM— l omay lachidr
- Inftlahnoderatenoizatta lninentazeas zequiremenli. .iJOC’swhJthformseónndaryorgaui s ’
(thoe.dealgnated n natmIn ’ .ntnpoñ - ‘ (d)N ftpemdtpio wa Section ;. compounds, SO 2 vb1th form mutate -
.anagtmentof the 1990CAAA) are to. ‘189(afil) or the emen e Act provides • cthnpoubds, and NO, width fo n1frate
attain IhPM- I ONAAQSas .• • t h aI ep poseofmaet1ng a •. compounds.ThsrOfore,the control
expeditiously a. jiracticable but no Wer .reqjiIrirn nte ofs CtIOnV2(CXS) . UdI -requirements sp licable rmderPM-1O
thanl)ecenber 3i,1 994 , mum they are State with. 4OnattinInCflt ea SIP’. for major statibnaiy u .u ees of•
reclassified americas u deacrlbed - c s1 d .s moderate mustsubndt -, PP.1-10 shall also apply to major - -.
above). Areas desfariated nonattainment tnu$ ut lion plan’wblth contains a . stationary sources of these potentIa1
after ana& ln% 1 of ihe 1990 CM.A 5fl( :perndt program meeting precursors, exceptwherethe. - . ‘ - -
• dasslifed as moderate must attain the ,req*e ts of sectIon 173 for the - . -;
• -10NAAQS am xpedltlously s . • constructlonpf new and modified major - sÔ m donot significantly contithute. -
pcti bl.butn.1aterthan f . StatIOflay soui es of P 1 4- 10 (and In . to P14-10 levels that e, ed the I d-1O - .
the sdfr t .A earafterthe ‘ ior ce*es P14-10 precarsors). For the In flit ‘J% ACt•
- -Initial mod O nath,tnmpnt• leaves Wiaddressed the qpe.tlonof.
(1 SiP lreme,ife. As . reasAesIgna acco dIng to section
dlsom.eds ove States must devei iW(d)(4),Stete must submit the NSR •. should be considered together or.
and SIP providing foitl* . . permit pro w SlPrevlslon to EPA by - independently In determining maJor
• .itt_h t .1 the PM-b NAAQS for . . June 3tZ19 . For PM_i0noflatIntnjr mt soUrce size and the applfcabflit of .
every areadeslguatednc euasta lnment -: :areardeslgnatedafteráactment of the, . iecffoi in (e g pnult re .L áts ) .
and rk (I.d as moderate forPM-i0 - 1990 CAAA. States muSt a SIP - However with reipect a.ww P, 5
min n’Act. Undersection. ‘ “gthe R P LPIOZrW!1 . -practice has beeá to o ea h ,
189(a)(2), States nm,tuu%mlt a - wIthin 18 months af*desfgnatlonpf - .• • spëcth’ii u n.piecursar Inde mnd ntIy • -
a cbaffeçted area.j EPA Intends to wIien i LmU ’determlnaUou& :’
hntA tration)orth. fi .. -Jssuepr pe4 !9nsfectheNSR 1 . .. yEP*p róposes.totreaflW .
mo- t a M-1D reàs 4 Icj t J cri .program SW’ .. ffowevei In today’. i p rsorsanalcg a tool-one’ f’
4 no ’w.ntupourenactmant of the - enera1 Preamble. EPA has provided. ‘.- • ‘
.1990 C&A&byNovemberi5bbggz.The guidance on the NSR pàznltprogram .: a ntJr, h e uz: -
- NSRp . ., m pthvlslons for these areas- q n ents which Isintended to assist’ deteánfnlnj.omcè size and wbether
• emdneJ uzneas, l gexState .must •. .. States In developing and timely - - - 173 provIsions app!y Nothingb.
submit SW’s for.thouep1 a -ia arose • submitting thefrJtme 3t . 1992 NSR B !? g gnid mcs,bo*evaj , wonidprecjnde
ated tt i t fI ’ - revision for the Initial moderate PM -b - - a State from adopting. stricter stm dsrd
enactment of the 1990 CAA within i . .: Donat I 1 ,net1t areas , and any NSR SIP and, thus, proposing to consider all
monthsof these erase being designated tevislon submittal due for any - specific PM-b precursors together.
nonattabment for p 1 440. :.: •. . . additional areas design ted -. - •: - .:. (2) Section 189(b)(3J
- Th specific PhI-ID SiPrequirements •- defines the terms “major seurce”an&-.
ap .Ik .b t , moderete 1onattaInme n t .NR 55UI 5tIOM ‘,.. brnaJor stathmariiomv!”to Include any
aieas tfozthinihePM-losubpirt -- -(1) Moderate aieaaTomeet t i - - stationary scarce or group of stationary -
(.ubpart4 cfpattD hI .I) .Thtee - ‘:. inkeinents 9? sectlct!1 )(57,States. sources located within a onntfguoui area
• requIremáta4iw4 section 189 (a) • .‘ PCTm1tP 081W •. and undercommol control that emitsor’
v sw attainment - - - - meets nu we permit requirements of - has the alto emit at least ótons
• .snt jozj ,m d RAOiIIRMfl • ‘ - per year of PM-A Such new and . -
sectlanl8G(c) (quantitalivi mlkstonesj — -op o of new and modified major . mowiett me Jor stationary lources that -
and iection etaflo sMuc58 of P1440. A. deflned. jt PM-b are sub ject to the permit
The SIP’S for ‘ WI4-iO - - . .- - . - . . ..: - - . :. requirements of section i 3 and the PM-.
nonatnmeneareas tulso meet the ‘ Ck A tedsdes.Cenera! Savthgi, 10 precursor provisions of section 189(e). -
• - - - a. II. (see Pec oe IBS) wbch pnMdes that A..
(g.idenee et& me etbefore - - e . . uLnmen emani on.
• f T. - -
-nonat -----“t sar in . . . . , , , . en mocA iJrrematizmn.a. . 189(a)(1)(B)prov ldçsthatStateswith •. -
lof pert Db.deIdthe d Act to i after eascireerit Hówriâ- the SsvtngtOauss also - - inoderatepM-iO nànattalnment areas.
1he - ‘ . ot ’.-i - tkt*thr (oiguldshor etc ,; must siibn it ademoñstration PncI diiug -
z.ttbezjwfge.i .bsuthedhii .i..ln ..tIu..v i- JISUg n refl’ect pt toile extent- . • - 1. •
- “ .thents. .CJeJ r t s b ‘, L ‘ m. UU 5 , .uOww
• related to1 the more specific P14-10 - - - , attaInment by the applicable attalziment ’
requirements. Whenever poeelble during asmms s.srar — ‘ - -‘ date Alternatively, the State must show
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• . ..
• . t
Federal RegIster 1 VoL 57 No 74/.Thursday. April i6 1992.1 Proposed Rulis . 1353
that aitcInment by the applicable date Is date andlór meet the WI-b aualnment -. nllesIoae req ultement for these areas.
impracticable. This SIP submittal is due date U there Is no next milestone. This is consistent with th e purpose of
on November 151992 for tbe moderate There isa gap In the law that the text the milestone requirement which is to
areas designated nonattalament for P 14. of section 189(c) does riot artlarlate the ?provlde for “1wion reductions.
lost enactment of Ib, 1990 CAAA and starting point krcountlug the 8-year adequate to achieve the standanisby
withIn 18 monu1 &for those Diódrrate. period. The EPA belI ves It Is -‘: the applicable attainment date” (iLL-.
areas designated nonatt Inment after reasonable to begin counting thi 3-year Repi No. 490,101st Cçing. , 2d Sees.
‘enactment of the 1990 CAAA. As a- ‘milestone deadline Item the due date for (1990)). Hdwever the Mmtithtrstorla
necassary adjunct to the demcns atlân applicable impl inm tatloa plan required to delinewithin0rncnths
of aIiAlnm.14 , the Sip submittal must sions canta(nfrig the control . after the applicable att tm .t date:
contain acccapi).”4ve, ecomale. . measures Là the srea.ili. EPA bélleves. wb theTa nonattal utareahaa - • -
ararent story of actual ri ,i4wioss . It Is zeaiimabl to key the milestone.: . attaI ed tile stanaards ( sections 1 9(c) ‘
from afl sow es of PM-b In the area, as - eloch to t i e SIP revision con Iub g: : and 1*bX2B .Th , ck&emektent
prescribed hi section 172(c)(3). control measures which v1Il give rise to with the milestona rçqtdzement, within -.
• In general, att.tn.nt dr”’o”trations cantrol.... 90 days afIç the tL .ta1uI.IltdaIe, Ststas•-
for the Initial en o a i Inm.nL. ineasuz es must be Implemented thJew . must dei ouetra to that the SIPliasbeen.
- or s should tonowti eaisiing. :.# : • thanaynmftertheS1PzevIsIon . . - . 1mph ” ’ ed d.thça ba* .ars hietI
modeling guidelines iddresslij P 1. 1-l a COflt ’1 the Isr q dred tob. : -.. .. - the standards oa ,ely quAIift .
• ‘p L....., erefwe, ftjszees4 ”41e to for a f-year 411w ifnfr itq.M
___ is —. . . ‘EjZis- ‘ expect that some reil ictlonfn omissions .dat. (soá 88( ThaEPAviiIUssan.
• . -. will have o i.d3y fterth,SIP - sncenthaRF ua ntftativ :.’
re on die dateThe EPA believes that milestàe is eztântr thos.ueeas
Eaeman dat dJ i 5 ,199()) : . aeasuiTh ime perIod frpmths Sip d tednodërsteP?4410:
an —i’ ble ‘ on due data Is also reasonèble.’ non’ ’””ent after en°ctm Mof the .
Th ISO h Z. - . Fss H fly . EPA believes It wjld be e - l 90’CA .AA andfcr th
supplemental atPatn, intdemônetra1Icn. ° to begInpou tIngJk8- Onattabimen tare.. • .
H lbs b.fofliwedforbdtial a period whenever the SiPievislon IS’; (gJPl 20 ievc’s Sec’3tn 189(e )
moderate PM-1O uonattaIn ent azeas• L 1 ”' ’ . __ e ,,i ..•• t.. appfll!
fnth,. .wIaidr jnmthncê ,That 9•Jfl .- . zequitimantaiendeiPM lO:; t -
. .sntta1and.uiitiutde,dlrne . áonat iiMi ,i.nt ass SW ’s In effect fir ..
Ct t.mect de nstratiou.i ’ 7 ’ 1 ___ thif1 5 áOrk . . m rueeofa&4o at. ‘-.
.modeateareàdev1 *ied .:-/.. .tb etup Lf.m EPA’. Int etstiou: al .6ai pllóiblotoaeJdistadonaI,
client ef the - CAAA4 1II keqáenient. He EP believes, sources dPM-1OpesbIIA. Jre, JWV ti -
ná with the gen ral tb t . n s: - wbime Atth ur oas.-.
- . p eme ntb a lrqual ltybe made . . . ‘of 1-1Opreemsore donot r - 0 -ida _ 1’
th. a i due d teand - _____
.MUan7 Iu 8PPu ensuring 3.yearlnorenienta. Further, to - —enceedibs PM-1OMAAQSimIb,area,
vr wOf n,5i , begin countlig ,from the date of actual This
- upp ash WOV : -S W submittal and notltá due date $vculd air quality analyalsin which States
areas. - - - allow thosaStates that .ubmlt W’s Iat. . e s the conklbutmn..ofjaecuxsw&
(0 jo de1 m”etlig their quantitative.- . -: co ‘ofp. qb.-
PM-lOnena” entmua FJSL . milestones and, ànseqemtly, to defer- nonaiMAliàaUi Up eonsør ’
Include quantitative emisaIon - .... - “ ' dngRPP-tuwwd altsi m egt of the- do rcontrlbule to flOfl ft Imn $$
redact us milestones which are tobe.. PM-b standard.’Thus, the - :-•
addevedeverys years and which - - . fon e’: . receptotr.J nihipanathe - -• -
demoastrate RFP. as 4” d macaba . . -j p r e j p 1 5
l7l(bJ, until the area Is redeslgnat4- areas Is Noisi l5,199 1 S years after- to oveiaIlmen dors whith
..atf h ini.nt(seGtkn1*cfl.Undet th - Nov mber1L 1181 when S W revision.- - - may hi con Idored In determI ifag the- -
ilestonerrquImment,thsStatesmuit . l ufti gres,onabIy.
to EPA that the SIP. • avaflable.control technology) are due for sourve mimsâd d Ityncriatti1nme t
measures are being Impl ’n nted and: -. . - .. azeaslze,metearology. and topo ap c.
the milestones bayc been met, wIthin 90. Per the InItial P1,1-10 moderate -- - In “ lcIng a’determ lnatlonregard lng...
days after the milestone due.date41i - _____areas, the . “wions - . slgn1Scànt aad the need tpconlrvl .-. -
EPAmust then detezmmne.whetheroç not reductions pro u . made betieeetr the. -: preerumimb a spec lflcarea,EPAwlfl
the State’s Jemonstration Is adequate, ,- - sip submIttal (due date of NovembarlS.- rely In part as Use ‘ eJi 1 Jv .i Information.
WIthin 90 days of recelaing the. - 1991) end the atl ment date of. - - onl*inod hi the State’s submIttaL . -, —
- December 31 1994 (only 40 days be*ond. Including filter analysIs,IhI relative.
Under sec 5 lfll89(C)..the State Is • .. the November 154994 mIlestone date)- confrthu$Ioa of precarsors to overall
required toi4iiiilj a SIP revision tilt-- :- win ,atlsf the first quantitative . tonattainment, ádtbe State’s RACY!
falls to sutmili the quantitative- -: . milestone. The de fnInlmt 5 liming : RACM .lrategy,-among diher tos .-
_____________ • . -- . d iffei!essdal lnA It aIm Inl .tiathrely - - States, howevsr are euáauragedio - -
.daamines thde—!I-I -— ’u ua not . - Impracticable to require separate submit additional material for S:,..
reet .TheSWicv ,..... I sdanw Ithin9 - milestone and attainment - consideration, with all finding , made on
eitbore “ ‘reporting - demonafratlona. Thus. EPA’. policy Is to a case-by-case basis dàe to the hIgh
date or EPA s - .-.L. iL.t , - ha the emissions reductions - degree of variability . inni g .
w*g-J— . SP revision progress made between the SIP - . - ntn1nmerg areas. There will be
I 5W that the State will achieve. -submittal due date and the attainment variability. for .l . .mple, in the -
I t miledone by the applicable date will satisfy the quantitative clarecteristics of the area-wide
S.
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— FedexpI. P IVoL57. 74 . j Thd,Ap
onst prthkh nreja gthere1afionshlp • •iiofice. dete ng that ACM guldanèe
mqwarranta . between moderate and sezi us area should be Issued for these eontâeO and is
ofig tffir nc that differs from, :control measures. As dlsc ssed above.: 4cisswág ucb -Sedjoñ19OaIiO .
uiut tn*ue iw- a point source Inøalrton. moderate PM—b nonatt I.,m. 4 ai as . — •4 eq% fres ti EPA
I nns$ The EPA Is requkedto -. maybe recla!slfied as selousJ wsnant emission ,educUoñs achieved or . : 1:
Issue t4dqnce on this meutilds to sectIon 180(b). States having areas: ëxpected to be achieved nader Ut! 1V
Ceneral Preamble contains a lengthy . that are reclassified as señora iiust ‘. and other provisions In ‘IssulIig ‘
discussion on control requirements forrn eubniit SIF8 for theareas contafnIr g .- I .iinct 8 na nldiin deteànlnations ’
135-10 precursors In moderate ‘.. BACMivbIch Includes Uthe applicatlol j
•nonattalnmenl areas and Is Intended to .vf best avaIlable coàtrol technology to • to ssuegi iil*i ,p for
the requirement for guI n’e to’. azislingsthflonarysowves”(H.L Rep. ‘: add mis n’en and
eextenauthguIdanceIsreqwredfor No.490,bOiatCong.EdSese.867 -; U onAl • .
moderate area SIPs having con o1 ,1b990)).hT The Sfl .contRhIh gMQ,1f ° ‘ ‘ °
major - provisions must . ‘.‘p un.a .r ... e a..ii’ -
a tasourcesofPM-1OllzeEPA _. wu ths fttheaffec ted ’
Intenda.to provide additional gsi . . Is reclusJfled as serious Li otlon.
if necessary, on control i 5nt5 for ‘189(b)(2D.These g p’ for’ ’ .O?Oiiwirwvww.w ww,.’ ‘ -
-major stationary sources of PM4O ’. the Impl .møntaUon ofBACMIBRCTno .
y1 0m when It Issues preposed -. later than 4 years nfter being ‘.‘•-‘. -- awL 011 ,.
regulations for the NSR permit program radassifledIwbId ’ 1s30 months afterihe many we ues au P JU
applicable to 131-10 lonattalnment ACM1BACT submittal Is d . - WUWJ UYEPA staff on AwflZ. 1991,
• -.ectio 1189(b)(1)(B)). - ‘: :.: . ____
• the control technoloqulremolts - . Under section 100, EPA must : -. jnuwizutø nat*a1p 1 ’.n!
applicable to major stationary sources h dinIca3 guId*nrw . for RACM and . -.
h serious 131.4 5 attainment MCM by M 3 i ao z tima - - -: ‘ -- - - - :- • .
• - (h) RACM/RACI Section 189(aX1)( . 5°” ° CGICSOriCS UrbOn fugitive dust - (a) A .4C1IL The suggested starting.
the omeiitled Act requires that i M nUáI wood combustlon-and•. - . ,point for spedf yIng RACM In each Sip ls
• nioderateareaSiPs - -. . presczibed silvicultural and a dcultnral ‘I8 c ontiuImea .urm
• “reasonably available control v • . burnbg This Cencial Preamble satlsfles• for fi ItIve d is r . bl.i lia1wood.
méasáei forthecootrcloIPM-bO . -- - .EPA’ obflgation to Issue gu!dance on cOmbU5tiOE SndprCT1bedbWuiD - :
emlsàlons. Section 172(c)(1) of the --- RACM for these source c gories’11d “ ' ‘ ed In BppendIceiCL . nd Q.
amended Act Tn turn. provIdes that - •gu1’ ’ also updates previously-Issued JfaStatüecelvesaubstantive,pullc
.RAQ4 Lcmuonattalnment a aeshall . , : 8Ol ” regarding RACI’ for large . : ; . VlmImDflt demonstrating through •
• mold chredudlons Inmâledum- •- .sthtiona 1ource1 The AC?.tgu1daáte-
from e dst1ngaowces Inihearea as may tO facihtate S velopinent in serious -“ Eadd1t co Lw) measures may well be
• be obtained thrOugh theadoplian, at a - - areas will be- ; ,.--reasonably avaI) ble ma particular -..
n lnImum of re .’o. . ”bly available.-- issued at alatã date. t’: - . • - those measures.hould1
, , In addition Lb requh1ugRAQ &. - - ddtdto the list of available rneaàres
t these ovisicna vennit tin t gwAence for urban fugitive4ust, ‘. for that aiea.The RACM lsthen.
.niodtsar b PM-tO SIPs I dude l $IdefltI 5I wood the affects arëi s ii 1
-tAt Afore dst Iá ources - ‘tha th se?.
____ -- - -- - E PA -’ -
Underadlon1e9fa)(1y .( ftJje .- 5VI11 h1 Other5oWCScat 011e87 -available, - • --
ameridèd Act, InltialmoderatwPM-iO - ‘ - ‘ ° non t of the - - -- e areasoned .Y
ao t a. . PM-b NAAQS deter Ine If addilio al --justfficalion for rejection of any .. -
ilesljatéd nonattainmentUpon : - guldance for RACM and’MCM Is ’. ‘OvaIlab1e4 uutIu I measures. If It anb -’
enactment of the t CAM) müt -.. needed, and lssue.any such gnh.lsInre by : shown that one or more measures are -
-.ubmlt - RA November15, 1993.-This document - -- imreasonablé because emissions from
control measures by November - -pro es gui for sources of e sources ale Insigificant -
- and thea SIPs must n v1ai for -fugitive oust (inciudingurban). . (Le.. de whilmin) , those measures may -
-Implementation d CM/ A esIdenlial woodoombOstIo and : be excluded from further coiaIderatloi :
.*t ai ecem io, iooa mose-” pres tbed buiuing (Including — : : - ‘.as theywould not represent RACM fo
aróas ; edvicultural and agriCultural). The EPA - - that nrea.’ The resulting available -
a. moderate •belleves, at this time, tba theae -- . - confrol measures should then be - -.
- of the 1990 CAM must’submlt - . .. categories of aourcesare contributing tø --evaluated for reasonableness. - - • ‘ -
contnrMCM/Bthitrol : trdnmmi of-te PM-b NAAQaTo :considerIng their technological - ‘
-measures 18 months - - - the extent thatihese categories of feasibility and the cost of control In tht
aonattnlmitint detigniltion (seesection _sources are broader than, or In addition-. :.‘__- -- - - - •- - - -
189(aX2)(Bfl.These SIP ’s must provide - to. those expressly Identified In section - “W eaesp.zuwl.r -:
kr talion OIl ACMIRACI 290, the Adm ,i ttfrator Is by today’s useenutiibute àyte,J ytosmbknt
-aolaterthan4yearsaflarTheaffected • - - - - - :-‘ - - -; p q exc edtheP A b? A. -•-•--
-niees aae giu’&d • - The Act does not oxpreesly define ‘beat - would not consbtuleRACld toreqube -. -
-wIdth I. 3Gnieulbs after the applicable - best ‘ .esotzul. ou the www in tide regard, Itla weath
Psub ittpI i :- ° °‘ tcdmoIcgy for PM-ID --- • . ‘ - uotiugtliat th ta feninistrallee -
- - - - - - - - -, . nonaI ’ . . f pwnnies. GnJ I i on ’be.t. - - .- es toe enpt 4. ‘ .“.4” . ultuetloni -
-suellable central “ wove ” ( Induding “ best regu1e cnbeb. tinant . ’I
Notithitsérfotii ea l ’ 5 ‘ °° ° ‘ ‘ ‘ “ a vo sde . 4 &..I.
t ràibnfiare bliefly described • . POenas’s t , iol ilbees!dinfrn L Un ther
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Federal Register I VoL 57, No.74 / Thursday. April IL 1092 / Proposed Rules
area là which the SIP.ppliee. in the 1939). August 1988. These documents guidance on the evaluation of the -
case of oubIlc sector sources and control have been in use for several years and technolosical and economic feasibility
meaiare th1 evaluation should .- are based on substantial Input from of control technology for existing
consider the Impact of the - - . - State end local agencies, trade groups stationary sources Is contained In
reasonableness of the measures on the end associations, and control experts, appendix C l.
inimloipal or other governmental entity’ “Control .1 Open F 8h V. Dust Soi ces”, (c) PM-1Opzecwsor SectloaI8O(e)
thatmust bear the responsiblilty foi may serve U .n exanple fl IYZI $ of the amended Act provides that for all
their Implementation (e.g.. paving of ..-: control sti fora s1V area, COPIeS of )*io noaattalnment arees, the control
unpaved public roads). It Is Lthportant to these dutwnents may be obtained by reqhpaentsspplienble under PM-ID
note that a Slate should consider the . contactins National Tedudcal SWa effect for major stationary
feasibility of Implementing measures In lnforrnathm ServIce. 5285 Port Royal e of FM-b are also applicable to
part when full Implementat Ion would be Róad Spelagileld. Virginia 1OL ‘ . . n of PM-ID
Infeasible. The SIP submittal to ’EPA - . - (b)MCT.Th1t 5uldafl follows premseors. except where EPA
should contain a ,‘iuonml justification - EPA ’ . historic definition of RAC ’ru determines that such sources do not
for partial or full rejection of any - lowedt emission lImitation that a - contribute .ignlflcantLy to PM-b levels
available wiIrol measures. including - . particular scarce Is capable of meeting i- o NAAQS In the
those tcIered cepresented during the by the a caU n ’ofcoritrol technolog area. Thus, for ev” 'up 1 ’ , because
State’s public heerhg procoss .3hat - that Is reasoruabWav.flabla considering moderate PM-ID area.
explahrs.wlth eypi dite a / technological end ecácflulc sIF.
docernentatlon. why each rejected..;- c”? feasibility.” The PACl’ ippllcs to tha’ of PM-iL .
Control measure 1 5 InfeasIble or - ‘ “ “e,ds ’W £ iiicss ’ of PM-ID stack, - should also contain RACE fotmajor’
otherwise unreasonable. When the’ proce. L glL1vo . and fugldvá dust stationary.owves of PM.boprocarsors,.
process c i determl lng RAOd for emlu t ons ( .4, haul zveds. de bms otherwIse.
• area Is completed. the individual: - ‘. . st .g ig areas) (see section 172(cliI) ) .’ Section f88(e) also requires that EPA
measures should then be wi ,eded into The EPA r —” 5 that major issue guidance for the c iiirol of PM-ID
a leghily enforceable vebide (e.g., i - stationary sources bq the minimum ‘ e.m dismusion 1 .euts : -.
regulation orpe program) (.ei starting point for RAC!’ aialy$s.
sections Ifl(cXe) and 1iO(a)(2)(A)) The . enerally, EPA rècoi mend , ‘ EPA’. guidi ce for controlling PM-ID.
___ precursors for major aiadqnary SUU U$
regulations crotherineesures shoudd’ available w LUl technology be app in moderate FM -bo’ncnattalnment. , -
meet EPA’. criteria regarding the’ - to.tho tiidstlng sources In the
enforceability of S W’. and S W revislone. ‘ nan&” hrmerut area that are
These alIens were-stated 5 ‘: 1 -to contiolla lightof the sttabrm.Itt - ‘ As explained earlier (see i tlc ’ -
September Ig m. nT I11e1 f,ftj needs of thaireaand the f *eihflJty of 1LLC.L(g)). pur ,ànt to tkrequbument
; aftachutenta) frtim J. QelgPotterc/’ ‘ ‘much controI&Thva, ’Areéoinm ”dI, of section leg(s). EPA Inteiudsto makia
Ass1st it 4 i . . .t . .IutratàforAfrand ‘ - - that a S late’s cOntrol - foflRal ditiurmaitlon as to whether,.
p 1jocua5! . gi :. v.,. aafses for e wIng stationary sources major . tatIcn ry sources of PM-tO,
Assistant Adminlstr Ior for ‘--‘ - . - go beyond major itat1im ’y sources in - precursors contribute si fflànUy to
Enforcement nd Comptianc :‘ ‘ - the area lad that Slits. âqufre.ccoiml - PM-bOI s. ln8P area when.
MonItcrIn and Praacloa 1ake . ‘ tachnilogy far other sources In the,-- It takes Tn1a I II ! actiop cathe’
General Counsel, Offlco of the Genàal that axe reasonable to controf In light of’ , -:
Counsel, entitled “Review if State’ the area’s aHp .t needs and the. HOW.v 5 adetenunthadOnlwfll b based
Implementation Plans’ind Revisions for: f IbilI y ci such co ntrot t ° Specific an air quality analyses. on any.. ‘- - -
EnforceabIlIty and Iagal Sufficient”.’ . . - . , additional technical thfprmatfoa. ; ,..
As stated in that memoranda -SW’s. ‘sisjsssunpl..44 resassptusbseU ’ by IduIIS Ies unlng’
‘and SIP revisions which failto satia $ *ut s SIP develcpiwutád on any other
the enforceability criteria shou}d’not be”. studies cOndo ted by the State or EPA.
_____ - . which maybeip to indicate whether
“forwarded for approvaL If they eve - ____ ti majoratatlonany .ouircitofspclflc
.submftte d .theywflJb dlsa ywvvdIL’ - ____
In EPA’. judgment.’they fail to satIsfy ‘‘ “ Ness thu w d”d precursors ntribuIa “ ‘ tlY 10
applicable statutoiy’and regulatory” ‘ - - , WIthL C tsSlIIm lbs mJb kW PM-IS coricenfrallons Ins Particular
erassew his pssulbls thuias%its area. Tijerefore, *blIe the equent, -
requirements. - “- : ‘ -‘ ‘ guidance as to
The eqbnulcuI guidance that discusses “ ‘° ‘ ‘ ‘ EPA ’s Imp’ e ” a$on àf section leO(s).
In detill the s,,ggested Initial meaauuei’ W ttr b SssámC Ol
- t ,anss1 ”’ assó and gives an Indicailon olsoune of the.
In appendices C1.’C!. and,C3 and.th&t o ss , - ‘factors that wlU guide EPA’ .
State bould’couaIIe 1n deI - . -.” - g ‘ , l,tiwji gycm ‘ - b .tsl. 5swy sus a - under ibis section. cons of thi qnera1”...
‘whick ilia measures hr ejipeidices C l. w uns5isis ‘sI tha u ’ - viawi expressed herein are Intenaed to
C2 ,’and C ue.technlOnlly feasible und 4e , .e, I ,Ir ,d UotM’ preclude spedfl° S..&ngs based on’
economically reasonable b,a particular evl ws ci’IndMdaal SIP ’i’for PM-ID
-ares lsconta lnedInfourdocum tar . ‘ . , onatteh Iat eI& - ’ .’ - “ ‘. -
““Control of O en Fugitive Dust- -‘‘ “th.t.so Od l.L.-’o iss lbs ions. Is
Sources,” (EPA-45O!3-88- O8}’ “ ‘ ss .csabIfmflabb. Auitauscsd show. - The Ic wt’ug ,dlscussloal$ Lslaaded’
- 5r ’ 7Z#i1th IW Art p .VMSa thu - b prpvlde.bidal guidanëtiwlth resI ect ’
___ 0 lbs s.s. , to-each of the above named btentI4 . . :
for Risiduatlal Wood C nnbusUon -- •- ThIsI. ‘ —‘ - • ..
- FaiiIs 1om Coutoilkasures,” (EPA-450/” 5ACT.. .JZ.._rt diTth1 CM PI T ss lbs is.o . ____‘
2.88415 ) September I95P ‘Prescribed’’ A ’ (as.,scbos 37ZbX3) of lbs pialno uioptsd cutud ACI ’(sss.
- CMA Isur . Ud ,pre’.ws.dsd hw A Is •.. sec 5s. ISZ(s)CZXA)cIthS s w .d Mt use
re SmnkeM .gs a.tt Guide’ (rF - th. s .ow s to i S a aIso sects. snOt lbs . wW .ct -
iqo. 1279f1 February , a..- us Ii Islousipistid ho.. n’*bcbsvus thai rvWarA s.si sx 5t w .s...
‘Prescribed Fire Plan Guide” (N1tS No. Q&. .skssieced Its btpit i i .If Ot tos. al.tsM WI Qeso Al. 4IdAIM ”d b)
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13542
Federal Register / Vol. 57. No. 74 I Thursday. April 16. 1992/ Proposed Rules
PM—b precursors. Since the potential of sections below adthessing control Thus, along with their information
SOi and NO 3 emissions to contribute requirements for PM-b nonattalnznent addressulg whether VOCs conIribu ,.
significantly to PM-to exceedances is areas that do/do not demonstrate significantly to P14-10 nonattainment i
more regionally dependent than VOC attainment - * their area. States may wish to include in
emissions, the following discussion. Unlike the case In the Western United their SIP submittalsa showing that
focuses on general regional , States. as a general matter, pollutant control of VOC emissions under other
characteristics attributable to SO 3 and transport between airsheds In the -. Act requirments may suffice to relieve -.
f Oz emissions. In the western United : Eastern United States can be ‘z ’ . “• - - them of the need to adopt PM-iD
States. (considered west of the lOOth “responsible for a relatively large portion precursth’ controls der sectIon 189(e).
meridian for the purpose of this ,.‘ of secondary particle cOncentrations In. My such a . dIn :w1n be made by EPA
discusslon ) .EPAbelieve thatsóurces - nonatta lnmeatareas.Thua,the ‘: -. basedon lnformation provided lathe
of SOi and NOx emissions may - “ determination asto whether sources of.; Individual SIP submittaL Other Act
contribute to exceedances of PM-b PM-b precursors In the nonatf inment control requirements which could be
levels In several major metropolitan •- area would contribute significantly to ‘ ‘ considered as dontribuVng to VOC
• areas (e.g.. Los Angeles. Salt Lake - - PM-ID con entratlons lathe same area. - veductions are-where for eaciinple areas
County. Utah County Denver and the’ is Corre$P odingly more diffiCUlt. - . which are ponattaln’n.nt for -io -
San Joaquin Valley). The EPA ’s :. Mqzeover, the th ifs C ,- ’ 1 - I-p nonattalnmeat for ozone and, thus,
conclusion with respçct to these areas Is contributions of the subject precursors ‘are already required to apply RACI’ on
based oaths presence of factors which vary. Sulfate éompo .unds for example s9urces of VOC under section 182(b)(2).
enhance the likelihood of secondary ‘ are geniraUy known-lobe present In’ . The VOC reductions may also be
fongation from these precursors. such as. signlflimnt .quintitfee Ii many eastàn realized fiom biw or modified major
source mix and denslty nonattalament areas, while hfstqrfcally.’nltrate • . stationary sources due to the
area size, particular meteorology, and ,: compounds have been measured In ’ • - Implementation of NSR programs in-
topography. Where nonattaInm nt areas relatively Low concentrations thipughout ozone nonatt. Ilment or attainment
are relatively small In size, precursors- the East. As explained edrlIer pod as, areas. When reviewinga SIP submittal.
are usually transported out of the area . . with VOC’s, EP4 will deternthie the . containing a request for an exemption.
• before secondary particles in : applicability of section 189(e) ba sed on m p o ’preç rsor cpntrols under -.
significant quanti . However, due to the technical and aitr other available’ section I$9(e)’fn pat becaiiseof actuil’o
greater size of the areas mentioned.’ ‘ Information provided hy States Iir’theii expected VOC rpductious fro nôther-
above, pollutant transport between.:.’. IndMdual SIP subinfttale. However. ntrcpl j nf en ents of the 1980 Aé.
airpheds Is considerably dminlshed: “when cons dering’wk thé sources,fn - EP& qterni1aaUon-w1U lnclude,pn.
consequently, locally emitted PM-b - FM-b nonittnticm nt areas:ihould : assessment pf the reasonablenesa,of.the
precursors rérnalnin the atea’Iong .. •. requlred.ëo adoptP?vf4bpreänsor — - subthsioj uessm by.EPA’ .
enouèh tóform secondary ar!lcles i nd control, gPA will assess the ” ‘ - w1li akè Into’acc unt thà possible
i itiake lgnIflcaáicontzibuUdn th’thö ‘reasonableness of thèSIP;submlttit In sig ilflc ’ ce of differences between.
PM-b giroblem btba area.”The’ ‘light of the.fact the subsl ntIal reg1ón - sbutegieè for PM-ID and other -
partlculai combination of soOrte mix.’ - wIde redut tions of SO,. NO ’and VOC p flu ts (e.g., requirements Imposing.
zseterology. and topogrophyJ the e ‘ ‘ ànsariexp ,ect èb eóWt fr ili BACr as oppo sed to RACr , pad:,
- majér metropdlilari areas izrely oomxrs’: the Implem ntatIonbT the Act Thele- -“ differencesin at hi .iient deadlines)..
‘In other areas in the WéM FÔ1 this’ : emissions reductlonrrnäy rultigate ‘ (d) CondensibIe PM-la Cándensible.
reason. EPA believes that sources’of .‘ precursor coniributfons due to PM-ID p ..Z ternauer(CP j refezi.to’-:,
SC and NOx emissions are not’O likely ‘concentratlons.rThe EPA will also tSk particles ,hIth1orm In the atmosphere
- to be significant contributors to The:: Into account the blsiôtlcally low nitrati’-
nonattainment problem’ln tho eotber . concentrations In the Eastern United- - as the eximust áaees from a source cools -.
areas .l ’herefore, If EPA determines. - States: - . - - The CPM erilisions form particles in the-
based on information contained In SIP ‘.me EPA will also cônilder the - FM-ID size range and are considezeti
iubn taIs and anyother available . - Information subjiiltted by States - , . . - en Iesions1see. p .s . . rPM..iO SIPS.
b4ormatioe. that mijor stationa’” cont. I’ijnj major stationary sources of Development.Guldeline.” Uune 1987) at•
sources of SO and’NOx In the W stem’. VOCs In areas whlch,are in ‘- - ). 5-32 and 55 FR 4b54 October 12,-
UnIt d States do not contribute • . ncnat ° 1 ” ’e”t for PM-iD to determine - 1990fl. 7110 EPA Issued guidance on -
significantly to exceedançes of the PM-’ -whether VOC emissions from such CPM in a p mber24 1990 - - . ..
.10 standard, euch ources would not be ‘sources do/do not contrilmte .‘‘. - memordandum from John Caleagni and
lo meet the ti r: /signfflcantly to exceedances of ther .‘. WIlliAm Laxton entlUed ‘interim - .
statlormjy sourcesof’ :amblentstandard In their paiththlar . ,GUkInT11 on Emission Limits and Stack
Fuirther dfrctisslon ’ - area hi a *sIderbg the iedui tlons o be : Test MttÜIOdi for.Incluston In PM-iD:
R CNn PM-.b0 ’ ‘; achieved i y onttolUui PM. I0: - -.‘ .5 P ’. ”.0eneza1br ACr for áouiceaof ,
laneut areas Is fo md Inthe ‘ ,precursorp under séctionl89(e ) . * . ci M will be revIewed ionslstent widi’
‘ - .- ‘CongresshasindL atedthatEPA-shotdd
____ .ni ‘ take !° account reduct lonsach levablè It l reasonable and thereforet. - -:
I ..
• - bet iiai and ma the thsra ctertetIm of iii. ‘from cqnt el requirements Impoaed11y ‘, . - . •:. - -: -
mm Itawirom Ibe stat tOI7 -: - other sections or tltlis’qf the 1990 Act.” AA In adibl ..I1.4 pte isoi The House -
- • - .. ‘ . Report states as Mown Ths Committee expects -
the Mminlaualloo to baomonles the .PM-1O - -
fldthat’_ C@ex.. that souri ea of PM-to reduction objectivi of this section VIth ojM,
ISM-lO , . ..... .oro may be otheimis. onctrolkd. POT. applicable aegulatloas of this Act regarding PM-tO -
‘in the area.’ example, the HouleReport states that “lube piecunarx. au d i siNOx (HR lisp- No. 4 at 8).’
m*T. Committee notes that soma of these precursors may: Throughout tie discussion of PM-to precursors EI A
Inasut well be contn kd under other prot4slons of the lass relied oath, actual snet&reductfona
the Acr(H.L Rep. No. 490. 102. 1 Cong.. 2d Sesa. ma Irony other C’.A requirement. and has .ttempleJ to
I 4O (1020fl.Moieuver. Congress expressly - reconcile these with the CAA’. PM-tO attainment
- ‘ reesm As4 that EPA r—’Ar thet plovisioss of oblective. :‘ - ‘ .- . -
- ‘d “ , - .
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Federal Register Vol.57. No. 74/Thursday. April 16. 1992 1 Proposed Rules
constitutes RACT to control CPM only
where CPM is a significant portion of
the er. issions from en existing
stationary source.” Further guidance on
the identification of sources where a
State’s RACI analysis should consider
CPM Is found In “Assessment of the
Controllablilty olCondensible
Particulate Matter,” published In
October1990. The EPA recognizes that
this document Is interim guidance and Is
still sublect to review. Also. note that
EPA has recently proposed to add a
methOd for measuring CPM ethlsslona
from stationary sources to appendix M
of 40 CFR part 51(55 FR 41546, October
12,1990).
(e) Totoisszspendedpoitkvlote (7SP)
%4CE Since 1979, EPA has taken action
to approve a number of TSP
nonattalnment area SIP’. that require
RACY for existing stationary sources of
TSP. As a te’ 4 ’ 1 ’ I matter, RAC1 level
measures to control TSP emission.
generally utilize technology thatalso
‘effectively coUtrols PM-b emission..
Thus. EPA believes It Is reasonable to
generally presume that control
technology which represents RACY for
TSP emission. from a source satisfies
the requirement of RACY for PM—b
emissions under the amended Act.
However, the reasonableness of this
ccntzpl frdusr1ogy may be refut d for a
particular source Isa PM-b
nonattalmuent area by Information
which Ind1c tes that a level of PM-b
control seater than that achieved by the
TSP RACY would constitute RACY for -
PM-rn Further with respect to controls
on stack and process fugitive emission
points that represent RACY In currently.
approved TSP SW.. EPA specifically
recommends that the emission limits be
reviewed in light of Improvements In
control technology and reductions In
control costs that may now make lower.
emission limits reasonable. In addition.
regulations submitted as part of the PM—
10 SIP should be reviewed to determine
whether they meet EPA mfteria -
regarding enforceability, as noted above
(see sections 172(c)(6) and 1b0(a)(2)(Afl.
Consistent with the previou, discussion
on MCM EPA will not a p .e any
PM-b SW contnlnlng RACY measures
that fall to meet applicable etatutory -
and regulatory requirements for SIP
enforceabilIty
.• •f i— ’’ . ‘... -
Whets M — “.‘ons axes negligible pestles
4 Qf U.IssfOU. &emsn neisthig sisIIaesly Sense.
Asp inthst co trøl y be . “ “d
sebelegemeasonaM, that sewse (S .. stan
Cesilo. sis PU
DC. .WtJ$—------AaboveJ. RACt forths
no cc,nt,ol or. stated
ul m .J 5 , usA.emaj condud, that cdnDoI
rot i2w .emse I. net tsa.onabfy
- In those PM—lOnonattaiflmoflt areas
that do not have previously.approved
part D TSP none Itairunent area plans.
the particulate matter regulations for
existing sources should be reviewed to
determine I1
(1) Additional controls are necessary
to meet RACY requirements.
(2) The regulations meet EPA s
enforceability criteif a. Similarly.
existing regulations controlling...
emissions of specific PM-b precursors
should be reviewed on acase.by.case
basil for major statlonarysources In -
those areas and RACY analysis
conductEd unless theM ,nlnl.trator
determines the ourci does not
contribute significantly to PM-b lãe
which exceed the NAAQS In the area.
Section 110(nfll) of the amemded Act
provides that all TSP SIP’s. Including
any revisions, that were approved or
promulgated by EPA before enactment
of the 1990 CAAA shall remain In effect
until EPA approves or promulgates a
revision to the SIP under the new law.
Further, the General Savings Clause.
section 193 of the amended Act, states
that any control requirement In effect or
required to be adopted by a SIP In effect
before enactment of the 1990 CAA.A for
any area that Is a nonattaimnent area
for any air pollutant may not be -
moilffied unless the thodlflcatf on.
ensures equivalent or greater emissions
reditrlftw , . of such air pollutant. Thus,
under section 110(n)(1).e3dst lng
provisions of TSP SIP’s r. , a 1 n in effect
until such provisions are revised und° ’
the new law. Also, under section 193.
modifications to TSP control
requirements, such as TSP RACY.
cannot be approved unless at a
minimum they ensure equiialent
emission reductions of PM-b.’ 4
3. SIP’. That Demonstrate Attainment
The SW 5 for moderate nonattainment
areas should provide for the
Implementation of control measures for
area sources and control technology for
stationary sources of PM—IQ emissions
which demonstrate attainment of the
PM.1ONAAQS as expeditiously as
practicable and no later than the
applicable statutory attainment dates.
Therefore if aStateadoptslees than all
available measures but demonstrates,
adequately and appropriately, that (a)
RFP and attainment of the PM—b
NAAQS Is assured, and application of
all such avaIlable measureq would not
••A moderate P14-10 .t ..1. nonattalnemot
area for any sir pollutant within the meaning of
section 193. Thus. for these areas, any modillcatlcea
to any contictrequlremsnts. Inludbtj ‘ISP. would
hi..e toenaur. eqidvslent emission reductions of
PM-to.
13543
result in attainment any faster, then a
plan which requires implementatIon of
less than all technologically and
economically available measures may
be approved. ’ The EPA believes It
would be unreasonable to require that a
plan which demonstrates attainment
Include all technologIcally and -
economically available control
measures even ‘though such measures
would not expedite attainment. Thus for
some sources In areas which
demonstrate attsInmen It Is possible
that someevallable control measures
may not be “reasonably” available
because their Implementation would not
expedite attaInm nL’-
A.prov lded insectlon l72(cX9)ofthe
amended Act, all moderate
nonat’°in’nent area SWs that *
demonstrate attnimneñt must Include
contingency measures. These measures
must be submitted by the Initial
moderate nonattn lhment areas no later
than November15, 1093 (Sá sectl9n
172(b)).” These measures become
effective without further action by the
State or EPA, upon determination by..
EPA thatthe area has failedtomak
1 1FP or to attain the PM-b NAAQS by
the applicable statutory deadlint These
c ntlngency measures should mn,iat of.
d$er available control measures that
are not Included In the ebntrbl strateg)
OnebasIsEPArecothrnei for
determining the magnitude of
contingency meuirés Is the amount of
actual PM—b .‘nIiodi iiducfioh_s.
refredbytheSWbônâte jto
attain the standards. When developing a
control strategy and demonstrating
attainment with dispersIon modeling.
the State may determine that some
actual emissions must be rediced and
also some allowable emission limits
mustbereducedtöthe levelsthatthe
sources are actually emitting.
The contingency measures to be
implemented If an area does not attain
the standardson schedule should be a
portion of the actual emissions-’ -
reductions required by the SIP control. -
strategy to bring about attaInmentY ”
Therefore, the contlngenóy emissions
reductions should be approxImately,.
equal to the emissions reductions
“ See. e.g. 44 FR 5(Apdl 4, 19783 Sc, also 50
FR s4eP (VebursIl 11.1991).’
“This constitutes the fonnar’ -
estab ’ . . ’4 cub. schedule sacording to which
the toltisi pM -10mod . ,.tspcesttstmo ”I ares. ,
-‘must submit thi coetln oncy mmaul isqukement.
The InitIal P 1.4-10 consttainmant aiqus were
deslgostad nonattalnme’tt upon enactment by
operstlce of law. See section aOtjfl(4)(B3. Under the.
,chedule established tcdey. cootirigenCy messuxes
must be submitted no later 3 years item the
nonattalwaent designations for the.. areu which
n thi, instance. Is no later than November15 1993.
-------
. 13544 Federal Register / Vol. 57. No. 74 1 Thursday. April 16. 1992 I Proposed Rules
S
necessary to demonstrate RFP for one areas that do not demonstrate instances, the Installation of puUu \
year. For instance, reductions equal to attainment. - . controls representing RACT may involv
25 percent of the total strategy would be - Areas that cannot practically substantial capital expenditures. In the
appropriate for a moderate - demoizst te attainment of the PZ4—io - event that BACT Is later required for
nonattainment area since the COTItrOI standards by the applicable attainment those sources, this may require controls
strategy must generally be Implemented will be reclassØled as erious areas significantly Incompatible with those
within a 3-to 4-year period between under sectIon 188(b) and will he. recently Installed as RACF. largely
development and the attainment date,-. require i to implemiqg MC VI. which: wasting those recent expenditure..
and since RFP generally requires annual the ap llcaUon Of DACT ti Under such circumstances, the - -.
incremental reductions In emlsslonsto ZISI1D stalfnnary sources (so. p ..p Installation of controls In the first rotlid
attain the standards. - = ., , . -, . -.
Rep. No.490.101st of SIP pt nnh would be unreasonable.
The Contingency meisures sboWd . (1999fl . M foi hose Acco dingly. SIP ’. foi the Initlil.
consist of other available control -. areas thit*ffl be r tii,ineti rnerious, moderate areas reclassified as serious in
measures beyond those required to .,
____ the mandatory reclassification •. -
attain the standards and beYOnd EPA believe If may b reasonable, In: areas need not
RACM, It I. Important not to allow - . some limited stences, for States -
contingency measures tO obViate : tosIder. si ompaubWty of RAC ( require maJor changes to.the control.
systems for specific stack and.process
adequate and appropriate controI •, and RACT with the MCM and MCI’ sources where I State reasonably
strategy demcrnslritln. thatvill ultimately be Implemented
Contingency measures must 1. ‘ mder the serious met plans for demonstrates that such changes Will be
.. .,•. elgnificanflyfncompatiblewlth the
Implemented editelp.aft r EPA - .. . application of RACT-level control
dete,i,th pq the area has .ailed to maká In the case of RACM for lystems. A State’s demonsfration should
RFP or to attain the standards, La., Uthe EPA anticipates that IDY fUtUTS Include, for example, showing wh t the
shortfall constttutà a fraction of the. ImpLun.ntation of BACM for ti state believes RACT and BACI’ are for
&ea’s.annual reduction target, the sources will be additive to. and hence the . 1 owce and why they are
measures to be Impleineuled should compatible with, RAC1VI. This Is because significantly incompatible. - -
address the specific deficiency BA 4 will generally consist of a urdie In the case of fugitive dust associated
Indentity. The purpose of the mdensive Implementation of the RACM with stationary sources, EPA anticipate.
cont1ngenc measure provisions Is to i. ronainres ( g . Pa de8 more unPaved - that the Implementation of MCI’ will be
ensure that corrective measures will. ___
the components of compatible with the Implementation of
- automatically become effective at 51nO t P!OWam. Imposing RACT. This Ii based on the fact that
time that EPA TnniD 5 such a - -‘ additional requirements to improve the-. control of such emissions under BACT
determination. The EPA is required to . pérfcrI i of bo d blrning devices), will gene ally be additive to RACT
deteiiilne wIthin 90 days after receiving Sinie EPA nII4ate. that RAQtI and controls (La., calisist of a more extensive
a mllestáe demonstration and within e BACVI for these aowues will be., application of fugitive dust control
months.after the atthlnment date (on or
2 y arsjater if àtOislonj pf the. c-.. - comp s,the S W. f i thsse measures imj osed as RACfl.ThereforI.
attn(nmont d te’are geanted). whether - should rsflè the aj I(’iItion of? EPA empeth that tO:the e*tent that
available cc itt o lrneasuzig to existIng contiol of those sources Is .
ther uImments have been met : sources III moderate nonall*In1 t. technologically and economically.
- (sectloás 179(c).1fi8(bXz) and 189tc)(2)),
Cóntin ency measures must L f ly areas as determined by the analysis - feasible, the SIP’s for these areas must,
• .adopte 1 and jake ‘effect wIthin 1 year dotil*d above for RACM. reflect the apPlication of available.
wlthoullurther legislative action As discussid previously, the control technology to address fugitive
EPA hake. sick determinations. - ..-, def I.. . ’Hon of MCI’ for specific dust oml .elons associated with
Moderate areas that EPA finds )*av . stack and process sources Incjudes stationary sources. -
Ttà ttaln the standards by the - - CO” de?itIo ii of the tedtnolcglcal and (a)AULdnOTent date walse, -
e date are reclassified as econnink fpasibility of control . -. - UDder
- operation of law measures. In thi case of those modei ate setioflle8Øroftheamnfldrd Act. EPA
). Guidance for serious PM—la areas that were ‘ may waive attalimment dates for a
areas addressing the contlàgency - . non tMhin nt upon enactment of the moderate area where EPA determines
- measure requirement will be Issued at a 1990 C&AA.EPA plans to re’elassify iio nthropogenlc sources of PM-1O
those’areas which EPA believes onnnot ‘contribute significantly to a violation of
f-I practIcablyattaInbjDecember3i,ig , thil M-10NAAQSinthearea.Thus,
_____ those States h vlng nioderate PM-b
- -.. .: .-- - Imple ’nasitttlon of BACT will be nonattalnm.mt areas where sIgnjflcant
-requ lredfãsource.Intbe l n itfal’
orate PM O - mädorite areas that EPA so redassiflel contributions to PM-10 emissions come
areas WheTS the St8tC ’. approxImately 2 year. after the deadflne from sources flot àused by hanu ns
_____ directly or Indirectly may request an
cannot demonstrate,. - for hnplees .eti.tion of RACF.” In att I ’ ent date waiver. However, PA
may only waive the attahpnent date for
_____ .those moderate areas Øtat fully,
____ - tibplement their moderate area SIP.
requirements (seoUL Rep No.490,”
101st Cong., 2d Sass. 205 (1990))., Thus.’
any State having & oderate
nonattainment area that the State
believes may qualify for an attainment
date waiver should be nevertheless
- .“ -. ‘ t7adsr.sdtss1ao( ), modàst. arse.
b.4 ig4 .ccstt.Inrsest St S C ent iJt
asQ .I (lacluding RACT) by Decsabs,
above, to existiag ___ ‘ reclualSed U
seslass uast taplamsut MOtI BACfl’
iourca,.The EPA bOlieve, it is 4 year. after t1 on. Thus, If EPA
reasonable for aJJ available control’ ‘takes teal amos to ,sdu.tly arsu Is i0 , tkey
measures that are technâlogicai ly and 4 to taple est BACT .pp.oala.tely
shut th Decesher loses Impteessutabos
economically feasible to be adopted for . te 4iln . for RACr
nnannfhmnne itV anw- iL
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Federal Register I VoL 57. No.74 / Thursday. April 10. 1992 / Proposed Rules 13545
proceeci with SIP development and of uiodeling or monitoring information Improvement in air quality is due to
implementation. ‘ which indicates attainment or permanent and enforceable emissions
In addition, the legislative history nonattainment of the NAAQS. For reductions, the area has a maintenance
suggests that Congress contemplated a example. an area might be designated plan meeting the requirements of section
narrow definition of what may qualify nonattainment for violation of the 175*., and the area meets all applicable
as “nonantiuopogenic’ md would limit primary $05 NAAQS. the secondai requirements under section 110 and part
it to activities where the human role in ISO, NAAQS. or both.” More detailed D. The Agency will issue detailed -
the causation of the pollution is highly information about the basis for . guidance for States seeking
attenuated (see generally HR. Rep. No. devign tIons under the new law Is redesignatlon of nonattalnment areas to
490). ‘The term ‘anthropogenic sources’ provided In the following discussions. attainment at a later date. -
in intended to include activities that are (c) Methods of designations. Somó -
anthropogenic In origin. An example of areas were designated “by operation of Classifications •. . -
uch sources Is the dry lake beds at : law” upomi enactment of the 1990 CAAA The’c asslflcat1ou provisions (section
Owens and Mono Lake , In California, - based upon their status Immediately 172(a)(1)J give EPA the authority to
• which give rise to dust storms that ar a befàre .enactmient. Areas which were dassify nonattainment areas for ths :
ri ult of the diversion of water that . - desipited ncnatbninent by operation purposes of applying attainment dates.
would otherwise flow.to such lakes arid of law (section 1W(d)(1)(C)) are Hated in (section 172(a)(2)(A)). In exercising this
should be considered anthropogenic 40 R part eL - . • .. authorfty EPA may consider such
sources’ (H.P. Rep. No.490 at 265) The. • liii EPA now has the authority to - factor, u the severity of the
EPA intends to Issue additional • edl1 . 1giikte additional areas as nonattainmake problem or the -
guidance on the scope of the waive - nonat’ ” ' ”t for SO,. The flrst step In’ av ilabllIty and feasibility of the
• provision as It applies to both moderate this pxuceu Is for EPA to notify the pollutloncontrol measures. Based upon
and serious PM-l0mmonattalnment affected State’s Governor that available the classification. EPA mai set later
- In the near future. - . . • information Indicates that the - . attalnm”t dates for areas with more
(b) Intenmotionol border areas. Under designation of an area In the State severe air qnaIIt y problems (section.
section 179B of the amended Act, a SIP should be revised (section 107(d)(3)(Afl. 172(a)(2)(A)).At the present time, EPA
for a mo !erate PM-b aonatt tfIiTI t -. Section 107(d)(3)(A) provides that EPA does not Intend.to establish a specific
area affected by mIsslons originating. may act (La.. notify the Governor that all classification scheme for areas which
from sources outside the United States & area should be redesignated) “on-the, • vitilate the primary or the secondar3
shall be upproi,ed bytbe Administrator- basiaof air quality data, p ” g and $0, NMQa- -
provided such plan meets all the. ç - control considerations, or any other air-
applicable requirements under the Act .‘ quality related considerations the Pl s ub m issiOn D a I1ln e .
• .e- . . -
(Including, for example, RAcMJRA tT), Administrator deems ipproprlate.”Not; Sut mias iVleaIU1nee foi States to
other than a reqtzlrement that such a later thanl2O days after rece1vlng this submit Implementation plans (part D..
plan or revision demonstrates’ - . notification, the Governor should submit Plans) for SO, NAAQS are given in -.
attainment of the PM-b NMQSby the ap ropr1ate redesiguatlons to EPA section 191. ExplIcit plan sirbrñfssion
applicable moderate area att tmiIent •(sectlon 1(d)(3)(B) ) . If the Governor deadlinet are given for noáattábiment -
dateandtheSlPdemonstrates thatthe fallstoactwlthlnt20daysofthls - - ‘areaswhlchvlolatetheprimarySOi
area would attain by that date, but for notification, EPA shall promulgate the NAAQS (section 191).Explicit plan
- the emissions emanating from outside of appropriate designation (section submission deadlines are not given for
the United States. Generally. EPA • 107(d)(SXC)). If the Governor does nonattainment areas that violate only
expects that such areas will be adjacent respond, within 120 day. after EPA the secondary or both the primary lad
to International borders (e.g.. El Pun. •recelves the Governors response, EPA secondary SO, NAAQS, howeven -
Texas Nogales, Arizona Imperial must promulgate a redesignatlon m ig (a) Irdlial nonattoJnmentdreos . States
Valley California). . • any modfficatlons EPA deems necessary with existing nonattainment areai fi*
(section lo7fd)(3liC) ) . If EPAintenda to the primary SO, NAAQS where those f -r
D. Suifi it Dioxide : . - modify the Governor’s re eslgnatIon areas lack fully approved SWa. -
1. DesignatIons . :. submlttal,then EPA must notify the - Including part D plans, must submimit
Governor of the modifications no later implementation plans (section 191(b)).’ -
- - The Act, following the 19 - - then 00 days pdqr to the date EPA These Implcrnentatlán plans molt meët’
gave the primary authority for lnItlatIng
designations to State Governors. promulgates the redesignatlon (section. the requirements of subpart 1 of part Dt -
Although State Governors continue to 107(dli3)(C)). . and they ipust-be submitted wIthin 18 -.
have authority to initiate therdesignation Criteria for redesignation. ‘Ike - months after enactment of the 1990. . -.
revised law sets forth specific . CAAA (Le. ,rby May15, 1992). ‘- - -
process tsectlon 107(dli3)(D)J the 1590 - - requirements which govern the . -- gs si*sequer ,:nonauoinmen: areas. -
CAAA also give the EPA the authority ___
to lnitlat and to promulgite redestgnation of an rea from - - States-with areas that are d&gnfite or-
nonattainment to attainment (section esIgeated, after 1990 CAAA -.
designations (sections b07(dXl). (3D. 107(d)(3XE)) . The particular criteria for - enactment, U nonattainment areas
(a) aauification categories. Iii - -‘redesignating nonattainment areas to th primary SO, NAAQS must submit
1iaer l, areas may be designated as attainment (section 107(d)(3XE)) Include Implementation plans (section 191(a)). -
- nonattalnm.i.t, attalnmenL or - -. the followlng Th9 area has attained the These Implementation plans tmast meet
iàicl i Iflable foi the NAAQS (section NAAQS . the area.lmai a-fully-approved the requirements of part U and the plans
107(dKl)(Cfl.ait4 they provide authority
and atihedules for designations of areas, - (section 110(k)) implementation plan. the must be submitted withIn 18 months of -
foLI twiog promulgation eta new or - - - - the designation or redeslgnatloo.
“1). pdm.ly $01 NAAQS. I . that level whicitia (c)SecondaryNAAQ& In the past.-
revised N4AQS (secthrn 197(dJI l)(A). - - ‘TequlaIte lb piplect the publlcbe.Ith (section - . Congress and the Agency has required
____ 1Oe(bXmfl. The seccodafy SO, NAAQS. Ia tbstIevel
R ! 11 of designalloaL The SO ,. which S tt UIaIIS to eIad the public weliwo’ more expeditious resolution of - -
- designations can be made on the basis Isecilon ic9(b)12fl- - - nonaltainment for primarr NAAQS than -
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13546
Federal Register! VoL 57. No. 74 I Thursday. April 1O 1992 / Proposed Rules
- for secondary NAAQS . Example. of this “authórltyIo establish flexible
are the availability of 18-month attainment date. (section 172(a)(2)(A)—
extensions for Implementation plan (CII. this flexibility does not apply to
submittal, for secondary NAAQS areas which have specific attainment
(section 110(b)). and the discretion dates (section 172(a)(2)(D)). Specifically.
allowed In date. for attainment o ‘ the flexibility does not apply to
secondary NAAQS (section attainment of the primary SO, NAAQS
110(a) (2J (Afl. ..: : because the attainment date I. specified
For areas which violate both primary for primary SO, uonattalthent areas
and secondary NAAQS . allowing . (section 192), but It does apply to
separate schedules for secondary and eecqndary SO, NAAQS because the -
primary plans unnecessarily 1990 CMA do not specify an . ‘. ‘
complicates the plan Implementation a t nniet date for .ecndarySO r
and processing. Thezefors, EPA expecte non t’alnment areas.’- - -.: :
• secondary NAAQS attainment plans to. (a) frJtialari mat w OL -Arüs
beau edonthesanmschedulsas.
plans fo?the primary NMQS.for tbe e.
areas. ____
• AsaresultoftheiO9OCMA,EPA
has the authority to establlsha schedule
for submittal of a secondary NAAQS . - ____
plan or plan revision (section 172(b)).’
The EPA must establish this schedule at.
the time of the nonattimnent -
designation. The SIP must be submitted
the the
which were tsdionat ” 'ent.
at the time of enactnieat (I.e.. areas. :
which are nonathhlin.nt by operation..
of law), must attain the primari) NAAQS
as expeditiously aa’pradlcable but no
later than $ years aftet enactment of the
1990 CAAA (I a ., by November 15,1995)
(section 192(bfl. ‘ .
(b) Subsequent ñonaUabrmertt crees.
Areas which are redesignated as.
nonattabunent. subsequent to the
uunai .rn ”i ue .zglmuus. a%Iwu u . November15, 1990 date of enactment.
the law allows up to 3 years for SW mustattain the primary NAAQS Naa
submittal, because the level of control Is expeditiously as practicable,” but not
no more difficult to establish than for . later than 5 years after the
the primary NAAQS and absent . nonat’ t n’n.nt designation (section.
compelling justification by a Stath, EPA 192(a)). .- ;• -. .. ... -
will require SIPs for these areas within - ‘-. (c) frcde ruotapIoi othue(SlPcaU -.
18 monthsof nonit’ ”” 'e” d geatlon. areas). Some.nonauaIn .nt areas have
..V$j ’ • :
4. Attalniñeit Date :... . • . • plane which were ap md by EPA
- • beforeenactmentofthe l9 g oCAAklj
In the 1990 CAAA. Congress set subsequent to the plan’. approval EPA
specific attaInm’ ’t dates fri. thatiuch a plan Is substanfiafly
nonattalnnient areas which were fo d I nate, the plan must be revised to
to violate the primary SO, NAAQS” provide for attainment. The revised plan
Att nent dates fOr nonattnln ent must provide atS Intnent of the primary
areas violating either just the secondary NAAQS wftbln S years from the finding
or both the primary and secondary SOt of Inadequacy (section 192(c)).
NAAQS were not specified although (d)Attahunent ofsecondaayNAAQS
Congress deleted the requirement that m. ia , , CAAA set the attainment date
the secondary NAAQS be attained by a for secondary NMQS as “a reasonable
for att*innientof. .. ‘ lime” (section i10(a)(2)(A)). Thu was
I (aection. rT - conslstent with the requirements of the
- igi OAct.Atthesametline,fcrth.new
require attainment of part D nonatfnhwn.nt areas, section
,and secondary. ‘ . in (a ) i) established the attslninnnt date
ar - ‘‘ for secondary NAAQS as “as
(A) and expeditiously as practicable.” The EPA
the 1990 CAAA eIterated In regulations that”a
: S. - - u . • reesonab)e time” aftei plan
—“bi--.Jthi nvg. ...I : . was allowed for attahihrent of the
t8ts b It . seomdar NAAQS (40 R SU1O(cX l)).
N .,tdflI • In the 1990 CAAA. Congress provided
:for attaInm ”t “as expeditiously as
uwi c(the pisa (1W? practicabl.” Inboth primary and
Par r’ ” ’y • :secondary nonattabunent areas (section
.172(aX2B. Congrçsu set a sp dflc
. - attainment date of 5 years for primary’
• sur pe ‘—‘usuth.w?CMA •. NAAQS (see above) but did not set a
5 w ”- ’---—. . 5 rboth prisaty mi Y specific deadline for’attalzuhent of
• ___ U secondary NAAQS (section 192). At the
- V’uakLbSs t p ydaadmb.. deedlias
tsar rn.o(, t , same lime, Congress deleted section
174iJ(1j ur s IVCWJ . - ‘. l10(a)(2J(A). which had stated that
— ‘ - ‘,:r. ’ • • -.
• attainment dates should genez rily not
exceed 3 year. from plan submittal
(section 110(aX2)(A)). This Implies that
the only lest for the approvabibty of a
secondary NAAQS attainment date Is
wh ther or not the date is “as
expeditiously as practicable” (section
172(a)(2)(B)). : . . . •.
To maintain continuity with past
program guldanc. EPA plans to allow
aliainin.nt withihe secondary NAAQS
to be scheduled on the basis of what Is
expeditious foe the area (sedlon 193)..
Areas which are nonattainment for the
secondary SOa.NMQS may be allowed
additional lime for ats In ’n nt beyond
the deadlines mandated foe the primary
NAAQS.In general . EPA will rely on the
substantive provisions of 40 CFR 51.340
(subpart R}to determine
expedItlousness. - ’ .• - -
Areas width are nonatfih.rnent for
both the primary and secondary’
NAAQS may split their attainment
dates, I.e., attain the primary NAAQS
wIthin 5 years end attain the secondary
NAAQS as expeditiously as practicable.
This will be acceptable provided that -
the State can demonstrate that the
secondary NAAQS cannot be attained
within the same timeframe as the
p AAg • • • . . • -
5 Noaatt t n ent Plan Provision - -
(a) Ovembw The 1990 Act re uIred
States to submit Implementation plans
which would indicate how the State
• -would attain and maintain the NAAQS.
llia requk wents for these general SIP’s
were Listed hi part A, sectIon 110. In the
1977 CAAA. requirements for
Implementation plani In nonattalnment
areas wire given In part D (section 171-
178). These requrlements addressed a
number of Issues InduMng but not
limited to, attalnitant datespermit
requirements. and pianning procedures.
The 1990 CAAA have not made
significant changes In the plan -
requkem90t for SO, nonattht ent
areas (section 172). Forthls reason .
States thay generally continue to rely oi
past guI 4 me SO, programs. This
• pOs1lionIif thirsupportedbythe”
GeeqmiSavingsClau secontalned ln
section 195 A surnwary of e dstlng
policy and gnlliitvs may be found In the.
“SO, CuM I1ne.” the “Gul. .llne On Air
Quality Models (revised).” and other
docum . ’ ts listed In Appendix a Despite
the continued validity of past gul ’lanr ’e
in the imp1. ” ”titfon of the atheqded -
Act for SO,NAAQS, there are ibme
areas of policy that need to be clarified.
One area that will need policy -
clarification Is the issue of plan
approval. The EPA Intends o consider
only the final nilernaking status of the
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Federal Register / VoL 57, No. 74 / Thursday, April 16, 1992 / proposed Rules 13547
SIP at tl e time of enactment In definition of RACT for SO Iq that measures shall consist of other available
relationship to the requirements of the control technology which is necessary to control measures that are not Included
1990 CMA. This Is consistent with the achieve the NAAQS (40 CPA 51.100(0)). In the control strategy.
Savings Clause for existing plan. Since SO, RACY I. already deflred as The EPA Interprets the contingency
provisions (section 11O(n)(1)). If ihe the technology necessary to achieve measure provisions as primarily
nonat$Rlnment area had a part D plan NAAQSI. control technology which directed at general programs which can
that was approved prior to enactment. failed to achieve the SO, NAAQS be undertaken on an areawida basis.
the EPA will not require anew part D would, by definition, fail to be SO,: Again, SO, presents special -
SIR For these areas, a new part D SIP RACY. . . . consIderations. First for some of the
will not be required regardless of The EPA Intends to continue d fl1i other alterla pollutants, the analytical
whether the attainment date for the area RACY for SO, as that control technology tools for quantifying the relationship:
bad passed at the time of encactin”t of which will achieve the NAAQS within between reductions In precursor
the 1990 CMA. However, If tbd statutory timeframee. emissions and resulting air quallty
appwvad plan was not a peril) plan, (2) RFP. Section 171(1) of the . “'.“ded Improvements r .ta subject to
the Stite will have to submit a complete Act 4aft . 5 RFP as “such annual .. signiflc”nt uncertalnitles. In contrast
part 0 plants EPA for approval because Incremental redactions In emls*er , of Ith procedures forpdllutants such as
part 0 plans are requrled for the relevant air pollutant as are reqiJ 1 ed . so,. Second, emission estimates and
nonatIM nt areas (section 101(b)).. -. by this part (part D) or may reaonably attainment analyses can beetrongly
POlicy clarification IS also needed be required by EPA for the purpose Influenced byuvciI 3 opUm!sUc
concerning the status of areas that lack ensuring att .Iw11a of the applicable assumptions about contrul efficiency
approv’ed part U plant and that & “ “ national .iht . t air quality .tan” '’d by d ratesbf compliance formany small
a SO, emission source that has . the applicable dat&”ll4s4eflntdon Is sources. in contrast, controls for SO, are
permanently shut down. A m 1 nln ium of . most . 1 4 Iate for poihitanti which well thderstood and are far Tess prone
two actions re required for States are emitted by numerous and dIv i. s to rmàrtainty. Since
wishing to establish that the. areas are sources. where the kelationehip between measures are by d ffn1tIon based upon
IndM source and the overall air what Is directly and quantiflably
Inoperative quality Is not explicitly quantified, and necessary to attain the SO, NAAQS,It
The first action Is that the State must
provide EPA with sufficient evidence to where the emission reductions would bq unllkely .for an area to -.
eátabllsh that the source has In f . neomsary to attain the NAAQS are implement the n u . .iIy emissions
been p .cm I 1 y shut down. Three. b Inventory-wide.The definition Is control yet fall to attain the NAAQS..
criteria exist for establ ”jpermanent gen raflyleu pertinent to pcIlutanb Therefore. for SO, programs, EPA
sOU CS5hatdOWn.Th 5S ikriaXeqcirS such as SO, which usually have a. Mt ta “contingency meaáe .”to
proof that the source has bees .. . . iimited number oficurces, relaUcnehips mean that the State agency has a
lnopáatlve for at least the px c ,fing. between Individsal sources aid air compreh n in program to fdentlf
years. that the ‘° I quality which are relatively sources otvlolatlcns it the SO, NAAQS
resuming operations. and that.the source defined. and uk ons control measures and là undertake an a resalve follow-
has been withdrawn from the Stata’i :- which result In ft for coinpR nce atid enforcement, .‘
emIssIonsI ventosy. - . .. L . i uent In air quality. That Is, for Im eJuiIng expedited
The second aclion Is that the Stats’. SO,, there Is virally a single “ step ” establishing enf P1OCedUT 5
___ orceable consent
must establish that fully-approved NSIP . between pre .contrcl floDaHaM1n.1 t and agreements pendiné the adoption of
- and PsD programs are In place so that . betv, pre.contro l rev SW’s.
the source would be required to undergo post-wutwl This definItion o ” ' ”.
NSA prior to start-up if It We!? - 011 1 1 1. 14. - - . contingency measures for SOi does not
reactivated. . - - : ij e n, fur $0,, with Iti discernible pr. ciucIea State from requlring
After the State baa completed reIa ’ om 1 ”p betiesen smisulma and * addltk . t Oontingency measures that-
actions. EPA will consider additIo” I quality and signIftc ’t and bumediate are enforciable and appropriate for a
plan retiulrements of such areas on air quality bupt s,RFP will partladarboitcö or source category,
case-by-case baslsdJternatively. the. . continue to be construed as “adh reimcs j
State may choose to submit complete an amb complianc - m prOvisions of the stack blight
:‘ part D plans to EPA for these areas. A. achedule.” ss rule, have been rthnanded to EPA as a
discussed in a previous section on S CUOn result of the coárt decision In JVRDC .v...
redesigoation, sectiOn 107(d)(S) provides 172(cJ(9) of the amendedAd defines F.zd uu (D.C. Cir.), cart.
that a “ '‘ “' ‘ “ “t area must meet U conuijem y mea0ures as measure. Ins . denTed, 109 S.Ct, 219(1988). The EPA
the riqulrements set forth In section . th ma to be Implemented Itan . bm aflowM Stites to move ahead on..
107(d)(3)(E), Including a maInt ” e falls to make RFPpr falls to attain Ip jvijj s withoñt regard to..
plan consistent with 5CCtLOflI7SA .. - - the NAAQS by ibe applicable . . the remanded sectiomi of tbme rules. hOt
before it maybe redesignated tO - attainment date. C nfiy. meesuree. with the caveat that the States must
attalnnrent.Tha EPA recognizes that this - t)ec g ye wfth ut farther action of the status of these
Issue Is of Immediate concern to some by the State or EPA. upon determination rules, and may be required to take
States and Regions. The EPA su by EPA that’the area has failed to (1) . action at a later dat, to respond to any
guidance concernfng plan requirements. f t pmgiesi or (2) rule revisions reaidting from the repiand.
and rede IgnetIon the. attain the So, NAAQS by the applicable “Interim policy on Stick Height
futme.-’.i : .:- . statutory deadline. These contingency Regulatory Actions.” j.. ig Potter.
Lbi —(flRACZ ’. For most
—‘-r ”ts . RACY Is troT : .-- - A rtl 22,1888.). .
i m1cg that Is reasonably available ‘ US. E *OQmCOW P ot.cti.D Aae cy.Omcs . ($) £xistfr,g modeling ptot col& The
technological end iconomic ° ‘ ni ‘ ‘ amended. Act riqulmus submittal of a
Oo —- ’I krCo,,. p.zt D s fc ____
asibillty (see memorandum from It. p. Complete SW 11 months from enac ” t
1 ceinbev9. 1976). Th Naith CucIIasJa esa, v.im’) p. e 2L or nonat’ ” ' t designation (section
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13548
Federal Register I Vol. 57. No. 74 / Thursday. April 18. 1992 / Proposed Rules
191). This 10-month submittal, supported any utility boiler that physically meets meeting all prç-exlstlng requirements.
bye guideline model. must be completed the applicability requirements of 40 CFR areas which are designated
even in cases where the modeling - - part 60. subpart Da, whether It Is an : nonattainment by operation of law
protocol Is currently under review. ‘ “existing boiler under 40 -CFR part 60, (section 107(d)(1)(C)(I)). as well as areas
Equivalent models to those approved for subpart Da or not, must have C S for which are designated nonattaiument in
regulatory - ‘ra in EPA ’. “Guideline on NSPS compliance and should therefore - the future (section 1o7(dJ(3fl. must all
Air Quality Models (Revised)” mightoot rely on CEMS (or SIP compliance as . submit maintenance plans before they
be approved in sufficient time to - r welL ‘ - . ..- . . . : - - . :- -. can be redesignated to attaliunen!.
complete SIP development and- .R. . iL Any source that has other ‘ . The EPA will Issue guidance on the.
submittal wIthin the statutory deadlins. - -‘ regulatory requirements with CEMS as contents ol’aectlonl75A maintenance
Therefore, States should proceed wIth the ompIlance method shouldyely on. :- plans at i later dats.
• existing guideline modeIs without - . CEMS as the SIP complI mce method as- (9) NSA. As specified In section -302ffl
deviation from the model guideline, to —weU - ‘ / -. - -• - . for SO, nonattainment areas the term
fulfill the r quIr mentsoLthe 18-month -‘4 ilms feaslbThty of usIng.C e1S is the . major atitiänary io cs means any
SlPsubinittaL ‘ .. - compIl nr. od baaalzea4y been, stationary sou c which directly emits.:
If States andlcr óurce owners wIsJr ..oest4blisbed forsource. that fall Into or) as the potential to emiL 100 tons per
to completó work on alta atlveLmo4I’, these two afegor1es. For example, In . . year or lore of SO ,.To meet the -:
• they may do soif EPA acc pb-the . . . -i- developing NSPS thi AeflCyha ’ requirCjuents of sect lon172(c)(5). Stales
alternative models, then the 1P may he alrea4y consIderid oete oumentali..mus% submit a permit n r m that’ -
revised a y.Hower UU e, -and en rgy lmp ts for these standards. :: meeb pe mitr q menta of•
alternative model Ia ot comp’eted Ina.s. -Where CEMS are not téd IcaUyor . - -sectlônl7floflhó c strãctlon and
timely fiuMa or If the alternative Is : . economically feasible In Other cases. .- operation of mtew and modified
• unacceptable, an acceptable regulation.. otherappeopzlain continuous monitoring :5tatiofl
must be laplace toassuzeexpedtzous. . technique ,, such as continnoils ‘ - :- . Sourcèi of $O, Pàlicy and Culdance
failure to subin ltaS l Psect ion paramate alternatives ap *iedby 0 no e cc-
EPA-m+r this IV, would be . ,: documents and sources listed below..:.
TheAct d Iii990 - : . • - weredevelapedbytheEPA ’sOfficeof
EPA di rlt , be - - - - p - AirQualiLyPt i ningandStandards .
rocedures to deteriidiie dii Into a . (OAQPS) located I nResearci Triangle
mIssIooa on ai iblâiit alri r: Park. North CarolIna The EPA plans to
- .. - . addresriddIlibnelp ilIcy questions by
: vians tà i - I EPA’ . ciitei a , - perlodlcallyisaulug memozundurns—-
the enfáceablllty of which offerLg I nco bra question-and-
bns. :.:.ç,.. .:. , - -., •-answerformetSe lso- - .
- the .Cuv t n ,w, pnenforceabllity -.. - . - (a) SO Culdañcs. ‘- .;... - .-
effe rents baa beon provided to: (1) SO s CãIdelin October1989:
-(6) Test 1 -. .. . ,,. ._J Offices I y us mprnoranda r- (2) SO C e ppondIces
The .NAAQS are i (see Bauman/B ondI indPotter/M wic ./ - October 198s. - - - - - :•• -- -. -
amblint conceitradon.’thitara r W Bla)ia memoranda Hited In section-- . .. (3) Letter frÔi a Wi1II ni Reilly to -
met on a continuous basis. ‘ . IILD .8 . of-this preambis. -Ilmose. SIP’s and’ Representative John Dlii jiL In response
Consequently, States must déindnstratè SIP revilloni which fall to satisfy the to questloni and GAO report April10, -
that source emission limitations, enforceability czitena should not be 1991
- Hmm and complian - - - - forwarded for approval. If they are - - (4) Memorandum from Craig Potter: -
meihodaare luffident-to :Y ‘ ubmlttetl. they will be disapproved If ’ -:Th6mu Mama , and Frauds Blake to -
- mace with the ate qu lity - ‘ln EPA’sjudgement. they fall to latisfy Air Division Dlrictor. Regions I-X .
choIce of a mo ltorthg ‘ applicable statutory and reguIatei ‘- - “Review of Stat 1mpismentaUon Plans.
should coiislder a1ory requlrements, - . - - - - c-.... - - and Revlslâns ,forEnforceabillty-and
,monltorlng hnoIogycoitIi and.; - (8) Mointenwic. plans. s dIs ussed - Legal Suffldency.’ September23, 1987.-
- zv atlve benefit ofbnb technique .: evio ly . section 107(d)(3) of the’ - - (5) Memorandum from Gerald A.’
versus another.’- -•- . - • - :- -. amindeAc t (see subparagraphs A and Emlsoi, Director, OAQPS, to Alf’ - -
Cont1nuon, emisslthr lion! -.-; E of section 107(d)(3) as well as section. DivIsion Director. Regions I-X. -.
; systems (CEMS) are a reliable techiiique - 1ThA) requires that nonatbdmv . nEateas. “Transmlttil .of Relisued OAQPS CEMS
for ontInuousIy monltorIn emissions of must hqvp a fully-approved mthfrnani e - Policy,” March 31.198& - . ‘: -
plan meetitig the requirements pfectlon - (6) “Approval aid Pzomul aUón of
Det fledrguidan dócn izeiiIs fo -- ‘ 175A before they ca betçdeslgnatéd t0 Implementafton Plans. Dearbqrn. Lake. - . -
4eter ’atIi ng C ul feasibility In ’ - -. ati ln lenL SectlQn 175A(a) matwIafes. and Porter Counties. indiana.” 54 F
lndlvJ(ida1 cases ae listed In setifinO ” - ambeg other 1M mg , that a State must- 602. January9 1q89. -.
flLD6 . of this preamble (see letters from submit a SIP revision which provides for - (7) Memorandum from Robert Bauman
W RWY.t0’J-D&J1geU’APni 10, 1991) malnt ’ia ce of the NAAQS for at leaót . and Rich Btondl to Ate Branch Chiefs.
, Vur ber guidance Is being developed. In - 10 year. alter the redesignatlon to. • ‘ sip uefi i Checklist.” - -
- ,•- .- (section 175A(a))A - .-.• - -• -r- NovCmber28 990, - ‘—.• . -
are u •;- - sub equent SIP revision irovIdIng for (8) Memorandum from Cerald Emison.
. : . -. - - malntenan of the NAAQS for an• - Director. OAQPS. toDavid Icee.
Myaom , , where there Is dir -- -• - addItional 10 years Is due ,8 years into - DIrector. Air Management Division.
- established sew ao. ce pe fornance - - . lire first 10 -yeai mnalntenantOe lod . Region V. “Need for a Short-Term BAC
• 4md(N s ) which requires CEMS - - The law does nol provide any - - - -. Aialy is for the Prdposed William A.
- —.J .i ci1. . pkmw’e should rely exceptions to the maintenance plan - ‘ Ziminer Power Plant.’ November 24. -
- on this method In the SIP. For example. - requirement Therefore. In addition to lose. - - -
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Federal Register / Vol. 57. No. 74 I Thursday. April 18. . 1992 I . Propose I Rules - 13549,
• (b) SIP Guidance. (1) Guidance -
Pocumv nt for Correction of Part D SIP’.
for Nonaftalnment Areas. January V.
1984.
(2) Memorandum from R. Strelow to
Regional Administrator, Regions l-?C,
‘CuId nce for Determining
Acceptability of SIP Regulations In Non.
Attainment Areas.” December 9,1978.
(c) Mâdeling Guidance. (1) “Guideline
on Air Quality Models” (RevIsed), JgJy:
• (2) ‘Interim Procedures for EValuating
‘Air Quality Models E iperIence wftb
Ilementat ion, ” july1986. -
(3)ModelOeiirIoghduse.’
-. (d) New Scone Review Guidonce. (1)
Memorandum from Richard Rhoads.’
Director aDD. to Dlvblon Director.:.
Regions l-X, Crowth Restrictions In
$ar y NAAQS Nona11 Irm t
Area..” October20, 399 , :.. -
(2) New Source Review Proventlol of
Significant Deterioration and•
Nonattainment Area Guidance
Notebook4annary 1080.
(3) Ca ” ” on State Operating
Permit Programs. V.d.raIR.ghter-
notice. June 1989. .
(4) NSR Ele onk Bulletin Board,
Comptiterlzed Compilation of Previous
and Latest NSR Policy Memoranda aid
Technical Information Items Pedeqil
Registsrnotice,January 1990. • I
(5) “Diaft Workahop M’. ”uaI for New.
Source Review (NSRI Programs.”
December1990..
(8) Memorandum from j. SeIfr,
OAQPSb to Air Division Director,
Regions I X. “New Source ROview
(NSR) Program Transitional lAnce. ”
Marth l l.199L
£.Leod ..
1. Statu ory Background
• (a) Des L nadoras. I a 1978, when EPA
promulgated the lead MPIAQS. EPA
believed that implementation and
maintenance of the lead NAAQS should
be In accordance with tba.SIP.
requirements uet forth In section 110 and
notpartD.TheEPAbelievedthat
section 107—end and part D
requkenienta--were intended by
Cou ess to apply only to NAAQS
wfilcb were set prior to 19 7. In these
cases, SIP. bad already been adopted,-
the alMininsuLdates bad already
pas d. and the SIP. bad .ovaz& tabs
Inadequate. Thedesignadon proceas
was Intended as a me 4 nI1 1 m to Initiate
::nev. s weWous for thouà existing
NAAQS , Since the attainment date for
thefeedNAAQS at that time had not
yeraufved. an lead $11’. bad yet been
proven in.dequate. consequently, lead
dld o4meet1he dicumatancea which
.lnitislIy resulted Ins need for
nonattainment designations and plan the perimeter of the county in which the
revisions wider part D. ‘ ambient lead monltor(sJ recording the
The Act, as amended, clearly defines violation Is located. In addition, if the
EPA’s authority to designate areas for ambient monitor measuring violations Is
lead. Section 107(d)(5) authorize, EPA to located near another county, then EPA
require States to designate areas (or recommends that the other county also
portions thereof) as nonattalnment - be designated as nonâttainment for lead.
attalnmniit or unclassifiable with . . In some situations, however, a boundary
respect to the lead NAAQS In effect as. other than the county perimeter may be
ofthedateofenactmentoftbe l990 . ‘approj,riate.State .maychoose
CAAA.”Aiprovldedlnsecdon .‘.:. - - alternatively todefinethelead -
107(d)(5). these lead areas axe lobe, . nonattnlAn ni t boundary by using any
deslgnatedpuzñant to the procedáes . s, ore combination, of the foflow1 g.
- outlinádln sectloilol(dJ(1)(A) and (B)- techniquam Qualitative inalysis, spatial
except that mirtOin thnthames of •- interpolation of air monitoring data, or
subparagraph (B) have beiim dIfled b air quality simulation by dis âeIon -
section lWIdX5). Section W7(dXIXA). ‘-‘-‘ modeling. These techniques are more
permits EPA to require th Governor, of fnfly desaibed In “Proéedures for -.
affected States to aubmftrecormn ed EstlngProbabIlibfofNonat’ ” '. ”t
designations for thó areas EPA i eks - of a PM-b NAAQS Using rotal- -
designated In a tlmefriis that EPA - ‘. Suspended Particulatt orPM- fl D th.’ - .
deems reasonable. This tltheframe, -: D emb 1986. The EPA recommend.
however can be noix or.thtin120 that the State mtbmit adcf__Ie
days norlater than lyearafterthe date - rationAle for the bóuudai chosen tV 1tI
EPA notifies the State of the - . the Go amo a dmig mHi .nforan area.
requirement to . nbnitf - - - - (c) C l i(on .”.S )tnn - -
designations. Section IW(dXlXB). in g j of the arn.n lAd Act
• requires that EPA most then itouielgate authorizes EPA to ekoolfy areas
- these designations lo Iate than I yea deira thnatt jmoeat for the -
after nofifying the State of the. - - - pnupo ,e of applying an attalnmeqt date
“requirement to deslgnatesreasTcr lead.
- The EPA may make any modifications - ___
deemedniceiarj tO the desIgnations . cIaulflcatkm, PA may coir.’der such
submUedbytheStati(see.enlly — factoraaithesuvez ltyolthe. - - - .
section 107(d)(1)(B) of the Ad).. -
However,nq later than 120 days.befons . nona o and the - - -
- av a iuibtht andf j1imtybftb. -
promulgating a modified area, EPA meqt pollution control measures (see a.:
notify the affected Stat. sad provide en -- v2(a)( IXA ) of the , m ” t d Mt) The- -
OPPOtWIIty f the State todemunstrste EPA may,, bet lsnot requhad lO, dossify -
why anyproposed modificatlào Is - lead nonaaMtnIn It areas. At this time,
inapporprilte. : . EPA does not bth A to 4ieailfy lead - .
If the Governor of an affected State - nona 1 ” ” ’ ”t areas v ith respect to the
- - fall. to 5 nhmll the inquired lead - - . pip g effect on dated- -
designations. In whole or In part. EPA Ii- th.1990 CAM.. That Is,. -
required to promulgate the de,I1 AUOfl -- while section lfl(aX1XA) provIdes a
- that It deems appropriate forany area . to classify nomattalniierzt
• (or orUcathereb1)notdeaIg,t tedby- are C ’ s172 (a )(2)(Dip ov Idestbat
the Stdt.. . -- the attainment date r” lunr - —
(b) ACOdSL Stains shoUld - - descdbed In sectI’ ” ifl(i)(2)(A) do not -
Identify the boundaries of the . - apply to n . aMMrnent mess having
nonat T ,1aM areas when s’’ fug . 1 , dBad PJm5flt date. underothe-
nonattihmwnt designations for lead. A - of jrart a SectIon 1 8 8(a); -
lead nonattalnient Ores consists of that an aflatinuint dale
area which does not meet (or that - . - . fOr dod ted ‘ t .
COflIribOtes to arnble’t air qjrality’In . for the lead NAAQS In effect at the date
nearb area that does not meet) the leid of enacfwmnl of the 1990 CAM --
NAAQS (me section 107(dXl) Of the - Therefor EPA has legal authority to- - -
emended Act). Cen ralIy. EPA -; - -- dasffy lead nonattAinmant areas, be! -
recommends that the lead - - - - -. -• , - • • — -
nonatta lm n eatboundazybedefln edby ___ . -
“fttrtepw tio no th.t __ fmas.d -
_____ - r ssiusp__.CDfl*p leUo -
- “Sor lor(d)(5) of its — ‘.dAd does sot - ref.rMea’-”-- ” ’ ’ n-
In’ st llarsaa oft).. Sr.,. m.ajb .’- . d _ 4 .1 d 1 o .s ”It - - -
At thisu.... ‘A tea coly re4ussisd ffi4IsI tI0M &OSPPUSII tO ‘ft ’S -
that ap.c*fled mus wIthtO .sfr.t.a S t.s b. - - dssSpatad noAsnsieneat sod or.. ”” ” ke
de. oatad.! r noat Stales sod th.v.at - - amo
majority dth.asma wlthta s d mI 5. 5I For . .- . ‘ souaDyisis,lt tO
trn . . d..4 -”os . I...wIIlsot b a’ -tsdas appiyln .ddi Ics ia smas sod puáal ItOS
.ft. ’.’ ssoat$.Masot. or ‘‘ q 1 for lo a”-’- .—“-. , Mites. ags.sbsvIo
lead. - - - • - - - , p.t..ne (IJ )I.fl .
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13550 Federal Register I Vol. 57. No. 74 / Thursday. April 16. 1992 I Proposed Rules
the 5.year attainment date under section required to have a nonattainment NSR Guideline for Lead Implementation’
192(a) cannot be extended pursuant to program consistent with section 173 oF Plans,” August1978.
section 172(aX2)(D). and EPA deems it the Ad. However, now that there will be (c) Modeling and meteorologicol
inappropriate to establish a areas designated nonattainment for monitoring. The lead SIP regulations at
classification scheme within the 5-year Lead. a nonattainment NSR program is 40 CFR 51.117 requIre that atmospheric
interval. . . . .‘ required for such areas. Specifically. . dispersion modeling be employed for the
(d) Pion submission Generally. the section 172 (c)($J requires that States .. demonstration of attainment for areas in
date by which a plan must be submitted having areas designated nonattalnment the vicinity of point sources listed In 40 -
loran area in trlgggered by he area’s for lead submit as part of the applicable CFR 5L117(a)(1).’ 3 To complete the
nóoattalnment designation. For areas SIR provisions requiring perrItits for the necessary dispersion modeling.
designated ironattainment for the construction and operatlozkof new or. -. meteorological and other data will be
primary lead NMQS In effect at - modified major stationary sonrces necessary. At this time States should be.
enact ” ' t of the 1990 CAAA. States anywhere In the nonattainment area. In evaluating whether the necessary
must submit SIP’s which meet the. acco dance with section 173. Further,.. meteorological data are available and, If
applicabler rementsofpartDof the.: c lsprevidéd ln heMarchU. nol.determlne wl atneed. lobe done to
- Act wIthin 18 months dan area’s”.’ 1991 meniorandurn frOm Joli Seitz, ,.i. - obtain these data. Dispersion modeling
nooallalnlnen* designation (see secti9n átilled “Neá.SOurceRavlew (NSR) .. should follow the procedures outlined In
• 191(á)oftheim e ” .ledAct). _____
(e) ___ .• - PivgramTrai sItLonal Gddnnceto - the “GuIdelthe On Air Quality Models
lntp’ iiI the Clean Alk Act. . . . (Revised).” The “Guideline” Indicates
date by which an area must attain the - j pig Chairges that Affect NsR”: that If on-site meteorological stations
triggered by the -. •. which Is found I nAppend ix a Among used, 12 months of data are reriuired.
area’i nonat nm ’nt d i atIon For, other fhIr g , theMarch ii. i ,Oat . , - - Postponing the decision to determine
ar s designated nonattnInm nt for the mimoiandum addresses the Interim.- wbethe on-site stations need to be
primary lead NAAQS In effect at: . NSR requirements applicable to an area established could jeopardize the,.
enactment of the 1990 CAM, SIP’, must upon Its delignatlon as nonattalnment submittal of the lead SIP within the...
• provide for attilninent of the teati for lead but before the thnended law .. statutorily-mandated deadlin ’
NAAQS as e dItfously as practicable providesfor submittil of Its NSR .-- (d) Control measures. As Indicated
but no later than 5 years from the date program. The EPA generally - - .. above. EPAIs not at this time providing
-of an area’s nonattalnment dsign ’t1on - that States evaluate their guidance on the RACM masures
(see sectIon 19 2 (a) of the amended Act). existing ivies to deteimlne whether... specific to lead SIP’i. States should.
Jvities ..ç ..‘: there are any lmjedJm ts to ., - . bowevez continue to rely on guidance
A Isn.e.I above. any States : non Issued for the control of particulate
nt hiing an area designated . -. program In the areas I.sIgnareu as- . emissions. In light of the fact (hat some
nonattalmnent with rct nonat’ nm t for lead. -- SW’ . are due July, 2993k EPA
0$ In effect at eoactm zt of the . (b) ith nW n . recbmmends that Statei focus thur.
• 1990 CAAA nust develop àndiubmlt a • ernlsslonslaventory Is required to- efforts more.peclflcally-rowon.
part!) SWprovId1n for attR1nTn L - . diterminithe nature md ictentof the-- evaluations of the affected lead sources.
Moitoithe general part!). : spáciflccoitrolutrategles that are.. The EPA believes that the efforts States
‘uoittal”'e’itplan provisions are set: - needOd.’Em ssIons Inventorleè should be should undertake Include an assessment
-forth In ectIon 172(c). The SIP’s - - - - based on ineasurid enlceion br - - - - of operatlonand maintenance (0 & M)
subthIttedtomeetthepart - •: documentedemlss lonfactors.Themoze and workpractIceuzea ures.In -
reoulremeirts mull, among other thhege - comprehensI e a d iccurate the addition. State efforts should Identify
Include RAQIILRACF provide fOr RFP inventory, the more effe Uve the control and analyze control measures which
contain contingency measures - - - evaluation ieee section 172(c)(3) of the - reduce procesi fugitive and lead-bearing
reqilre Permits for the construãtlon.and aineniled Act which epedses that - open dust emission sources. These
operation of major new and modified - nonattalnient area SIP’. Include “a - evaluations should considelt the -
, statlenary iources.-Th1 portion of the- • comprehçnslvc. accupte.i ent - - technological feisibllitydf ddLtIonal
CenereLPreambIi does not address- •- Inventory if actual emissions from all control meisures, as well as th cost of -
- mOrè specifically p pjp,.. ;-; - - sources of the relevant pollutan(or - •. the Identified option.. - .
coitligenày measures, or -some o1.ihe Iollutanta In such area ‘ - -‘). The -
3. TransitIon Issuel -
other part-D si requfrements far lead - - . States should-bOgln to evaluatethelype
- no attaInment areas. States shield-- :ofe jf us Inventory that ne ids to be - (a) Tthnsition from pre.om ended Iaw
- nonetheless pretend. consistent with . - - developed and the type of - - As mentioned. under the pre-amended
:. more general guldanceon put I) - - : that needs to be collected tosupport - law therewere no designations for lead,
irejjn1ieinents tocollectlnfoimatioi and - . SW submittaL PQstponling completion-Of-- - - - - - - -
. dat nêceèsarp .to comp1 teSW- . - -. . the emissions inventory could- - seGeiemppllcMà.
•uilalyses. A listing oleome of th -- - -. JeopOrdlzOthe submittal 61 the lead SIP rquIte sstsssdstpai1 QdIIU 3d the amended
?epeciflc SW actMtles State&sbouldbe- within the statutorily.siinsidated - - - Act. SiP. thosó en in d ion.ftabtment
lot lead .uat alub meet the applicable rcjvlstoii
- complethtgls described below. The EPA deadijoes. - . - - — -: - - - USUOIthfe IOQ pert SI extepi to.
wjj1 continue to evaluate the need for,..-. The foflo winj documenti provide . - iii , extent thee. ,dqidrmesnta are leesnalstent with
more detailed iIdance on the part D . - further information for lead emissions- ‘theamended Act.Th . t sOCMA Include :
It proceeds. . - Inventory development Draft Manual - Cea .ISsviags Claus. wbfch provides tI SI - . -
- re 5 uledees (erjuldancs. etc.) Ihaffectbefote the
- : NUpdated Iinformatfqn on Approval and-. .n.cene aàttboAm.ui máteehsU remain In effect,
__________ Promulgation of Lead lmplementhtlon - after enactetent (eçe section 1531. ow,vei the - -
(a) Ii ,m . . . . . N S A. Prei Ionsly.: PJ s,” EPA. July 1983 “Guideline- -- r;, -• S nssCZ ause use provides that pncb re talatIcna -
areaethatwere not attaining the lead Series. Development’of en-Example -- ; -(or pJ&anp. etc.) shalt rmuI In effect ‘êacept to
- the et lent otherwise , ..,,,Idad ândes ibis ML
- t,i4 were4st deslguated s - . - . Control Strategy for Lead.” April1979; ‘inconstsleat with any p,ovtelcoe of ibis 4 éL 0?.-
were not - and Guidellne Series. SuppIementai V- - revised by th Adm1nlsiratot ” td -
-------
Federal Register I vol. 57. No. 74 / Thursday, April 16. 1992 / Proposed Rules
13551
and tates were required to submit SIP’s
In accordance with section 110. The
amended law, as discussed, now
authorizes EPA to designate areas for
lead. There are transitional Issues ral ed
by the changes In the new law including.
for example, the status of the obligation
to submit adequate sectIon 110 SIP ’s
under the pre-amended law and the
status of any approved sectIon 110 SIP’..
(b) Unopprovedozinodequow section
110 SIPs. Before enactment o the 1990
CAAA. a State may have failed to
submit. section 110 SIP to ‘A, It may
have submitted a section 110 SIP which
was not approved by EPA. or It may
have submitted and had approved a
section 110 SIP which EPA subsequently
found substantially Inadequate. The last
situation Is line of at least three States.
Specifically, prior to the ena ent of
theCAAA,EPAlssuedSlPcallsfor
ihree State. having substantially
Inadequate section 110 SIP’.. Except for
those areas designated nonattainment
for lead, section 11O(n)(2) requires these
States to continue, their sectIon 110
planning In accordance with the S W
calls (or. as the case may be. In response
to EPAs 1978 promulgation of the -.
quarterly 1.5 pg/rn 2 lead standard) and
to attain the NAAQS by the applicable
• date specified In section 110(mfl4 Any
area In these States that Is designated
nonattainthent under the new law for
the existing lead NAAQS must Instead
submit a part D SIP that comports with
the applicable requirements In subpart 1
• andsubpart5.Includ lngtheS lP
submittal material deadlines and
attainment dates In sections 191 and 192
of subpart 5.
The EPA intends to ensure that a
State whose SIP needed correction prior
to enactment of the 1990 CAAA and that
eipecta’to have an zèa designated as
nonattainment under the new law.
continues to progress with Its plan
development and Implementation for
that area as provided In section
110(n)(2). Once areas are designated
nonattainment for the existing lead
NAAQS, the State must complete a SIP
provldin ’for attainment by the date that
ha. ‘expeditious as ‘pracUc4I ” for
any such newly4esiguated
nonattainment area. In reviewing any
future SIP’s under sections 191 and 192.
EPAwill cbnslder what progress could
reasonably have been accomplished
x?t doi’tó eüactment of the new law
- and after enactment but before the area
Was do4ii ted nonattainmeat.
,(e)Approved ct1on 1 :0 SiPs. In the.
situation where a State submitted and
EPA approved or promulgated a section
110 lead SIP before the 1990 CAAA
enactment, then all provisions of such
SIP shall remain in effect unless and
until EPA approves a revision under the
new law (see section iiO(nfflfl.
F. Nitrogen Dioxide
This section applies primarily to the
South Coast Air Basin of California.
which is the only designated NO 2
nonattainment area In the Nation. The
basin was designated nonattainment by
operation of law (section 1W(d)(1XC).
The requirements described In this
section would also generally apply to
any subsequently designated NO 2
nonatthlni .w ’nt areas. Nothing In this
guidance prevents a SIP fore -
nonattahi nent area from containing
measures more stringent than the
guidance teoosn ,n” ’.-
In general, the Act, as “‘° “ded In
1990. does not require significant’
revisions In the NOz NAAQS program.
The Ceneral Savings ClausE (section
193) provides for general pr cgram
continuIty by explicitly pre . erv1ng
existing rules, policies, and guidance
that are not affected by Act changes.
1. DesignatIon.
The 1977 Act gave the primary
authority for lnItlqtIjig deslgntitlous to
State Governors. Although State
Governors continue to have authority to
Initiate the designation process (section
1W(d)(3J(D)), the 1990 CAM also give
the M ’nInI . ,trator the authority to
Initiate and to promulgate designations
(sectIon 107(d) (1) and (3fl.
In general, areas may be designated
as nonatthfnm nt. attiilnin.nt , or
unclassifiable for the NAAQS (section-
107(d)(1)(A) (I), (Ii ) , and (Ill)). The 1990
CAAA provide for designations of areas
based upon the at t I ent status for the
current NAAQS (section 107(d)(1)(CTh
they also provide authority
schedules for designations of areas’
following promulgation of a new or
revised NAAQS (section 107(d)(1) (A)
and(B)).’
The revised law sets forth specific
requirements that govern the
redesignatlon of an area from
nonattainment to attntnment (section
107(d)(31(E)). The particular criteria for
redeslgnating nonattainment areas to
attainment (section 107(d)(S)(E)) Include
the following determinatlonsi The area
has attained the NAAQS, the area has a
fully approved (section 110(k))
Implementation plan, the improvement
In air quality tsdue to permaneh! and
enforceable emissions reductions, the’
area has a maintenance plan meeting
the reqwrements,of section 175A. and
the area meets all applicable
requirements under sectIon 110 and part
D. See “Redesignatlons aid
Maintenance” under lIl.H.a of this
document.
2. Plan Deadlines
Submission deadlines for States to
submit Implementation plans (part.D
Plans) for NO 3 are given In section 191.
Plan submission deadlines are explicitly
given for nonattainment areas which
violate the primary NO 8 NAAQS
(section 191). The NOs primary and
secondary NAAQS are IdenticaL Thus,
the South Coast Air Basin must’submlt
an Implementation plan that meets the
requirements of subpart I of part D. and
the’plan must be submitted within 18
months after’enactment of the 1990
CAAA (I.e.. by May15, 1992).
States with areas that are designated
- or redesignated, after enactment, as
nonattainment area. for the NO 3
NAAQS must submit implementation’
plans (section lgl (aI)These
Implementation plansmust meet the,
requirements of part D and the plans
must be submitted wIthin 18 months of-
the designation or redesignation.
3. Aft Imnent Dates
lathe 1990CAAA, Congress set’
specific att hiinent dates for . •.: -
nonattaI ment areas that were found to
violate the NO2 NAAQS.The1990’ ..
CM.A require tt k1 . .D1 t of the’.
• NAAQS “as expeditiously as-’
practicable” (section 172(a)(2) (A) and
(Bfl.Althoughthe l 9 9 0CAAAglveEPA
authority to establish flexible” ,:. -.
attainment dates (section 172(a)(2) (A)—
(CII. this flexibility doss not apply to
areas that have specific attainment
dates (section 1.72(a)(2)(D)). Specifically.
the flexibility does not apply to’
attainment of the NO 2 NAAQS because
the att hiin i .t date Is specified In’
sectionl93. , ‘ . ‘‘ -.
Areas that were designated
nonattainment at the time of enactment
(Led, areas that are nonattainment by
operation of law) must attain the
primary standard as expeditiously as
practicable. but not later than 5 years’
after enactment of the 1990 CAAA (La..
by November15. 1995) (sectIon 192(b)).
ThIs requirement ap ilies to the South,..
Coast AirBasin.
Area that are redesignated as’
nonattalnment, subsequent to the
November15, 1990 date of enactment.
must attain the prlmarystandard as. ,.
-expeditiously as. practicable. but iot.,..
later than 5 years after the
nonattalnnient designation (section
192(a)). ‘
‘4. Nânatta1n xient PIa’n Provisions
The 1970 Act required States to
submit Implementation plans that would
-------
13552 Federal Register I Vol. 57. No. 74 / Thursday. April 16. 1992 / Proposed Rules
indicate bow the State would attain and December 31. 1982. All other
maintain the NAAQa The requirements construction bans imposed pursuant to
for these general SIPs were listed in section liO(a)(2)(l) are lifted as a result
part A. section 110. in the 1977 CAAA, of the new statutory prevision, in
requirements for implementation plans accordance with new section 110(n)(3).
in nonattainntent areas were given in the construction bans that are retained
pail D (sections 171478). These -. . remain in effect until the EPA
requirements addressed a number of. determines that the SIP meets either the
Issues including but not limited to. new part D permit requirements or the
attainment dates, permit requirements. new requirements for attainment of thern
and plaiuung procedures. NAAQS fpr SO, under subpart 5 of part
- Thelg9 oCMAbavenotmade.’ D.asappllcable. c.
significant changes b the plan . Section 173 and the various subparts
• r.equlreinents for NO 1 nonattainmeat, of title! of the amended Act contain the
:.areas (sétlon V (cfl. For this reason, requirements for Issuance of a NSR
Slates may gene aUy continue to rely on contruction permit to anew or modified
• -paat guidance for NO, programs In major source In a nonat’ n” t area or
meeting these requirements. This- ozone transport region. To Issue such
position lifurther supported by the permits. thO permit authority must first
General Savings CIaus contained In find per section 173(a)(4) that “the -
section 193 . ,. .: .. • -. Administrator has not determined that
- - the applicable Implementation plan Is
a owceR w (NSR) . not being adequately Implemented foe
NOnoSaiflmentPwmitRzvJwrenreflts the nonattalntnent area” In accordance
This section of the General Preamble with the requirements of part ft If the
describes the new or revised NSR Mmlnhfratcr determines that the SIP
nonattainment permit program for the part 0 requirements Is not being
requirements under part D of the adequatelyimplemented for the -
amended Act and generally explains nonat Im,lqnt area where the new
EPA’s Interpretation of these ‘ source or modification wants to locatej
requirements. For these new or revised permits that would otherwise meet the
provisIons. the provisIons discussed requirements of section 173 c nnnt be
- below are the minimum statutory -I - Issued.--- - .
requ1rement States mustuse to revise .‘.Wbile EP policy generally Is to.
their existing NSRnonattalnm.nt permit Impose a V IP where States tall to adopt
plan provisions (or to adopt such Clean Air Act NSR provisions. section
provisions If none exist) which must be 113(a)(5) of thea nended Act provides
submitted to EPA foi approval by the that EPA may prohibit the construction
deadlines set forth In the CA /IA of.199O. or modification of any major stationary
In keeping with past practice, EPA-” source In any area. Including an
intends to Issue regulations setting forth attaInrn ’at area, where there Is a
In more detail the requirements for an violation of the statute’s NSA
approvable NSR program.’ . requWments. Specifically, EPA may
1. Coosfrucfina Bans, : •. apply ecUon 113(a115) whenever thi
tra finds, on the basis of
• SUnder the 1977 Amendments to tho. ,avallable Information, that eState là not
t s cdoá11Q(a)(2)Wofthe.tetute.. actlnglicómp l iance with any
:red EPA to placecertain -. requirementor prohibition of the Act
.nonattaInm ,it steal under a federally. relating o.constructiou of new sources
Iátpo ed construction moratorium (ban) or the modification of existing sources.
he construmionóf all Upon sutha finding theMmint.frator
ma jot stationary may Issue an order pruhIbftln the
ilrnnmit areas where construction or modification of any
have an •. major stationary source in any area to
- - which such requirement applies, Issue
in admln(sImtIve penalty order In
the pTcylsbns -accordance with the requirements of
hr section 11O(aX2XI). seètion 113(d). oi brIng a dvii action
also contains a under section 113(b). Nothing In section
11O(n)(3)that 113(a)(5)predudes the EPA from”&lng
section • other enforcement action or -
ens In place - - com irrclng a criminaL aá lon under
). If ‘the bnn ‘ ‘ section 113(c) at anytime for any such
of a Fmding that, violation. Section 113(a)(5) Is dlsàued
h did not contain an- in greater detail In section W.B .2.
anquateNSA pennftting program as
reqsi . d W section 112(b)(8) of the 1977’ 2 EmIssions Offsets
Act, ci’ th. plan failed to provide for The 1990 CAAA clarify and expand
ly atnInm i of the:SO , NAAQS by the basic requirements for emissions
offsets already contained in sectior 173
of part D. Moreover. In limiting the
States’ opportunities to set up a growth
allowance (described hr section IILC ,3).
the 1990 CAAA establish emissions -
offsets as the primary regulatory
mechanism for accommodating major
new source growth without jeopardizing
the Act’s mandate for reasonable
- progress toward NAAQS attainment In
light of such statutory change,, each
State should review the emissions offset
requirements In Its current NSA rules
and determine what revisions are
necessary to conform those rules with
the alterla describid below.
(a) RFE The basic requirement In -
section 173(a)(1) remains the same In
that to Issue aperrnlt the State must
demonstrate that the new source growth -
does not Interfere with the approved
demonstration of reasonable progress
for the area. Such growth results from
new or Increased emissions potential
from major stationary sources, as well
as from emissions from minor source
growth unaccounted for by the control
strategy in the EPA-approved SIP. -
- The EPA Interprets ection - -
173(aXIXA) to ratify can ut EPA
regulations requiring that the emissions
-baseline for offset purposes be -
calculated Ins consistent with
the emissions baseline used to
demonstrate RFP. Regarding the amount
of offsets that Is necessary to show -
nonInterference with RFP, EPA will
premune that so long as Enew source
obtains offsets in an amount equal to or
greater than the amount specified In the
applicable offset ratio (or. where the
statute does not specify an offset ratle,
hr an amount greater than L1). the new
source will represent RFP. là general,
this presumption may be overcome only
If lb. applicable SIP expressly relies on
new sources to generate i greater
amount of reductions than set forth in
the statutory offset ratios. The offsets
still must satisfy the section 173(c)
requirements as discussed below.
The EPA regulations at 40 CPA
51.105(aJ13)(j) presently require that
offset be based on allowable or actual
- émisslqna, depending on which currency
- Is-used for RFP end attainnient - -
demonstration purposes. Historically.
RFP often has been tracked primarily by
a jearIy assessment of the net actual -
emissions reductions that have - -
occ*thed. because actual emissions best
correlate with ambient air quality -
concdntrations.ln such cases. EPA
• regulations disallow the use of paper” -
offsets based on SIP allowable
- emissions In exéesa of actual emissiOns.
and the statutory changes do not caLl for
any change In this approach. -
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Federal Register I VoL 57 No.74 1 Thursday. - April 16, 1992 / Proposed Rules 13553
(b)C . ng upMciocotion of offset& . Total tonnage of kiaeased emiuion, wly reductions, an exh ting source
New section 173(cfll) stipulates that - from the t mod d may. under certain condition, outlined
emissions offsets generally must be by ‘a Or WeaIOr below, meet an alternative emission -
•pplicsble. In lb. actual . ,,ii..Lin . olauch .fr
obtained by the same lource or other I - limit In lieu of meeting en applIcable
existing sources In the same : . ,, - . . - MACi ’ standard fore period of 6 years - -
nouattalnment area. However, the.
frc sntheccxnpilance date of an - -
statutory provIs on does allow offseb to ‘The Act was p O y on othenv lseeppl lcableMACrstandard.
be obtained In another nonatWanrent Issue however. EPA i cement pO y Except as follows, to obtain the MACi’
concerning the baseline for ‘ sIons mpliance extension, the reduction
area under two specific conditions. First coatA In the pan si NSR must be achieved before the othervlse
the Other nonattainment area must IISVB - eg s, i’ro’iidea that applicable standard Is first gwcposed A
an equal orbishernonattnMi ent the offset baseline is the ivn lnlous limit . mey also obtain an ex’enslon ‘if It
cla sIflcation than the no lthh t . ‘ the applicable SIP In effect at the achieves the early reductions after the
$SllUWbIththOtltCS%VCUId ‘ - tlmetheperinItep lIcatIouslaflled, . • - a p pUcebIeMAc -
cousth ct. In applying this sion,t t s e. d onstration tb .f Jaimu , 1994 ,
othênnatf hiiment area must have an a NAAQS atthhw t Ii based on • rend ftialr an enforceable -
equal or higher uona” ”t ::: • . mitilent to athieve such reductions
1 ess1flcat1on for the same pdllutak Four not contaIn en eeds t ons Ilmltatlou befOIe the proposal of the MAC?
aproposedm* urce. fcrthatparticularan cr,omue •tanâani . ‘ . . -
of VOC seeldng to locate Ins category (see existlig 5L105(a)(33(l)). re&uctioas of the hazardous
nona’ ’ ”t area as serious m. CW statut re uireme t rOVidC3 air pollutants listed In section 112(bXl)
for *so”e coula possibly obtain “ ' on that emission, Increases hum the new
offsets In sflot e pv n 5 nanaftAh ’aI t orntodifled source molt hi offset by.. . to meet a stindard under section 112(d),
area If such area were designated - - ct”el A lnrludli*g . mlulons inductions to meet
serious, were or extreme for ozone - noted above RIP end 1 tt*tn .n5 , ea ly reductions requh’ementa of
The second condition (a that the. demonstrations ‘generally ire based on eaction fl20X5). are not dltabIe’
e” ' sIons from such other - aciuel “ “ t u ,lona However, to the exten; emissions reductions- ucUons
ñonatf hvmeiit area must contdb’ ite to a that these plans are based on allowable 8i0 required by the Act and theleforó
violation of the NAAQS In the , ,. “ ' tIo ’ . , offset oredit for reductions In not aeditable for offsetting emission
nomm t In which the source ., sllowable emissions (as Deceslary.to narases “d.’pan D ( section
would construct. The sbo v1ng that sãth - conform with the requiràients . .173(CJ(2ll. .:, . - -
contribution kern so ircu In anothar sectibu 1 3(aX1fl Is.apprcprIat but w U HOWSV& . any ethiOnareEbt14II In
nonataI ent area exists ihonld hi .. be deemed Inadeqdate If tharp Is not u of the reàired MACI’ $ n dart a
• achnoiviedged and verified by the/: zeal reduclion Inichual imis” ”ns that ° . I th
‘erinlttlng authority. ceierauj. : equais ci eàëeds. as ipplicabI , the. section . -
lis eruIon mideling Isuied to lden* lease In emissions reInsidog from the red I i (or In - -
he existence of such Impacts. ope on of emaJccne or modlif ad oft tee) -
(c)flflthgofoffiet&Newsecfion - . ... .. - . shouldbii and
(e) Qeditohle ze h,cf Ions . The final - therefore should be creditable for :
V3(cXl) also adds the condition that condition, added undernew section’ - 0ff5ett11 g purpose. If all otheI
any emissions offsets obtained In ___
conjunction with the Issuanceof a 173(cXZ), p&events emissions reductions applicable requiremeub are met. Also If
otherwise required by the Act from emission. of a polluiant othãthan one
permit to a new or modified source must - being credited for purpo es of satisfying of the specific pollutant. required to be
be. “by the time a new ormodifled D For controlled are reduced as u re ultof
source commences operation. In effect . r eqidred n eet complying with a MACI’ slird (e.g..
and eziforceable .“ This new’ RACT lad acid rain reductions pursuant induction. In ndnto,dc VOC’, that are
etitutory condition for offsets m.nts t req iemut. are not . . Ii 4 ta1 to reductions of a toxin VOC.
an existing requirementunder section credItable for . ,nk.lons offsets. thIt I. subject to the MACI’ s”t’d ) ,.
.173 thatprovldes that offsets lust be ff y the.slatutoiy language does or If reductions are achilved pursuant tb
legally binding” before a permit may be ‘allow redn’jjon . that are achieved a State requirement that goes beyond
issued. The 1990 CAAA dmifled the - indirectly pursuant toe requirement of s the requlremeiite.of the Act such.
existing requirement by requiring that the CP 1 AA (Incidental emission : emissIons- rednctlin . are considered -.
the offsets be federally enforceable to b CT dJ If tl ey e j Incidental and, therefore, should be.
before permit Issuance (see revised., the other criteria for offset. contained In cons t de,ed as creditable reductions If all
seCtion 173(a) ) ,Accordlngly. while It Is., section v3(cXl) u desalbód abova. -: . other con&tlonilcr a creditable offset
posslbleforiStateto lsaueapermftto . Sócuonu2 oftheCAAAco nt ab s aremçt. - - ‘ . - . , -,. -
construct once sufficient SmissIOflS.. . source re quIrenneuts for hazaidous air . 1 or p es,ofegWty E A .. -
‘offsets have b en Identified and made - poflutents. The listed1i rdous air encourages States to aUow sources,to
fedeially enforceable (generally thiough piliutants In section 112(b)(1) ale not use pre . eAactmeut banked emissions
S permit condition made to the permit of exempt from regulation under the , reduction. credit. for offsettlnj - - .
the existing source), the State must nonatWnn ent provisions of part U. purposes. States may do so as long as
eii3%ue tha the required emissions, New and existing sources must meet, the restored credits meet all other offset
nductIona actually oomr no later than where applicable. lb. MACF emissions creditability criteria and such aedltk are•
whfci the limitation. as promulgated under section considered by States as partof the
would-commence 112(d). As part of the schedule to comply atfah.ment eznlsilcns Inventory when
operation.., ., ‘•. . ‘ with an applicable MACF stazzdard.an developing their pust-ensö nent - .
• (d) Acbialennksjans ducjj 0 New existing sourCe may elect to comply with attainment demonstration. For VOC
ectioii 173jcj(1) Include, the provision - the early reductions requirements of -: • offsets, It I. Important to note that such
that ibm ‘ . . • - .. . section auØ)(5). By electing to achieve . reduction. mdst be used In accordance
-------
13554 - Federal Rejista 1voL’b7; No. 74’flhUrsdéy,Apiil 16,1992 I Pzopo ed Rules’ . -
with the offset ratios estabfls)ied by the implied t1iattbvwL.ulO ii diicUOnj. . - . • A lvhlthftqVIZeS , pIIO b .z
1990 CAM for the different ozone ‘ aae4 to “allow” he new pndsalonifrcrn ‘.the soe deny .‘i nanaW. ;
nonaftabm nt tloas.. lbs proposed source could be furâlshed: clSltnnatlve si L”V’ ” .
g AregulatIcos(4OCFR tiolllogi3dstlngmaJcrnJ : denvhoJ
5L165(a)(S)(Ifl(CXI)) prohibits óerta1n a greater degree than that required by. “ “J1 ”
pre-enactment banked . iviJ ,1ons . -. .d CI JtrSt 5S thu the benefilss!th.
suratewftb the ab ___
our s orcurtafliz* production or : % o3 ’! ! 7 j1X 8 ) 0 1977 :1 : ’ .
___ •
of an ‘A.epptoved at’ ” biajor new or us edatatloinity 1iie logo CAAA,enioved IbIs +
JflQU “. - ‘aourve,thepezmltllngagencybadto ..- -. lsIonfromsectIonl72ánda4dedIt :
3.Oedltable Pivi .tawe Reductions foi have deteimlied that “ Int.ioas of auth s new section 173(a)(5). ConsequautI
Netting •.: ... .: . . . .. pollutant from the proposed I RuIg analysis and de ensiratica :
Ev’ pt forth. provisions of subpart 2 . WPU1d not cause orcoiitrlbuteto : - w prerequisites to the 1 5 5%mflCa qi:’
of title!, the 1990 CAAA generally do afl l 5 iOflI levels whiCh ezosea the - pait D permiL
not affect VA’. airrent procedures for $llOWSflC Tin1tt 5d • ‘,“. ; £ • ‘ : -
netting emlulons decreases and Alternatively, wilena mijor newcr ““ ““% “‘°‘ “ '‘ Jr
(see section IILA3-6). Netting modified stationary source appliedfora -l rséctIoui73(d). theStáteseiust
part D permit (In the absence of n•. . provide that the control technOto y
should be determined consistent with approved growth allowance), - . f perndhs lamed , i,wlp
GA’s , i,iaiwt NSR rules end Ws / CorrespOndlOg emiSsiOns reductions secfion 173 be promptly sulnelited to ‘ ‘
“ rnImIons i adlng Policy Sta’en ”t (offsets) Were to beob’ ” d from-- EPA ’s RACTjBACr/I t ..
( I1 T (51 FR 43 Dec n 4,1980). e3dstlng sources as a prerequisite for dearlaghous., to other Statee, and to the
Use of enactmsnt reductions for . . approving the construction. These i . . -
nettIngw1thpost.etzactment mIitsIons . - novIsIonsformedthabasIsforStatesto ‘u I - . -. _‘_ -‘-- fr.
Inoreases contInues to be available to - develop w 1L allowances” In their 7. Innoiratlve Ctmkcls fcwPàdet ;
the lantaUowedunder$tat.rules. SW ’s. 1 ‘ tandMotcrs I
because these reductions -. - The ievlsedMt restricts where new . under i ,rH 0 ,i 173(e) States . e.
represent emissions that are not . - allowances may be established
Mi 4 nhl .4Inthel 99 0base -
I , OM• I. U y 8 L - .L ’ ‘VUIU5 certain s dsting growth sliezuativi or Innovative of
e allowances. Revised sections 172(cX4) ___ i
enct”ent decreases) as d 173(a)(IXB) lit new growth and motor firing, and r 4 im ng related ti
though,ieiapplicablflty’purpo,es, the . ___ t at e
source east emissons ‘ J ”ige o. :. . , ., ,, , , any existing or major source
thih , ,1a , . -• . -. I5’” ' ’ thatteebrodetanghte,crmolcrs
U .3. ...J. ..ai .11. . • - ii, uw gw iii COiwwtauOfl
II7 iv— I UI u muu wr - with th ‘—‘ A
,ollutent (HAIj rsectIon 173(e) (1) through (4).The inA tIorii
112(0(5) mayalsdbe creditable - - f ] “ “‘1’s 2” require that a jeoposed modlflcalioñb.
). • OjeIauuU . soleyforthepwposedà b the
‘Aconsiders early r duct1ons under- 8DF ’ , 9 ’1e vvIU . WW CC “ 'k testing ofro ket ’ig n”. orazotórs ót a
section llsIflft% i k .-” . . any none nm ,it area w t -
8 J IWP.%1e • • - : - -
the BiTS and creditable for a” ' As a no W .U IMUI •• - was -
___ substantially Inadequate under section PUlPoses,
stated above, early reductions c n t be , - A .. fore program esaentlalio the.n*H i 1
used as creditable reductions for offset- i4a, I1WI1, u, UI lAW 3WJ , ..or seourity as certified In writing by*e
purp o s e stotetesylim ltationj - - appwpriatsdepartmentsandagenciep
- • - Act. Agnhi , section 173(a)(1)(8) of the Federal government. Also, th.
____ - -source mustha veusedaflreaaonabli
the actusent of jggo. growth areas. Where a growth . - . - ° o ts. all available -:
CAM, the Act provided In general that. allowance Is no longer valid or ‘ n” t , offsets must already
51st .. could establish a pollutant-. -- - bq establiehed, a propoled major new - be -
specific allowance for additional wth modified stafto*y source In a - - -. to the source. Once these. -
In any dealguated nonatt in nt area - nonat”'” area Is required to obtain criteria ‘ i”
by controlling existing source emissions e uiuIons O b on a case-by-case-- with an alternative measure. lmposed’by
beyond the amoimt of reduction - basis hi order to obtalnumstructlon - 1eP tmS ‘°- - • -
required todenronstrala RFP. Sited on - approval. : - - .,::. --offset any emissions Increases nof ; ,- . -’ :• -
them d d1D ea ac. & iofex 1stIeg . . A FAte - -. directly offset bythe source.
sr on174bI5)o ( , - IAUI3 k l IIEWaUVes - lieu of requiring alternative offsetS
Act provided thatStates credit - . Before the enactment of the 1990 measures, the permitting authority may
xpresety LI-a4ffy and —-4f r the - -. CAAA,’sectf on 172 of part D contained a impose an emissions fee to be paid to,
a 1 - .es . fany. of eny pdllutant; provision requiring thaLin the case of and used by. the Slate to max 4 ” '’e - -
width will b. from the- Implementation pianO that could not - emissions reductions In the area of the -
construction and cperatioaof major.new -____ ate ItV In, ,iónt of the NAAQS test facility. Sect1 173(e)(4j caps iucW -‘-
or modified stadonarysoerces!-In a eIIXOSIe ci-carboá-iñoâo,dde by--- -’ tees at 1.5 times thecost of atatlonary - --
partiimla, amatthtm.iit area. Before Deolmber 31.1982. suCh plans must - control coets adopted In the area durIng
.i - r f ‘ - theprev loussyear s . . - .
-------
a Ex emplio s for Stripper Wells
Section 8190, the CAAA provides a
hinited exclusion for activities related to
stripper wells, where suck activities
uj In certain designated
nonattainment areas. The statutory
provision as written applie. to the
production of oil ornatural gas from a
stripper welL and the equipment used In
the exploration, production,
development, storage and processing of
suck stripper well oil and natural gas.
Stripper wells are low-production wells.
Oil stripper wells produce less than 10
banelaofollperdayandnaturalgas
stripper wells (as deSired In the
National Gas Policy Act 15 U.S.C.
section 3318(b)) c ’not evceed an
average of 80 .000 cubIc feet per
production day during • 90.day
production period.
.Whlle still subject to the general
requirement. under sections 172 and 173
of the Act for NSR nonat’ 1 ”nt area
permits. Including requirements
applicable under those sections.
pursuant to subpart I of part I) of the
amended Act, these activities are not
required to satisfy the additional.
nonatt I,m i t area requirements
enactedundernewsubpar t s l.3,4ands
ofpartDoftheinn.nala .dAcLSec t lon
B l9of the l i l O OCAAAIhnIflLth ls/
exclusion to PM-b, two” , or CO
nonatt l ,ii .i et areas d.slfied as
marginal, moderate, or serious (and
having a population of less than
350,000). (subpartS of part D provide.
no additional NSR requheinents for
sulfur oxides, nitrogen dioxide, or lead
nonattaInm nt areas.) No exclusion
from the additional requirements of
subparts 2 through 51. provided for
serious PM-10. ozone or CO
nonattainmeut areas having a
population of 3*000 or more, or In
severe and extreme ozone -
noáattalnment areas.
a. OCS source Applicability
Section 801 of the 1990 CAM adds a:
new section 328 to the Act entitled “Air
Pollution from Outer Continental Shelf
Activities”. This section cootalns
provisions pertaining to the control of -
air pollution from OCS sources. These
provisions necessitate a revision of :
Federal NS regulations under both the
PSD and NSR nonattalnrnent permit
: programs to fadlitate Implementation of
OCS regulations. The OCS regulations-
will be proposed In a separate EPA:
‘1ionssrdcodWed C RpartSSb
The reader I. referred to the eparate.
OCS proposal package for more i eciflc
Information on the OCS rules.
10. TrIbal Land. Applicability :
As ‘ iIr is ..d more fully In section
v.a. of thi, preamble, the 1990 CAAA
grant EPA the authority to treat Indian
tribes In certain respects as States, and
specifically allows Thbe. to develop
tribal Implementation plans for
Implementathig the NAAQS on tribal
lands. like SW ’s, these plans must
Inc lude ill Implementation requirements
set out In the Act. Iududhtg complete
NSR programs for constructing or
modifying e dstlng sources located on:
tribal ta ds . FUrther guidance on the
bea i mentof ln ’ I.nthbëswjflbe
provided a. pert of a separate
• rule bb g required by section 301(dJ(2)
oftheAct. . . .
11. St&’— ’ ’y Source Definition
The 1900 CAAA added a new
definition cf”staH wTy sOfl_TOV’ In
section 3 0 0(z) of title UI of the Act, and
amended the existing definition already
contained in section lI1(a)(3). The
addition of the new definition appears
to strengthen congressional intent that
certain internal combustion eug ó .
must be subject to control under State
permit programs, while requiring the
exclusion of those Internal combustion
engines which fall under the newly
defined category of”nonroad e ginu,”
Congress authorized EPA to establish
emissions standards for catc les of
nonroad engines that are deemed to
contribute stgt’ffii ently to pollution
problem.. Seth authorization preempts -
States &om further regulating such.
sources of pollution under the stationary
source permit process . The EPA
presently believes that most In” I
combustion . ‘iglb . toed In stationary
applications should be subject to the
State permit process for stationary
sources.
I L Temporary Clean Coal Teclurology
Demonstration Projects
Section 415(b)(Z) of the Act
provide. nn,is , certain conMtlons an
exemption from the part D ze . k ents
of title I for the Installation, operation.
cessation, or removal of a temporary
clean coal technology demonstration
project. Section 415(b)(1) ip.rffi i . that
clean coal technology projects are those
funded under the Depar nent of Energy.
Clean Coal technology apkwprlatlons or
, bnltar projects funded by EPA and :‘
limits the applicability of section 415 to
existing faCilities.
Under sectlóu4l5(b)(2). to qualify for
this exemption, a temporary clean coal
dcmonstratlon project mustoperete for
,no more than 5 years. The project must
also comply with any.applicable SWfor
the area In which the project Is located
555
and all other requirements foe the
att ”4nm’i ’t and main . n ”’i of anrbler4
air quality standards, both during and
after lbs pmjecL Section 415(b)(4 1 .- ‘.
requ1re .EPAtoIs.ue,uj ‘. .‘
inpmtive ridhi g . to
exemption. As required, EPA Lu. .. •
proposed such change. to the rules for
steam electric utility units. The..
propoied a4 * iges were published In the
Federal RegIster on June 14.1991(50 FR
V830). Readers are referred to this,.
notice for more details on the
applicability of this exemption. Under
section 415(bj(4), this. rules are limited
tothoseareaswhereEPA lsthe
permitting anthcrily.. Whiize the State Is
the part D permitting authorlty the Stats
may. but Is not required t adopt and
submit to EPA fo, approval rule changes
incorporating the section 415(bflz) - : -
ex e rUoni nitsS lP.- - - - - -:
13 .FaUUretoSubmitNSRRnlesBy -
Stat m 1 t o ryDead In n.-
TheiseoC Are ulpeStatesto - -
adopt SIP revisions sub jectto EPA -
approval that Incorporate the new -
preconstructlon permitting requirements
fmnewcrmodIfledsouu . thatwere -
discussed In the preceding sections. For
Ins”‘”oe , new permit rules for PM-b,
nOflittt lnfnI i t areas must be submitted.
toEPAbyJun,19n wiuleifor.
ozone noiiat Ifl1 ’ ’1t areas must be :‘‘
ubmiftedby New IS, 902 new
rules fur most CO noaaPalnn .i t areas.
ared e3 frâ thedateothe.....
non&sAlt IIl d e1gnatIóir. The EPA. ”
huprev louslyanicmncedltó
Inte taUon that the new NSR -
requirements did not go into cffei t with
passage of the 1990 CAAA1mt rather
become effectlve In accordance with the
schedule for State adoption of SIP.
revIsions (see J. Selta “New Source -
Review (NSR) Program 1 ansItIonal- -‘. -
Culdanne,” p.O (March 114991) —
(appendix D))., ...- . -
If these deadlines pass without States
submitting NSRvevIsIons. EPA may
Impose sanctions on delinquent States.
Specifically, the Act (In two separate
provisions) graflts EPA the authozlty.ta,
Impose sanction, based on several
different types of State failure. Including -
a Stats’s failure to submit a SIP or SIP
element or a State’s submitting an
In”drquate S W or S W ele’nent (see
section IV.B.2). The nctIou
redm dng a State’s highway funds -
(se on1X1) )orI eislDg --: -
emissions offsets (to at Ieast2 to 1)-for- -
dew and modified sources (section
179(b)(2fl. In addition to these general
sanctions, seétlou 113(a)(5) provide, that
‘when the “1nI hetor finds that a -
.State lsnotacting lncompl lanoe with
. Federal Register I VoL 57, No.74 1 Thursday, April 1& 1992 / Proposed Rule.
-------
Federal Register.! Vol. 57, No. 74 / Thursday. April 16. 1992 I Proposed Rules
any requirement or prohibition relating
to NSR. the Administrator may issue an
order prohlbftlng the construction or
modification of any melor stationary
source In any area where such -.
requirements apply. In States that delay
In revising their SIP. to Include the new
preconstruction permitting requirements
by the statutory deadllne EPA may
exezclse this authority by proceeding’
under section 113(aJ(5) whenever a :.
particular new source attempts to ‘
construct without meeting the NSR
• reqidremente added y the 1090 CMA.
orby Issuing a general construction ban.
As en alternative, th Ailmlnhfrator
• could lund a áontlngent order
piobibiting càsfructfonof any major
,newormodlfledsourcethatfailedto
oblalnapernilt that met the amended
statutory NSRrequlreinents. The EPA
will provide additional information on
this Issue in Its NSR regulatory package.
In addition to Imposing statutorily
required sanctions, EPA 1 also required
by the statute torpruinulgàta a PIP when
It finds that a State ha. failed to make a
requlred.SIP submittal or has made an
Incomplete submission (see section
•IV.C)pursuant to thth authorfty EPA is’.
dev6loplng revised NSR regulation. that
• would lnclude,et4ocFRpart5z.a
Fed NSRnánattalnntent permitting?
program hit EPA ( c 1 the State purluant
• to a delenàtlôniereement ) could
• Implèirtu a I iP In those States that
faIlth subm1tNSR regulations by the
.tatutbry dei llIn.,s Beãauie of the
Importance of the increased offset -
ratios, reduced sour thresholds, and
other NSR changes to States’ overall
- attalnthr’t effort. EPA presently Intend.
.to lipose this NSR PIP on any State that
falls to adopt Its own NSR regulations
within the deadlines estabH hed by the
f AcLlfladd lUon.oràtll .uchlimeasthe
laãeEP inay Impose any Of
theianclions Identified above. Of :
courae, once It iecelves and approves
the Stat&s NSR regulatlons,-EPA would,
LUndm odlnary thcumstiii es, withdraw
. theFIP aid any eanctlonó that may have
:. bee 1inposed..:
• ..
*D. Subpart 1/Se tion 110 (to th
‘:Extent Not Covered Under Pollutant-
dSu) c—:.
s ètIonsTA) through (M) of Section
11O(a)(2) set forth the.elements that a
tt*inJn order to be fully
1*afl2).
‘ cftheumen4ed Act-
.f:i-;.:!, .;-
the
subsection(BJ requirement
that 011 measures and other elements in Act includes the pie-amendment
the SIP be enforceable. The amended subsection (F) requirement that States
provision specifically authorizes SIP’s to - ensure that the State and/or local
contain certain nontraditional - governments have adequate resources to
techniques for reducing pollufion— - Implement the plan. This includes a new
economic Incentives, marketable requirement that the State ensure that
permits. and auctions of emissions ‘ nothing In the SIP Is otherwise .
rights. The EPA reads this language to prohibited by any other State or Federal
require even these othermeans of ‘ --v - law. Flaqily. clause (53(11 1) adds a new
achieving reductions to be nforceable.. requlrement- .that the State retain
Section 172(cli6), one of the general SIP- responsibility for ensuring adequate
requirements-for nônattalnment areas,- Implementation In cases In which It
also Includes this requirement In - - relies on local Implementation of plan
essentially the same language. , provisions. •. - •
Subsection (B) carries foith the pie- $ubs ct1on F camies forth the
amended subsection (C) equlrement tO requirements of pro-amended subsection
monitor and compile 4ata on ambient j tJ at concern emission monlt&lng.
air quaIIty The EPA orically h Tha EPA proreqigated monitoring
promulgated regulations In part 58 of the regulations at I 51.210 of the Q’R and In
CFR, Indicating the neceuart data appendix P to part 5LUr der section 193,
States need to collect ____
the existing regulations s”nI’In effective
of their SIP. The existing regulations - -- to the extent they are not Inconilstent
z.un n In effect pursuant to section ‘- with the new law, until EPA elects to
to the extent they are not Inconsistent an d them.
with the new law, Until EPA elects tO. P ded subsection (C) also carries
amend them.- • forth a provision of pro-amended
The enfuccwent prOvIsions f - subsection (F). States must provide
amended subsection (I)) are now kinder authority to bring e ergency actions:
subeecti on (C). While this provision (comparable to that antcd to EPA In
retains the pree dst g requirement that sectIon so In cases where a óouroe or a
the SIP Include a pro-construction - w I’IPo ource present an imminent
review for all new and modified emian erment to the .
staIh, .t ry sources, ft deletes the- public healths The EPA has alio adopted
prevls provision’s specific reference - regulations re ñg such authority In -
topze!consfruclion review of sources
subject to .NSPS. - - - - CFR 51.150, and these regulations will
Amended subsection IDlso contains remain effective under sectIon 193, to
____ the extant they are not Inconsistent wIth
provIsions aentIallc ib. new law, until EPA them.
unchanged. It lncorporatei language - ___
from pie-amended subsection - - Subsection (H) was not revised by the
requiring States to Include SIP amendofents. It still requires States to
provisions prohibiting sources from provide for the revision of their SIP’s
emittIng pollutants that ivould - (commonly referred to as “SIP calls”) In
contribute . gnfficantly t , two d .wstancrr If the NAAQS were
ntn . .t. ( wIth - - revised, or If EPA made a finding that -
maintenance of the etandâd, or - the plan was substantially inadequate to
Interfere with PSD or visibility.” - - attain the standard. New section -
SubsectIon(S) of 110(K)(5) gives EPA the authority to
Incorporates one provisiOn from pro.. Ismm a SIP c iii. - -
amended subsection (P3--clause (BUll) Amended subsection (I) add. a new
reinforces the sectiOn 158 requkimeit requirement to section 11O(a)(Z). It now
that the S W contain certain - states explIcItly that any plan or plan
re4ulrements as to State boards. In revision must maSt Lbs applicable - --
addition, clause (Eli) of thiamended — requirelOnts bf par t 11 (provIsions
________ - - -. - - re atlug to nonattalnment areas). -1-
___ Although this Ii a new sectlqn 11 aX2) . -
- 50’.to - --isto . p,o isiee ped *bitto st.tio .thy provlslon.Jt do hot add a new -
sOw .s frCuie It*III3 so sir paltutast to smeunt - requirement to the Act as awhole Ilie -.
Width Will ivTwt SItSINOSOt ” I I ’ SDOthSV S i lts. - SIP’s for nonattilnrnent areas Save
The n m d versional this language require. aW
e.we. always been re piured to meet the part D
CootrIbute , . I requhementi.- - - -
are erS i lteJL. .. r. EPA Interpreted th. two - - Subsection (0 has also been retalned
sniended I 5I’8Da8e II’JJI. manner IMLCU*WUI - it. je dsthjform.It continues the
srgesee.d Ia-th. mesd.d Mt See A1ifoilisdon- ülre t that SIFe meètthd - -
Coafrol P1st ,. U.S EPA, 739 F2d IWI, rosa-as -
( 5th cirisss t.JheSea.te Report, C eu noted applicable PSD and visibility - -‘ -
thstth. pre ’smended l iigusge pieen t.d sn - - - requiremints and the associated
Impossible standard sod noted th t I twas adoptIng conanitation and public no tifIca tion -
.IgnIflcs d co@t,Wut ’ to dully wbe • violation provisions of sections 121 and 137. -
of that requirement would acc Ir.S. Rt 1 No ms.
101st Cong.. SM pe..,21 (1959). -, - - - - - -. - respectively.’ - — - - -
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Federal Register / VoL 57. No. 74 I Thursday . April 18. 1992 / Proposed Rules
13557
Aeended subsection (K) reinforce.
EPAI. authority to require State, to do
• air quality modeling. Although this is a
section 110 (a)(2) prov sion. EM has
always bath the authority to require
appropriate modeling. This requirement
wilibemet if the S submits its actual
modeling In it, SIP subutittaL and EPA
determines that the submitted SIP
measures are approvable. The EPA -
currently does not have regulations
concernIng modeling for the SIP ’•.
dcmonsfrstion purposes.U but has
Issued guidance (eqg., EPAa CWI II Ie
enAfrQua l i t yModelIn(( 1 wJ
The pre .smencted provisions
concerning permitting fees has been
carried over In subsection (14 Although
the language of this provision has not
changed, in light of the new permit
provisions of the mU+d Act (title V) 1 .
these requirements could have a-
different Impact from under the pee. -
amended Act..
Amended subsection (M) Is a new
provision requiring States to provide for
consultation and participation by local
political subdivisions affected by the
SW. Thi section builds on several other
section 1*sli2) requirements that.
reqvke consultation and participation In
regard to specific SW efr ncnts .
2.Couformltly ..
(a) Cenesnlrequfrement& SeG&u
176(c) provides the framework for.
ensuring that Federal actions canfor r to
air quality plans under section 110.
Undersectlon 176(c). before any agency.
deparmient. or Instrumentality of the
Federal Government engages In.
support. In any way. provLdes Ri s w4ul
assistance for, licensee, pe mIte, or -
approves any activfty that age has
an affirmative responsibility to ensure
- that such action conforms to the SIP or
pip. .:. • - .
“Conformity to an thplan .,nt*Uon
plan” Is defined In section 176(cXl) (A
and B) of theActas neanIng
“conformity to an Implementation plan!.
purpose of eliminating or reducing the
se?verftyandumberofvto)a o sof e
national ambient air quality standards
• and achieving exped toue at’uinmel’t of
• such standards; and that such actlvitles
wil lntcaaeor l r ibutetoanyvrcw
viotatibu of buy standard In any rea;
Increase the frequency or severity of any
existing violation of any standard In any
area; or delay timely atlalnm.nt of any
____ ..th dsUui rvis La
____ - .. fai
5II— Lmg th. fd qjsr,LEU a bs . far.
wImfa &1. delI, 1 ThIs MW r Ii (
m1a i mw. of the
s ,a . msim fa, P wpo... sad a. iMaecs for
standard or any required Interim
emission reductions c i other.milestones
In any area.”
The Intent of these provisions is
explained in the Committee Report
Though the evsluatloo of the air quality
Impacts of proposed projects before they are
undertaken, the coefosmity provision Is
intended to loiter long range pL.i .hig for the
ofair quality
standards, and to users that Federal
sgencles do not take or support actions which
are In any way in n . .istent with the effort to
achieve NAAQS or which fall to take
advantage of cpportmitles to belp the .
effort to achieve the N&AQS : -
toped . that the law o f mityprovisices
wWbee spec laflybjlpfuUnauur( agthatsfr
quality consIderatIons play agreater role in-
Federally supported transportation plf.n!mIv! 5
efforts, which ma have a ma)oe hnpdct on sir
qtiallty and, to some a .JypoIlsted areas,
are m ” ”’ t a. part .1 the peu 5 .a f.
achisyleg the NAAQS (‘Corarnitle. Report,
pa gs )
Section 176(cX4) required EPA to
promulgate general criteria and
procedures for determining conformity
by November1991. In the case of
transportation plane. p!ovams, and
projects, the EPA Mmlnlatrator, with
the conmurence of the Secretary of
Traniportatica. was required I -
promuJgat crlta .la and prucedur for--
“demonstrating andusw I u g - -.
conformity by November1991 . Section
176(cX4XC) requires EPA to Inclqde In
such procedures arequkement that each
State submit to EPAand the DOT by-
November19 arev lsIontothe
Impletnelltatlou plan that Inchides
criteria and procedures for . as .sIng the
conformity of any plan. program, or
project subject to the conformity
requirements. Until this revision Is -
approved by EPA. existing conformity
provisions In the SIP ramahi In effect.
The criteria for determining • -.
transportation conformity ultimately
require the existence of SIPs which -
contain estimates of emissions from
motor vehicles. Until such times as EPA
approves these SIP’s however, there
exists an Interim period with criteria for
determining transportation cnnfn,mlty
which are different from thos. that will.
apply after the SIP I. appzoved.-The.e
interim criteria are contained r section
17e(cX3). The EPA and DOT jointly
Issued guidance on transportation
conformity for this Interim period based
on these criteria hr June i 1.
• The EPA’i transportation coqfornrlty
• regulations are still under development,
lncoordlnatlon with DOT. On October
24.1991. EPA and DOT jointly Issued
further guI nce Indicating that the
Interim transportation guidance Issued
on June 7. 1991 would continue In effect
until theagendes promulgated final
conformity regulations. It Is unlikely that
final regulations will be available
significantly before November1992 to -
allow States to submit SIP revisions
addressing conformity by November 15,
1992. the date the statute requires EPA -
tocal lforsuchsubm ltta ls lnfts
regulation.. The EPA consequently
anticipates that In Its conformity -
regulations, ft will establish a later date
for such SIP submittal, In recognition of
theImpossiblllty of Imposing the 1992.
date. The EPA Intends to provide States
with a reasonable period to develop.
conformity regulations, such as the year
that Congress had In mind In section
176(c)(4)(C). The EPA notes for
clarification that States are under no
duty to submit conformity regulations
until EPA promulgates Its regulations
and estab W a ) . 0 a date for such
submittal.. Det ’fl .d guidance on the
overall conformity program will be
provided In later rnmannWmrg actioni. -
The gal”, below concerns section
176(cXIXB)(ffl) as applied to
nonattainment areas.
(b) Establishment of emission budgets
-for f r an ortotlon-zelated act loris in
orone or CO nonottalnmentar.as . In
general, Federal actions may not delay
timely attainment of any s’ dard or
anyzequlredlnterlm emission . -.
teduclions or other milestones Ii any’
area. More specifically, after the Interim
period, conformity annnt be detãinlned
for a transportation plan orprogram
“ ni.. . a deterrdnation has been made
by the metropolitan planning:.
organization that emissions expected
from lmp t ”mentatlon of such plans and.
programs are consistent with estimates.
of emissions contained In the applicable
SIP. The EPA interprets theeeprqvWons-
to mean that the combination of ‘ -
highway capacity expaitsion, highway - -.
extensions, support far transit, and
TQfs In th. transportation plan and - -
program must result In vehicle emissions
that are not In e oess of those contained
In the SWd demonstration of REP and
attainment, despite any difference that -
may exist between the area’s cuimnt -
and forecasted popu1atlcn employment,
and travel demand ajid those that were.-
øssumed at the tiara of SIP preparation
. adoption. lnothbr words, th
conformity provisions envisIon that the
SIP will reata an emlufosrs budget (for
the criteria poUntant and Its precursors)
forhighwaytebllesándthatthe ;f,
- transportation plannlngprocese will be -‘ -
required toproducè plans and programs
that will result In emissions within that
budget. Pot relonal pollutants (ozone.
N0, O In some areas, and PM-lOin
some areas) the transportation planning
process Is no(requfred to demonstrate
-------
again that the budgeted emission level
will result In attainment. (For pollutants
capable of forming hot spots of -
nonattainment. an air quality
determination Ii required.)
(1) Areas required to demonstrate
APP and attainment. For nonattalnment
areas that are required to demonstrate -
RFP and attafnm t by a future year. the
SIP revision that contains those
I.I I*nttratjons will necessarily contain
statements of the motor vehicle ‘
“*4IOna for future years on which
those d o traUons are basmLThese
statements will become the emissions
budgetsthatw lllbeusedfor later
conformity determlnaftons. Budgets will
thereby be defined fore number of
future dates, dep ’ dIng on the RFP and
ehowings required for the
area based on Its nonattainment status.
States should make sure thaIthese
budgets are stated clearly and
unambiguously In the SIP. For exampls,
assumed temperature Inputs and the
geographic area of the Inventozy must
be stated so that comparisOns can be
made later on an accurate basis. The
RFP milestones will usually be deflned.
In terms of typical seasonal weekday
“.slons, like the base and periodic -
inventory. Attainment d !inonafratlons
may be based on Individual episode
days.howevè.lfeó theSIPinnst .. .
contain an atta1nm” t year Inventory
expréssedonthesamebaslaasthe..
other milestone inventories. . ..‘ . ‘. .
• The 1090 CAAA allow a lnglebudget
for a nonattainment area for a given
criteria pollutant or percussor. However
States have the option of specifying the
budgets in more detail or disaggregatlon.
• For example. an ozone attainment
demonstration using a grid model will-
:contaln estimates of vehicle emissions
for many small grid squares. The SIP.
nay provide that only the sum of vehicle
émIá1ons from all grids within the-
nonattainment area will apply for-
pwposu of conformity determination,
;orltmay divide the area Intorsubareas
and establish a budget for each. This
cpprdach wduld provide additional
‘; se ur c thai transportation plans and
programs will result Hi emission patterns
that will produce attainment. Such an
approach will of course constrain the
.kanaportation planning process, and It
y 141 er be found useful for the State
-to submit a SIP revision showing that
5 otb din%ijb tj6n of emissions, or.
_____ I. ai
A SIP may-.
aIso puiu.rld foreItesnatjve emission.
tsflestasii comoKan and1nr
emissions. Finally, a SIP that
demonstrates a margin of safety with
respect to milestones may Identify a
budget for conformity purposes which is
higher than expected to result from the
measures In the SIP but Is consistent
with the milestone and attainment date
requirements. for purposes of providing
the transportation piann 4 ng process with
a cushion for unexpected growth or less.
than•expected effectiveness from TQil ’s.
This sort of cushion for unexpected-
growth I. only a suggestion and EPA
wants to affirm Its cmifidm.c , In the SW
plann t g process . This does not rI aitgs
the substantive requLcments for SIP
appumil. however. - . .. - -
(2) Other non ttairimeiit areas.
1 ansltfonaL submarginal. and marginal
ozone nonaI’ ’ ’t areas, not-
violating CO areas, and moderate CO -,
areas with desIgna alues of 12.7 ppm or
less are not required to Include specific
atiainment demonstrations or to show
complianc, with interim milestones.
Consequently, they are not required to
contain statements of future ainlualons
which could be used as emissions
budget forlaterconfonnity -.
determInatIons. Nevertheless, EPA
pJJ yp tlia e Intent of section 176(c)
Is to make conformity a inaanhgful -
process forthese areas, rather than to
release the transportation pLinnlng
process of all raponalbility for area-wide
motor veIuIcle. . ,nla,Ions. On the other
hand , the need to provlde.emlsslona
criteria for future confOrmity:
determinations should not defeat the
evident congressional intent t a
temporarily e case these areas from
having to develop and Implement
control strategies beyond vehicle fleet
turnover, Federal measures, and
- required measures specified for them in
the Ita cle a r t.
Congress did not intend these areas to
be subject to any serious constrainton
VhfT and Industrial activity growth
prfortothedateonwhlch they are
vulnerable to being reclasslfle4 for
failure to attain. To satisfy these intents,
thçi e States shoula choose from two
options a described below, and clearly
Indicate th 1r selection In theS1R
Thu oPtiOfl The State may elect to
extend the Interim conformity criteria of
section 176(c)(3)(A) for the entire period
prior to EPA approval of either a section
175(A) maIntenance SIP or—following
• bump up—a SIP that meets R ) P and
attaInment requirements. These Interlñz
criteria would btherwlsd expire when
EPA approves the conformity SIP
revision deacribed In section IILH.1.a.
The most Important of thçse criteria Is
that the transportation plan and
program must contribute to emissions
reductions, Le., that lmplernentaiion of’
the plan and program will cause lower
emissions than If new projects were not
implemented. This option requires the
least analysis by he State, but
precludes transportation plan-caused -
Increases In emissions that might In fact
not Interfere with attaInm ’nt by the
deadline due to the large reductions
resulting from other measures. In thern
Joint EPA/DOT Intirlm conformity . -
guidance, thesó areas were Implicitly
placed under this option and will remain
there unless a SIP revision exercising
the second option Is ipproved:
Second optiom The State may ’ -.
voluntarily submit. as a S W revision, an
attalnn ent demonstration and . -
corresponding motor vehicle emiastons
budget, like higher cIasaIflq I aipas. This
may show that transportation plans that
cause emissions Increases are in fact
compatible with attainment, thereby
providing the tr nsportaUon plnn’zlpg
process flexibility to adopt such plane
later. -
(3) Maintez7olaceplan.MOreJpedflc
guldancm on the content of maintenance
plans maybeprovidedata datecloser
to when States will be preparing these
plans. For now, States shouldbe aware
that transportation planning in areas
redesiguated to atfahilment .
operating usda a rnalni fiauce plan will
also be subject to the emissions budget
concept A budget for motor vehicle -
emissions must be establIaIm ’ii In the
maintenance plan and shown to be
consistent with the maintenance
demonstration In light of expected
emissions from other sources.
(4) &nission budgets diwk g the
replath gperio4immediate!y
lollowing failure to meet a milestone or
failure to attain. Failure to meet a
milestone or to attain by the expected
date may be due to Inaccurate
Inventorying of 1990 emissions,
Inaccurate air quality modeling, excess
growth In nonvehicle emissions, or
excess growth In vehicle emissions
despite the cpe adon of the conformity
process. In such cases, the adequacy of
the emissions budgets for motor vehlcle .
Is called tall questlqn and nbw btdgets-
must be develojed.as part of the
replanning tI at Is requited by the 1090
CAAA. Until a new SIP Is approved or a
Federal plan Is promulgated, the
previous budgets will continue to be
applied for demonstrating conformity.
(c) Idenilfkotion and scheduling df
transpoi ation coat ri inepsures.
Section 176(c)(2)(B) requires that
transportation Imprpvement programs -
provide for timely lmplernentatlotz of
TC?fs consistent with schedules
included In the applicable SIP. In
13558
Federal Register / Vol. 57. No. 74 / Thursday. April 16, 1992 I Proposed Rules
%di n yL _ q fa xample,11ifferent -
combinations oLVOC and NO.
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Federal Register / Vol. 57, No. 74 / Thursday. April 10, 1992 / Proposid Rules 13559
eneiaI. EPA will allow emission Previous guidance Issued by EPA and specific emissions reductions milestone,
reduction credit only for TCM’s that are DOT in 1977 specific to section 174 was or for serious CO nonattalninent areas
fully adopted and for which a superseded by this 1991 update. The to attain the standard (sections
sponsoring agency has made an EPA will soon update Subpart M. 187(d)(3), 197(g)).
enforceable commitment of Its own: Intergovernmental Consultation, of the Section 182(g)(4)(A) defines such a
nevertheless, the provision regarding “Code of Federal Regulation,” to reflect State economic Incentive program as.
transportation Improvement programs the new section 174 requIrements. •one that Is consistent with EPA rules,
will be an Important aid to . co ___ - - - - the publication of which Is mandated by
Impleme t tiOil . Effective . - November IL 1992 (section 182(gJ(4)(Bfl.
ImplementatIon of this provision will SInce 1980 EPA has developed several AccordI to section 182(g)(4)(A), the.
require that SWs adequately describe programs to allow industry and States State pint may Include but Is not
TOre with respect to their design. . more flexibility In meeting stat Utory - limltedto, systems of emissions fees,
location, scope. scale, and ‘ . requirements of the 1877 Act. One of - marketable permit., or State fees on the
tation schedule Including thUS initiatives 15 the “IsIOnS sale or manufacture of products, as well
prior to full adopt1o Tk adlng Policy Stafr n.i t ( ETPS ) (51 FR •as Incentives end requirements to
4381& December 4’ ) . reduce vihicle emissions and VMT,
3. PlannIng remenb Including .. flaws source-specific SIP ievisloni for Induding any of the 1 7fs In section
Section 174- sources to trade emissions redUctions 108(O.r. • - -. . .
74, ptR!mh g Procedures, was’ aidits (ERCe) with other sources to - One such i Is-the acäelcrated
broade’ ed.b ensure that State and jc cal meet some emission limitations. All retiremet oIiel’ 1 ’ 4 - It Is estldtated
auth rltles share In the development. ERCS must be permanent, real,: -. f
jmplea .nIatiou. and elforcement of the quantifiable. (federally) enforceable, as 2b 1 ofthe vehicles produce up
SIP. This section requIres the State to and surplus (La.. not otherwise ne hled 60 percent ol th, total vehicle
certify the plaM organlzaUon end to foran a” I” ent strate97 or other e Ions. Because of lees stringent ’
Identify the specific State. Local. a already existing control Iréments) . emission staldards, deterioration,
regloual agencies that will develop, The El ’PS also allows States todévelop ___ ____
adopt. and Implement the eleménti of and adopt geniric emission trading . tampering nnbnaIáiew nce. old•
vehiclea aitat very high levels. An
the SIP. In addition, a new subsect on programs Into their SIP. To receive EPA acce t e’ated retirement program
was added to clarify that when a : , approval; a generic amlaJ trading- encourages the remqval and - - -.
nonatfnirunont area includes more than program mus ( contain replicabis’ ____
one State, the affected States may•... . procduree to ensure that all ERC’s meet do. n/recycling of tiles, oldès -
Jointly eqdedakplinnIn pr Xedura. the . i’ bi Ô in8 lndl 1duals 0 7
Statesarerequiredtoreviewand- .. A aedbelow.theCA A : . . ofthelr”oWcárs.AnIc’ dve1s .
update, as necessary , their SW pl4nlng Include several new economic Imtlve created for owners l mn arily frade-
procedures byNovember1992... •‘- . progranteas well às hangfr g 5tatetCi3 In thisitféle, weemlt inè
- Two options are generally a’v.ilable to langua thit may lead to nrodifica on: -. - •
States through sectlon -17t-To continue to existing policies, including updating’- The EPA believes thal an ac iheçd
using the planning organization -. -: - of tha El7aThe EPA has started work retkemefltPlugram canbq wilmp9tant- 1
presiouslycezllfied, or to certify a new - - to inventory potential discrepancies - Part of aria” jient strategy by: : - -
p 1 ” g organizatios. If a new planning be prov1dIn greater flexibility to Induitrj
orgAnI atlon Is certified, section 174 warranted, EPA would Issue a polity In conrplyhmgwfth ànlsulon stand rds.
requires that org,nl atIonto include . Interpretation of the E17S that EPA By this notice. EPAJi announcing the -
elected officials or local governments In. .- rise when applying the EI?9 forth. SIP avallabIlII of an Information docüm nt
the affected area and representatives of appr ovsl process - - - Of thO aoecla#ated ritirement of ehl lá--
the State air quality planning agency, -. The 1890 CAAA ncourage Innovation programs, as required under section
• the Stale transportatiol plpnning. .. - - thro .ugh the use of niazket-baaed - 108(f). Th. döcum” ’t cutlinesthe th rorY
-agency, the metropolitan planning - -- pproachès, not only In the title N acid behind acCáleraëed v’l’ 1 r e retirement,.: -
organization designated to conduct the - rain program, but also In tide i sip - - conii.h,i deshable elements of ügram
-continuing cooperative an - -, -- - -: pro’i islons Th , use of economic laaiga . and dJscusses the experience of
comprehensive transportation planning . inf endfl$ are explicitly allowed for in a pilot pr gr n spciisored by UNOCAL-.
process for the area under sectjonis4 of thO general SIP requirements (section - Co c.SqutheinCalIfotiiIs. - ‘
ftde23,U.&C . .theorgnn l z ation - - I10(a)(2) ) . thegeneral provisions for - Statarmaj Indedeicripp ge :‘ ‘-
responsible for the ei quality - - : •:- - nonattnb nent SW ’. (section 172(c)(é) ) . - programs In SW submissions. Sdappage-
maJntanance plam.ng process, and any- and In thO system of regulations far’- e lc 1ons reductlons.wIll get full credit -
other organization wltlirespönsibllitlee.’: controllingof emissions from coñsumèr toward SIP attalniniitt demonstrafLons
for d v loplag, submittlng or-. -, -. - or commercial products (sectloi - - To the extaltpermlsslble by liw, credits
Implementing any a pOcts if the SIP. - . - 18$(e)(4)). - generated Ifirougit s ap age prog 5
The EPA encourages the Stites to :- Beyond these general allowances for maybe used to meet air qua1ltj -
ertify either the previous ergenizatlofi - economic Ineentives. use or conildesing U itions-t .A t4 r! - “ : ‘- - - “ ‘- ‘ --
or a new organization well beforethe -. - the use of an option to Implement - Th. EPA Entjrpx s 182(g (4)(A) as - .- -- -
1 November 1992 deadline. Early - eco”om1cj cenUves,Is mandated In? - allowing ibrOad range itjna*Imi-bascd
Uc tiflcaUoa irIU be helpful toThe - - certain ceem.7beeecase. IncludeState.- stritegles. The State program Is to be
vailousagendes that must meet - -: - failure to submit a compliance - “nondiscrumna tory” and consistent witl
deadlines by this datt -.. - . • demonstratIon or to meet applicable - Inter-State comm rce laws (section
- Mthhionalgvidence ci the new - - . milestones for RFP for serious, severe. — i82(g)(4XAII. - - - . - - - - .- - -
section 174p ovisIons is contained in - and extreme ozone nonattalnxnent areas - The EPA’. economic in entive rules -
thmupd te of the 2978 Transpon ta 4 lio 182(g)(3) and 182(h)) end State are to Include modelpk. provisions br
Mr Qun3tyPl nirlng Guidelines Li 7 -EPA failure to submit a milestone - - permitted stationary so .es. area.-
.ndDO7 due in November iggi., -. - - - demonstration, to meet a required - sources. aM mobile sources,as well as
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.13560
Federal Register I VoL 57. No. 74 I Thursday. April 16 1992 I Proposed Rules
d ’ t specify bow revenues • . An accelerated vehicle retirement measures are reasonably av&lab)e lu II
generatedbythep lanprovlsjonsshaJl program, . • ; — .. : . areas.ItIsmore appropriate rorstates
be used (section 1821j)(4J(Bfl. These -. A program to cona,ut cars or fleets to consider TOt ’s on an area-speclftc
rules will address Issues audi as setting to cleaner fuels, and not national, basis and to consider
baselines, ban provisions, ‘Aprcgraintoexpandthe - ups of nteracthtg measures, rather
ailminbifradve requirements and’. vographIc coverage of Inspection and .than Individual measures. .
consistency with the this V P mItthig maInte’ ”ce programs. :. - . The section 108(1) measures should be
- Program, title VII rnhl .Iwod Monitoring States can allow slaHnnniy sources to considered by States as potential air
and Ccn pliance certification Pregram, use these reductions ouan Individual quality control options. FUrther, the list
and other provisions dlscnued- -: :. • basis to inset certain emission !duclion should not be viewed as exhaustive, but
elsábese ha thisnotice. The EPA .j-’... requirements or to generate tradeable rathà Indicative of the types of TQfs
I&I*IIt1y views these rules Ur nt e. Offsets to helP meet nsw-sui rcè v1ew States should cobsider In developing the
that 13 In’anded to encourage rIy::: requirement, where not prohibited by. ‘Q4 p Jou of their confrnjsfrategy, A
• t np4rmentauon c i a ,ria .nln .ntC. Ib. statute. : ;4’.;; -: :. . recent study for EPA Identified more
• Incenti potentially a,ofd ‘LSeclion lñ(cXl) Requirement farAD than 70 IndivIdual measure. within
• such faibres In Rci 1ljAvallaUe Vented Measures broad TQ.( categories that could be
• bopesthalt deewlustimulata -.-. ItrA( ,A1. .. . • -. considered aspbtentlal controls (SAL
1__ .i. .1. — ..k.. . . • •3. I.. ? ..
I wQ I 8 V* ” ” • - . . . -. . fl, P 940 . Inaddftioe, a measure
: = =
*S vo” e eUae.to . -the kni4s . snthlion of all MQ.fab evaflalJ. fc s given eyes sho ldbe
State failures In meeting RPPmIIe.trmee. d it7Ofl S! ,D9fla In n’Pnt ftI5 to available for Imphnientatlcn in the area
The EPAw1Usolicftcn .nm .nI.oiiIts .. . considergu nvmmuw wnuua i ugi fIoâal th nsia ’w ,-:,
• economic Incenffye irogram rules at the. . SdOP In1pI O LocaIJ tnnce, relevant to the
time of proposal ofthtr ’4° ’n lc1ng,.. .• suz !s u az ieaso?bly available reasonab’ esof any potential control.
• The EPA encourages the development .‘ ‘ 1mP wvutau0fl ‘ u n area as • .•
of economic Incentive roeramI that: i- components of thejree s a’f m..ent. co stiiat t be made
_
. • ymeâIts anti
reguI Uon& EPAblia th it nIñrIofEPA’s compllcate&and Arécogolzesihe.
the Imp? tioiófe mIe — past 1n q.retation and the rationale for
Inbentive prograius must abam t the the “ “bee toibat -.
2 r r____ t.flI - • .a .. ‘ ‘ I’tetfon .. -• area $ 4I 4 V I . • - -
: P1nall) rsorany
• - . . provljj th e’ endédAãt
nn iUân po tMo máljjlefstnriiwmi i’ ‘ Its guidance at 44 FR 2027Z 20875 (April belIeve that Congress In
o . genc fsveiy ‘ : • , 1979). The EPA there indicated that . RAWiequhernent to compel the
supportive of efforts to frehhafii ‘WhehameuuzeIthatmlgbihafactbe adoption of measures that are ab,urd
reductfons mongmobUe’áii ’ available forbnpieinentitáha the < foroeablecrhn 1 .tticabIe(see 55.
iincei tothie, iats hfradei j jn ’ I ncnaaI invna ,1t area could not be’ • . FR3832 September *1990).
i resu1t In a le sc s yii1xofOathsuiG lmplementëd.on I sthedi ’kthét would- . The EP& th f concludeq that It
ttalfl the standstds and *Ould lied the advance the datifarat” ”t in the Is Inappropriate to ureete 8 pre .uinption
relevant CIea Afr Act ulrementi ‘;- arearEPA*ould net consf deft • - that all of the measures listed in section
EPAwifi work With states an d ressonabló to require Implethentatlon of 106(1 ) are parse reasonably available
• Individual lources to I such beasures. The EPA onIinee, to for all nonattainment areas. AflStates
- sich I taUbnoftheMQ.f must, at a inlidmuri, address the section
• 1080) measuree.The EPA believes that
Alê Inthe1979gu1danth, EPA. at least same of the measures peflibe
wblch . ereateda pje1uii iUpa hat.fl of the . reasonably available focImpIP nmItaffon
be met 5 TCM’s listed In section lbe(f) were In many nonattithnnont ar4aiWhereá--
RA Uáe all arias, and jequired areas secIon 1C8Ø)ieebsure Is reasonably
• cally’Jusiify adOtnruiin tfon . avntt ¼ sectIon 172(c)(1) reqi lies lt
aeasurewasnqta asonably • ImplemantetIo - - - ‘• -
It will fssuei based on local cfrcijatances. • The Senate vzana ers’:exp Ianadonof.
Inc live rules EPA ivH .Lcted that gnJJance at4O . the new ranepcztation Ooniiot •.. -
FRn n&gan u a r 2z ,1oe1J - • - prpvlsl .os Includesa etafement . -
wage states taconsider sncb- :;1fowiver based cperience wlth - endorsing EPA ’s 1979 guIdance on
‘ kid ., as they develop their state ‘: ‘ IinplementhigTQ.4 ’s over the years, : RACM as recently construed by the
• Imp l e tatIá plans. - “ EPAnow believes that l aI ‘ • Court of Appeals for the Ninth Circalt In
• Mobile soOrce programs which could dromstanceivaryto udia degree • -Deloneyv. EPA 898 F.2d 687(1990). 136
- .8 nCrate tiadeeble àeclits lnduds, but from clty-to.dlty that ills Inapjuroa .rlate Cong. Rec $10971 (daily ed. Oct 27,.
• fO tiotilndted to*. . - -- - - - - topresuine that alt sectIon 108(1):’ ieeo). In that case, the court held that
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Federal Regrster I Vol. 57. No. 74 / Thursday, April 16. 1992 / Proposed Rules
13561
PA w’. s bound loapply ft. then- -. Statesadopting the 1EV standard .. The óint for the RACM analysis for each of
applicable 1979 RACM guidance by its EPA plans to complete work on the the PM-b nonattainment areas In thern
owntegins.whrchczeatedthe med nJune Ia9Zatwhlthdmeftwfl l naUon.ThIsIsnottOsuggesttha ,
presumption that all section 108(1) be made available to States and the should (gnore such measures. In those
measures were reasonably available. public.. . -•--. - ;-. .; PM-b nonattaInm nt areas where
However, the court did not hold that the The EPA has recently been asked mobile sources do s g ’fficimtIy
statute required such an Interpretation whether a State, which require. under contribute to thi 131-10 aIr quality
of the RACM requirement, nor that EPA section 177, that newyebldes sold In the problem, consistent with the statement
could not In the future revise its MAQ4 State comply with the California ;. abov reg rdIhà iiclion 1080) measures,
guIdan. e - The EPA bee to alter standards, mt t also requfre thatThose the Stati must, eta minimum, addreis
it. past g .MAnre consistent with a •. yphb4p . us the fuel or fuels upin which the . ectk n 1080) measures. ShnflarIj . It
reasonable Interpretation of statutory they were certified as meeting the •.‘. ‘ follows that where a actIon 108 (f )
requimments In light of bIstorl a1 •. . California standards. The EPA Is ‘measure Is reasonably available,
exper i snce lmpkm”linglO.fs, . cj . nn slegalandpo1fcyrev1ewo ti0ns189(a)( lXc)aridl72(cXl) :
The legislators who cited the Ioney this question. . v r r -- - require Us liptementation,
v.EPAdedslonbadlcbbfedInthe ,. .‘ .PM-10IsdIfferenIfromO,andçD ’Iri. . .‘‘ ‘
Senate Committee bill fore equkement that here may be mityPM-10 areas . ‘ . .
that all sectIon 108(1) measures be,, . where mobile source do not: . . Section 1W(dXS) of the Act specifies.
Implernented lnseverecrnna ..•. ffl . for.:
nonat Im .I t axea&ThIs poeltionwas. n nroblenibitbejjt.b , . I •
however abandoned In the fln l Sairats SectIa teqof the :
• bilL Any sta t ”” ' n” hi the subsequent. . to 131-10, recagnIze .thfs for inch
Senate debates concerning -- distinction. Sectlon’190 speclflàtbosi •I
Implementation of all section 1080): source categç*les for whidi EPA 1 . d l scuss lon
measuzeq therefore do.rzot necessarily required to lime EuI.hiTJv on of the xe 1 ‘ i ke fa
reflect the views of the Senate as a • Sectiol 190 0110 ptoi!des that EPXshall P1 ’OVIdd In M)JUflV4 (Al)141 2!. iagir
whole, let alone the entire Congress. e amI th r%ateutirfés bf.ouràs de,crlblógthe notlficatlóno1 States that
Finally; EPA also notes that It belleves. mint of the : cetalnPM -i SOa ai 4 Jéad anal
- the court laDr!oaeyv.EPA . • ••— idetermmnewhèthei should ede4 ted.. v ...
m lscharad e r i sed E PA’sgufdn c e ljionj • ‘j ••• SectionlO7(dJ(3XE)spedfleithC
respect The court stated that hilight of meeded. .. conditions “'l’wbIth the ” - •
the previous preauraption that section. •.. Mn ”frator m y approve a’ “
108(f) measures were reasonably;. • ‘the Governor’. i equdstfsubmIlted Ii
• available, “a ritatacan reject one c t.- ‘. . a rdance; dth s cdnn b07(dX3Xl )J ’
these measures only by showing thatthe . . . for .l dngan area bern
masure either would not advance • the 13J40 . nonat’ ” .”t to attslnment Thà —
attainment, would cause substantial. -... ivblemand, a . . - - condidoesare as fclIow’:. . - . .1
widespread and lOng-term adverse. • ‘ : neces4ary ;l thiiR4 4gvi iiiw e f . (1).TheMrnlnfstratorbai determined
impact, or vould take too.longto . s such so rrOns21i ns, In t1wdIscunh tht the NAAQShu bàn attaIned
ImpI ”’n”nL” DeIaney at 692. In the case . addiesOi PM$ORACM. EPA lakes the. ( 2) The Adrnlniitiator has fully “.:
beforO the court EPA had argued that ... position thaI thLsvellable control : . aPPlicable lmp1ementatIor
certain measures would have - .. . measures EPAbi. Identified In It. . plan qud. ’ sectIon 110(k).’ :..
substantial widespread and long-term • . g d ,L.i Issued unI t i P sedion 19O are. . (3) The Administrator has deteemlned
adverse Impact However, EPA believes the .uàjisted.taztlng point for. : . -. that the In air qriallty I. -
• that Its revised RACM Interpretation .. . de ng$AQtL Accordingly, the due to permanent md enforceabJe
would provide for the rejection of. ... ,.- affected State should evaluate these .. reductions In eOdulon.zesult lng from
control measures as not nea .onably. .. measures and other measures that a Impl.i Pi1th s the apptkiihle
- available for various reasons related.to.. .nommçnt r deioistrates may well be ImpJøivimm4 tIon plan and applicable
local conditions even wheresuch cost. - .i ea dirably. vaflable In an area • . ederaLaIrpol1utantcontrol regulatlóns
fell short of substantial widespread . :. . consldaxIng thblr t ’ 4 ”4aglca and:.’ : and othsrpernranant and enforceable
Impat This Is especially true In the , . economic fesilbility In the area to which reductions.. •:. . -
absence of a presumption thit any gIven., the SI1 .applIes. .. • . (4) The Mi 1ii1 ,trator has fully “-
measure Is per se reasonably available. . : his EPA reinived cimi,nants . -. approved the malnt” ”’ e plan for the
Section in permits a State to adopt.. . requesting that additional control . area as specified Ii section 178A. •
and enforce new motor v ” 1 ’ 1 a 4 e emission measures. Including the TQ4’s .. - (5) ’llie State has met all appllàblo
standards that are Identical to those. Identified In section 106 (1) of the. requirements for the area nder ’sectIon
adapted by California and for which a amended Act, be added to EPA’s. 110 aOd paztj). . ‘ ‘..
• waiver under sectIon 209(a) has been guidance on control measures Issued . . The rernalOderof-this discussion
granted. The EPA I. not able at this time . unde sectIon 100. At this time, EPA has descrIbes bdw EPA will revIew a State
• to *cify.the emission, reduction - . Insnffi’4ent Information to conclude that request to redesI iite an area bern’
aedIta that may be available to a State . - the sources addressed by these. • -.. - nonattRIn .uIt to atta.Ininei ’t and ivha -
• that adopts sr- da ds• :.. measures contribute to the.PM- 10 - .. crjt nIa EPA till use tn detqrmIplng ’. .. -
identical to Callfórnia’c ,-called low problélnin a sufficient number of areas • whether the above tonditlons have been
£ duu Vehicle (LEV).progrsm.” The In the nation such that section 190 • met. - -“ .• •
EPA is presently developing the updated : guidance L necessary. Thu .. EPA 4oes (a) Requests ubznittedbefdre
ver&io of It. mobile ep I ons model—? not believe that each of these enactment. Some Slate. bad submitted
MO1LE5— which will ii ’. :de EPA’s measures ohotild be added to the list of requests Ion redesignatlon prior to
estimates of the SIP credits available to mea uzee which Is the suggested starling - enacosent of the 1990 CAAA that EPA..:
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f
13562 Federal Register / VoL 57, No. 74/ Thursday.April1O,x1992 / P lc posed Rdes
‘.. UI
was unable to process before - .. as required for an area before and/or •
enactment. The ‘A plans to revew after enactment of the 1990 CAAA
these requeste carefully to determine (depending on the particular area). Even
whether the above conditions (as though EPA has found a range of
described fuztherunder”Requests I. deficlendesbStateRACrrulesand
Submitted After Enactment”), Including has notified many States that corrective
ihe maintenance plan requirement, have action is needed.’ EPA believes that..:. ___
been essentially satisfied by the State’s the current e phaaia for areas that bad.
actions under the provisions of the Act... .ubinltteda request for rede.lgn2tion
prior to enactment of the 1990 CUA. prior toenactm nt should been the .
The EPA will determineon a cas .by. .‘ enfórceabthly of the rules In place at the
case basis what additional information . time of enactni”t Therefore, for.these.
Is needed In order for the requests to be types of areas, the States mustmake::
approvable. At a 1 1 11l 1um. an . . whatever corrections are ue sssary to _____
• appropriate maIni nv e plan showing ensure that the rules are and continus to ____
aalnbnnnce of the standard at least 10. be fully enforceable. *. .. • . ___
years from the time of EPA appluvul.: As a matterof course, EPA will not
will still be needed before the request .. require the full set of RACT corrections ______
for redesignalion Is co, .Id ed • (e.g.. lower source also applica6fllty-
complete. . . •. •.. • thresholds) In areas that bad sub nltte(
• ‘The main” ce plan ri uirement a redeefgn tion request prior to ‘ :‘ ___
i ot applicable lathe very narrow - were not viOlating
drcumstance where the arn.’ ’ed the standard at the time of enac” .
doà not apply to the r lionJ t ImPosing moreatrfngent rules ( m% e
the time of enacfntmlt Novenibe 1Z, far maintenanci) appears to be
__ thbcurrent
1990,two re Iselgniitlon actions were . of
sube tht 1 ty completed—the A’ t an’t
CO .redeslgnatlon ai4*he Greenllay. . the standard. fa •Othar wordS, the _____
SO redesigeation. Because the’States uncer yofmathemtitlcal models or
bad completed other tethnfques for projectliig ______ ____
attainment when planning first occi ad ____
Agency bad done everything hut prepare
..1flnal appr l notice, and no aaverse
c iu in ntswergrecejvad,EPA
that ’beprovidedbyRAtrr ______
requ1ren enb were not applicable (see- wnnvntlt rmp iireq. Thit. ________ ____
50 PR 37285 (Angel, 19e1) 57 PR 3013
• States ibauld coi sult wIth their EPA.
Regional Offi to determine what ___
addifionalluformation Is needed to. ____
plmthe lrieqessor
iPA ’ •
regulations implenientlngtheP sD
pogram.Mnas should consider the
needforoffsetsundertbe iartC
pzogr m to anewe that niw s s do
not TM cama erconfrIbut ’ to an Increase
In pollutant levels thatwould takethe
area out of complianà. If the wea’e
redeslgustloiueqnostluejetted and the
lifl df th 5m a rgi n0f:
may Impose. ô titctlon ban pursuant
me RACI’ measures (aaoprea and . .
• . . . - . to aecuon 113(a)(5jun as
, area a program sa
“ “ 7 ’ . ‘ Jh NSR requl cnts of the C&AA
ee gnauo i incinainginzormauon t . ‘U The iequlremente.of thi applicable
t wá of Ut .
1a90 CAM. For example, EPA p to . apprpv d and the area has b en. •
aUmee that the operating permits with oriwilk4ea rede IgciIed to at’-’__hf except to the
program requirements of title V . •. , .•.- extent the main ’en ”ce plan shows that
(Including the requirement fox permit .t e t thó most rec t EPA test measures are not necessary to
fees) that will be Imp 2 ,m ”tedIn State. ods ‘wI’. avallableat :malntaht the standard.The requirement
pVer the next ,few year willeIfoctively me of the J fonnekm for new crmmlifled control melewes or
,aaUsfy the section 110(a)(2)(L). :• . . . resulatlbñs for these areas Is dlic saed
.requfremgnt forpermit fees In the. j W iU W WiU;; be1ow d ”Im w t In F&.
eubJé t areas (Le.ja areas fox which . ensure thitthendesJo ibIe 5UIt 5 ho cuentation of
requests for redaelgnalion to the SIP. •. .. .
OdprlóotheAct). Inven —that u ’W ” ’tIrne tb)Ee baziuedafter.
States should consult with the Regional. . “ . • • CAIOCInien An requests for
• Offices about other new iequireiuents • S. .• • .• zedesignafton from nonattainment to
‘ul dtViett1on 110 or subpaztlofpartD. ‘ fl Ahcnibm,.I 2ur. at’ ” ’4 that aresubmitted to EPA
hi thiAct, nd whether any additional, a m’A - a renactment Of the 1990 CAAA must
IStath is wu be e ded to satisfy...- -an4 -4 ts .coni. satisfy the áondltfons In s.qtfou
!th só !eqUIrPZneDIa..I ,. 2arM2)Upr Nqsbul I S 1W(dX3)(E)thatwerellsted at the
-. Tha ’A believes that th.’ g ” s of. beginning of this section (IIL}L8).
•s ctlnr 107(dJ(3)(E)(UlJ clearly requires. wt pr,,I.tos c(F, sst C&taffl Of these 000ditiOfli (liSted
that the aml sfon reductIon t u dou 02(b).’ • ; ... . . above) am further described below.
achieved and M j the alan to attain •‘ 8 b. .5.lsttsg VOO 5 ou . (1)Vetemththtg whetherthe area Ms
the st ttard must be linked to. attained the ambient stdndaid The
enforceable regulations. Many of these. . ji . N .AQSf rn . . and CO are sPeCified
regulations are rule, representing RACI’ “--- u. m.sme in 40 CPR 50$ and 50* respectively.
of no violations of the standard
on the implementation of permanent and
enforceable regulations rather than a
“temporary” reduction In emissions,
which may have resulted from a
suspension of Industrial production or
other temporary rhinge bribe Industrial
or economic activity In the area.
Reductions In emissions from
shutdowns are considered permanent
and enforceable to the extent those
shutdoWns have bàn reflected lathe
SW and all applicable permits have
beenmodifiad amwdingiy. : - -
• During the I iendm%cypf these -
ijide signAtlOn requests, EPA will not
require tbese areas to adopt amended
NSR program D1 Ilowever thee.
areas must conUa o to apply their :.. .
existingi N program or comply wlth
the NSapvrmltthmg re J ients of 40
CFRpart5 l.append lxS.Pr lorto .
.redes%natlon, these areas also must’
adopt and be prepared to Implement a
ne_rmltflne arearam that satisfisa the
-------
Fed ”al Reg I VoL 57. No. 74 I Thursday. April 16. 1992 1 Proposed Rulee
13563
A peHo(4oQRsci9
(Interpretation of the National Ambient
Air Quality $tandarda for Ozone)
explain, the procedures for determining:
whether 4ofatlons of the ozone
standard hav, occurred. A recentEPA
inemorandwn ‘provlde. additional
guidance on c frntnting “deaig values”
and attah T’i.nt for ozone and CO..
Any request for redesiguatlon should
be based on the most recently available
and qua Ity.assuredafrquaflty;..
monitoring date, collected In accordance
with Ihereqvfre entsof4o(WRpazt5&:
• (2) Full opprovvi of the epplicc 61 .
impkmenfienplere. Section 11O(k)(3J.
allows the Admlnlatratar to approve or
disapprove a plan revision In full or In
part. Althmighsemlon 110(k)(I)p. ,kLs
joy coodltiimslapproui& ofaSlP.
revision In c.J.L . im ances. a
ro proved pl f fo:
not to be keatod as satisfying the
Teqvkera of the Act n.til the Ifr ’
revision ha. been approved an saiLfylig
the Act requIrement ,. Therefore. In
ordaç for the request for zedesignatica of
an aran from noeittaIi .i r 10
attaInm to be approved the Stain
must have satisfied .11 requIrements c i
the A thatapplyto the azea.
requkemanls have not been motif a
revWo hasbeenou1yp&tiaIly...
approved (orbiebeen partially
disapproved). -. . .:. ‘.
(3) Iinpzvvemerif hr viz qualky resdits
from implementing the SIP. Section
1O7(d)(3)(E)(lii) require. that prior to
approving a request for redesignatlon of
an area from nonattainment to
attahwn nt, the Mi ,unl.trelor must
determine that theimprovemeat In air.
quality has resulted from permanent ad
enforceable emission reduàtlons
resulting from Implementing the SIP and
applicable FedaJ measures andlor -
from other permanent and enforceable.
rneaswu. Before it makes sucha
determination EPA will require that
the , . measures satisfy EPA guidance or.
requirements regadgenforceabilfly
and that the emission Inventoryfor the
area during the time in which attLwent
has been demonstrated Is based on
permanent and enforceable regulations
Or measure..
The EPA believes thét the language of
section 1W(dI3)(EJ(1ii) dearly requires
that th. emission reductions that were
achieved and enabled the mee to attalir
the me .tb e l l nlcedto -
enfqiciable regulation. in the P. The.
EPkwjl1asr e th t aU contrçl
mea .- aan1rvgu1.tjon. tz theSWfo
W M
csa mro s. r
an area contribute to attainment of the
standard. Therefore, any request for -
redesignation to alt £nment must show
that permanent and enforceable rule.
are In place to hzrp t Pi t these
requirements. This showing will also
support time State s demoostratico that It
has met alirequlreme ts that apply to
theareumwia.aectlónuoandpanD..
(dlscitsaed below mw P!Mecting
section 110 and pa tD Req bements ”)..
lnadditlcntosbowthgthatfthas
developed sofonmablerale. and
me a . u r e s i mpI.”t a .4 lvgthe
requirements thatappiyto the area, the
State mustslwthattheenda ”
Inventory that ocr urad Lw th. time
at no vinlaH u of th,wta di.bs.ed
on the It p .it thiii of permanent and
enforceable r,g’J.’krs ,ath.,than a
temporary ,edacU Inemim1ons, which
m y have susperiøon of
industrial production or other IempUIIry
âhange in the Inthlsldalor econoign
activity hr lie area. 4tw9fr . 1a
emission. from almtdDwn. me
considered perroAn I and
to the ‘e t those .)“ “ 1 own, leve
, beenrefllntheSlPandall
• eprU !at4. permit. bavebeen modthed
acc&dIng y.____
(4) A fuYy .,,p 4mcthtanonc..
pin The Stat. must mink &
main*.e plaa In accordance with
seaftoit 175A for any area tie State
• requesbberedesipatod.fmes-
to a wiit . ’Th ls plan
must pruvkle for”i.uI . .f-.—v”e of the
standard fleet least 10 years from the
anHcIpeted dateof red a geatice. El mt.
years after the redesignatlon date, the
Statawillberequlredtazevls. ItaSiPto
provide for maInta. w, In the ares for.
an addItional 10 years (beyond the first
lOyeer period). -
- The . nai 1” ”nce plan consists of
three basic cemponenb An,TvI on
inventory, a maintenance
demoestrathxm.arxlumntl my
measures. The inventory must Md.d .
the emissions that oconred during the
same period associated with attalithig
the national standard The EPA plane to
issue additional gufri.” ’ en preparing
these inventories and other compernt.
( discussed below) of the maintenance
plan. -
For the maintenance demoesfr n’- -
the State must either demonstrate $hat
tim, future “ ' “ “ii inventory will not.
exceed the Inventory that emdsted at the -
. 11mb bf the reqeeMfserede . a*toe.es -.
cond ct - - appropriate
analysis coaalsteoi with PA’. • -
“C .t tbh as on A htyModeis that
shows that the future e±c of sources amid
emission rates when amembined with
control strate lot th. area. will eot
cause any violations of the anible, j
slandard. Under either alteruativa, th
State must Identify the mechanism that
will be used to track the progress of the
malnt. ” '’ plan. Where the
maInt nante 4 1wt.trsdon Is based on
the Inventory, the State may choos, to
periodically update the
Inventbiy or periodically review the
factors used to develop the Inventory to
- determine whether any significani -
• changu . bnv&occurred. Where the
- -demonstration Is based on modeling. the
State may periodically review the -
assumptions and Input data for the
modeling analysis. Suck review, and(oc
update. may typIcally be done every 3
year.. The maintenance plan must
contain any additional measures as
necessary-to that the standard
will not foisted Any future - • -
measures must be ImpI.mented before
any violation. might be anticipated.
based on tracking of the emission
Inventory ( iw the first alternative.
above) or the mod th,gat. uiptlon. and
input data (under the sened • : -
alternative).The maintenance plan must
also Include contingency measures to
•enaure’thetmq violations can be
quiddy addressed should such
violations occur after the area Is
ded to atlnlnm.nL The EPA will
review each mequestforredesignalion on
a caee-bycese basis to determine what
contingency mëasurà are needed for
possible violations. Section 175(d)
requfris the nia . nalce plan to-
contain, at a minbean, a w Hm .t .
for the 1mplemor Iation of .0 measures
that were part of the cuntral strute
(LeqtheSIP)fcrtheareapdorto
•reil.t;gu&tlon should violations occ In
the future.” Thi pian should provide for
prompt Implementation of these
measures wfth , v.h h,.a1 administrative
action on thepart citbeState or other
government .geqcy responsible fork.
ImpI a a atloa. -
(5 Ih,g section J1O and sizbpa t2
(of pod D) roqsdremeots In ceder lobe
redesignated fives nonaftam .tment to
attnlnm ’ ’4 . an area jmm* have met .11 of
• - . • . —
“1to ,LL&inoLsaatth. S mswssid
La ,. i rn4. .4 the *tse.a )
th. merit.. tin . . .. yes ,dustp&sd
t..tm. .1in.R1ttug. _ ssth.
dm as% iniutsthths emsy us..s’s
. . .l.... d IIM cram ,..,.Jmd.s pail slit .
cle ” ”4 . ”t My app,o.th would
a.. a. — ‘----— i . yc.u
. l _ v.1 _ a lu vlo ” ’- thm ’ e1 ti.
o .sr.m1’ ” ...
DA aLa solicit. ouaimsotou
tb. .J ._L_ .od . .‘ amI . .tould to
s pl1 .d.Pos—9 I 5 ’ d a Ses
r ’n b. squIred at hut for saws pertod
baycud a. a.. it. aNa Is de.1 5.at.d
P- - . 5 aad m ..d . d .. Jun. tausa
-------
13564
Federal Register I VoL 57, No. 74 / Thursday. April 16. 1992 / Proposed Rules
the applicable iequirements in section (The exception is In ozone transport
110 (regarding general provisions regions where the part D NSR
needed In a SIP) and In part D requirements applicable to moderate
(regarding the requirements foi areas would continue to apply along
nonattainment plans). Part D contains wfth PSD (part C) requfrementL).
general provisions that apply to all However, to ensure that the PSD
nonattalnment plans and certain - P1 V can become fullY effective
sections that apply to ap cfflc pollutants upon redesignatlon. A -
(e.g., section 182 applies for ozone will equire an area to make any needed
nonattainmeut areas). - . .. .. - . NSR corrections to their part C NSR
ortoredeelguation.
generai requirements (v) Other inàsures to provide - -
att 1nment. Since att Imn nt will have
• plans. SecIIonifl(c)desaibès the , been reached, no additional measures
.provlslons required bi nonattalnment - are needed to provide for attA t m.. t.
plan, . Thezequirements of . . - The need for additional measures to
subpaiagraphs (1) throuih (9) of section . ensure that maInte” nce continues j
722(c) must be,satlsfled before a request addressed under the requirements for
for redesigriation can boajproved. In • - maitpn.”o. plans. Areas should
• addition, the confozmfty-requlrement. of consider the need for offsets under the
section 176 must.be rnetThe discussion part C program to ensure that new.
below describes further¾ow EPA will s do not TM currsi or contribute” to
assess ccmpU nce with these an Increase In pollutant levels that
provisions.- would take the area out of p t ’ ” - -
(I) RFP. The requirements for RFPWIU- (vi) Co tpH ”c , with section 11O(a)(2).
not apply In evahiating a request for . In the requests for SW redeafgnatlou. -
redeslgnationio attainment since, at a States must show that their plans satisfy-
i hthnum, the air quality data forUm. . . the ñqulrementa tmiler section fl .
- areamustshowthatth,areahje
• already attained. Sb ow1i g that the Site plans must contain enforceable euiis.IÔn
will make RFP towards atthInm nt limits, monitoring reqnJrenzents..
____ procedures to prevent interstate
therefore, have no meaning at that p uit poflution jiroblems,-adequate ràoà es
(II) EmissiOn Inventory. The emls.Iop to carry oat the control programs; and-
o jre u1reiimiiti of ee ct1oi. related to thO-’-
172(a)(3) will be satisfied by the .. development and ashnIn4 fradon of’
inventory requIr menb of h . - •e ective air pollution control progre ins
-: maintenance plan, as discussed above. ó more detailed d1w mei iiu of these
(Ill) Identification of certain emission- provWdns s located j R States
increases. Section 172(c)(4) requires an alicr4d consult with their EPA Regional
area, In developing Its plan for Offices If additional guidance Is needed
attainment, to Identlfyexpected with fespect to section 110-requirements.
e.ntsef ons Increases that will result from (vii) Equivalent techniques. The
new or modifledmafor eomces In e provisions of section 172(cX8)allo*.the
. ‘zone to which econoinlã development’ State to use equivalent technique. for
kWdbètargeté accordldgto sectioh lAventmylng. or other
J 73fä)(1)(8 ) .Theàe provWonaèffectively pI ’ ””gactiv1Uesimle ., EPA
. allow the State to’provlde a “ th • determines that the techniques are less
allowapca” for sources In such anareg . e ect1ir& This allowance will tontinue.
• In lisfi of the onset requl uts - . to apply with rea&ecttothe - .
section 173(a)(IIIA). Sluci this is an- • requirements of
, opllonal alternative bthi tii - LVIII) ContInàenc measures. The
c ( uisldon of offiets under section --. section 172(c)(9Jrequlrements for
•:,t73(a)(1XA It I . not a prerequisite to CSfltliSëflCY fl)ea8UteS gre directed at
redesI8hatlon. Moretiver, once the area s u ng add attalnznsnf by the
• —Isi deeignattd afb .iiii n. .4 , these applicable dats. These req ilrement. no
- prpvlslons wl)l not apply the . = - . longer apply when an area has attained
éfre ta of part C w’fl becom - . the s’aud rd and Is eligible for.-
effective (e. discussion In redesIgn tlon. Furthermqre. section.
175(A) fot maintenance pram ( dlscrm .M
aboyeflwovldèi spectflc requlremçnts -.
aitprogriiim.. ( 1IY( for contIn edcy measures thit-- -
r, eJ of the part D effectively-supersede the requirements
• .pennltlhrgnouranatnnwnt program will, of .sectlon 172(c)(9) for theseare
- beteplacedby the PS -progr monce-an • ( lx) Copformlty: The State must show -
area is red igmated to attainmenL - that the section 176 requkeinenti of
• - : - • -. . conformity have been met. The SIP
• 4 $ee fOCtncIr seed rt-- -. - -. ‘ conformity provisions-must be ‘- -
consistent with EPA guidance i sued
pursuant to section 176(c)(4).
(6) Meeting other pail D requirements.
- For classified ozone areas, the
applicable requirements of sect1on iez.
184, and 185 must be met. For CO areas.
the applicable requirements of section
187 must be satisfied. Satisfying these
requirements for redesignatlon purposes
Is Particularly Important since the
contingency measures of the - -
malnrenence plan will requlre at a
minimum, that the measure. in puce
Just before redesignatlon be -
Imple”.’ If future violation. occpr.
7.1 ansftIonTs.uá - -
(a) Phaseffof SI calls Prior to -
enactment of the 1990 CAM, the EPA -
issued SIP calls-under section.. -
110(a)(2)(H) of the Act to many areas
based on 5 fl ,wlh 1 g that their SW ’. were
substantially inadeqãate.to provide for
timely attailiment of the ozone and/or
CO NAAQSI In these SIP calls, EPA -
stated that States should respond In two
phases to produce SW. that.wouldbe-
adequate to attain and maintain the -
standards. The EPA first requfred -. -
States In PizassI of their response., to
- u date their emissions 1nventbrie and
make corrections In previously jequired
regulations Imposing RACY on existing
stationary sources. Phase I response.
wezedue geneially by Septernber3o, -
198 • ---- - - -- -
The EPA advised States that they
could delay submitting Phase II -
responses which Included a full
• attainment demonstration and all
additional ggulatious necessary to
support such d noi etraUons, until EPA
completed Its policy on post-1987 -
nonatt2lnynënt pl*nnlnE EPA did
not complete Its post-1987 ozone/CO
policy In anticipation of passage of the -
1990 CAAA, EPA has never set a -
generally applicabledate for Phase II
SIP call responses. However, the basis
underlying thaSW call valid -
even under the n,nønded Act. The SW.
for the affected reds-are still .
eubsliinilally Inadéquate to attalir the
relevant NAAQS. Since the date fôn
submitting Pbasq I-SIP call responses.
has already passed, and the amended
Act requires all marginAl and above
ozone nonattatninent areas subject to.
the RACY-correction aspects of the SIP
calls to submit those corrections within
6 months of enadtment.,the requirement
for Phase I responses to the SIP cells
-- remains In effect for these areas..Thus.
these areas should have submitted
RACY corrections by May 15..1 1.
pur.uanttoeectlon 182(a)(2XA) (see -
- Section IILA.24b)J. -
-------
‘HO VerIUtOPheseflSWCaU
responses, the amended Act altere both
the substantive requirements and
submission deadlines for full attainment
demonstrations and their component
control measures. Thus, although th.
obligation to submit a SIP adequate to
attain and maintain the NAAQS
*kl. InailSWcailareas,bothth.
necessary elements of such plans and
the Ilmfrg of the plan snbniI.iik ius Is..
now governed by the requL meats of
sections 102 and lWcf the amended
Act 1be A therefbr will not requlrD-
Obese II SIP call response I.iL..i Jona
on schedule different from the schedule.
ablislied by those sections. States
sbouldre.pondtoPbasefloftbsSlP..
call,bymaldngth.submiulcns ••-
otherwise required by i . ciIoos 23?.1BI -
and W. This new Phase Ur” .d,d.::
supersedes any eule PAmayfia,.
established for any mon p1cm..
ftaaecA AA ,. •
It should be noted that sectiOn 173(b)
ottheActzeetrfci. the one of owth-
allowance, by at areas that r caIEd
SIP call, thsi9 7 Act Since 99W..
Is keeping the Ote .1910CAAA SW :
In effect. use c a owth allowance in--
restricted In any ares thati
SWcall the1W7Act”.
(b) Coaatn Aio’r ham lbs;
Act repeals 1 wvl.L .i ft
section 110(eJ(2)(I) of the 1977
requiring EP& to kuposa a con
ban In nóuait IMLAnt that I
tosubmItpbm. n reet aItoftho: -. -
requirements qf artb of the Act. lb 7 - -
d 4 also Containta saW ge--
clause Iisec m110 -.
cad scorn
V.
1•
I
I
13565
-enactment In any way unless the.
modification will result in equivalent or
‘that
operation of law as of the da le of
enactment and treat those am. Ifte ta
to part 52 as mere asbnhl%letrath,e - greater rmi c reaucuona in
housekeeping responsibliMea. The EPA pollutant.
will treat those areas previously subject
to the construction ban under these - IV. EPA Requirements
clrcumsf n e, as no longer being
subject to the ban after the date of
enac””t .-
Itshouldberuoted thatwhers - ___
consOnc’ t ”n bans were huj osed for __
falluretode ___ ____
— —
t
in-
see.
wee,
pens
--I ,
have an
Iowa
I- . . -
—‘; —
r.,.
1 .
as
_ — thati
-t
.Techr
:--‘ thede
• Wb
ç npl
- :L_-—
E thenbei
---S. -. 5
bi ..r
I
t - .‘goiemag . 1
the ozone or C( certain pa. olpievioudy. - c
developing a rule nend - . .ii IMpi fv ’” ” -
regu tion.at4o ..R5LL todaIIf 93 anyreg u1 q ’ t , .. I
limitédappi yofthecons l ruc ids,notfci ,crderand . C
banandeppe l lngthefndfv idual . . ssu dpr 1 crtoNovimber15. -— -
sect!piusof4QQ Rpazt52thattmpoied ••1 effe tunfrsi(tl.’. a - : -.
theóstructfóubanfneachozonior M I ’ t!VfthaflyPrOVlMOftOfthI . ,ij . ..ei i a.., ..,. - ‘
CGt&onattalnment area whet. the ban 1990 CAJiA or Is rivlsèd by th... . ? “ - - -. .- • “
was Imposed solely for failure to - • Mn ”I’tr,tór.No control requimment.... (a) FidL partial. - m llsd vvvei
W !Ide foe timely attainment Sinc, the in eff ect . or tequired to be adcpted.by. and 4isoppi’o voL - - -
i Act no longer authorizes EPA an order. . ettL .n .nf agreement, or plan to fully a- we a tat.
to impose bans on the above basis, EPA In effect prior to N&wember 15.1990. I a SIPs - -
Interprets the-enactment of the Acte any nonatbtnlnàt area for say all . How.ves,Ia some Instance. I late’s---
amendments u repealing thes, bans by pollutant. may be modified afler submiesi of aSIP or SIP revision will
FOdèral Register I Vol . 57. No. 74 / Thursday. April 16. 1992 I Proiiosed Rules
A. S!PPr aafr Requfrémenzs
1. Co pleteneu-
S ctIon fl0(kXl) required EPA to
promnlrte by AngustILlaGi (withIn 9
months of enactment), them attest.
that SIP subht _ I must meet. The.
EPA opoiedó s etof__
completeness ultasl&at 50 & WM
(May 2(19913 and 1 t edthem at 50
FR4 Ib(August*19V1). Those
noi lcesdandbethd
I
I]
I
I
I
I
8. I
!ctto-i
:-.- ___
Tb. —
subrel
S
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13566
Federal Register! Vol. 57. No. 74 / Thursday. April 16 . 1992/ Proposed Rules
Include a provision that does not comply
with one or more applicable
requirements of the Act. The Agency
must disapprove those portions of a SIP
submittal that do not meet the •‘
applicable requirements of the Act
(section flo(k)(3)). Where the
disapproved portions of a SIP submittal
are separable (I.e.. disapproval of a
provision will not affect the stringency
ofother’portions of the SIP), EPAwIII’
partially approve the 511’ and
disapprove those separate parts:
However, there may be instances where
Inseparable portions of the SIP submittal
are disapproved.TheEPAbas
• Interpreted the Act to provide flexibility
In the 1nstaj ce where a submittal as a
whole serves to aliqualltyby
providing progress towardittainment,
RFP. and/cr RACY, yet fails to comply
with aU of the Act’s requlrdnenth. Such
an action. called a limited approval. is
not considered a complete action on the
SIP submittaL To complete the actlon,
EPA must also issue a limited
disapproval whereby the Agency.
disapproves the SIP revision request as
a whole for lulling to meet one or more
requirements of the Act
(b) Conditlonol approval. Under
• eeOtIon 110(k)(4). the Ahnh frator may
ipp planrev1sIonbasedona
- co n Itinent of the State to adopt
• specific enforceable measures by a
•speclfleddatebutuotlaterthanlyear
after the date of EPA a oval of the.
plan revision that Incorpurated that
commitment. If EPA finds that the State
fails to meet the commitment within that
yeaz the conditional approval would
-, automatically convert Into a
• disapproval. The time periods -
•c ImlnaUng In Imposition of sanàlons
PiP. dd not begin tp run until the
I converted to a
S
dOtherSofeguwds
nd Under 1977.CAAA
The 1977 CAAA provided For two
fsadcticnsrCoñstructlon bans
beri on consti rbUon or:
ofmaJofsâurue under
t)(I ) .ofabanon
i sources under section
various forms of fnndlng
The consfructIonbans
lied whenEPA
‘!or failure to meet
sspedfIe4under.
‘thepermittlngban
r 9ImwhenEPAJound that.a State
biImplement-i SIP provision as
— - uaderee’ctioi 173(4) ln *
aikfltimp . EPA bad discretlonafy
• authority under section 11a(a)(5) to
Impose a construction bab upon finding
that a State was not acting In
compliance with NSR permitting
requirements in nonattainment areas.
The EPA also had authority to apply the
restrictions on air grants or highway
funding under sectIon 176 (a) and (h). or
sewage treatment works funding under
section 316(b). -
2. Available Measures Under 1990
WA. ••.
The 1990 CAAA revised the law
concerning sanctions and related.
measures. It sets forth specific criteria in
sectIon 179(a) to diterinlnt when EPA
may apply two types of sanctions
specified tinder section 179(b): Hlghway
fnndlug restrlctlons ,’and increased
emissions offset ratios foruew and
modified svu cu . A third type of
unction, restrictions on air grant
ftmtllqg , Is provided for under section
179(a). The construction bad provisions
of section 110(aXZ)(l) were largely
repealed (see section l11 Ci4 However,
several other provisions of the Act
provide for consfructlón bans and other
sanctions to iafeguard against increases.
. InalrpoflutlcndüetoSIPplannlngor
Implementation failures.
Section 179(a) sets forth the four t p
• of flndln ,disapprovals, or
detirmlnatioirs (hereafter *efened to as
• aRiwttngg I) which may eàd to the’S
ImposItion of isahctloru Thati State
basf lt lledtoeubth ltaSlPórane lement
of a SIP, or that the SIPbr SW eldinent
submitted falls to meet the completeness
criteria for section 110(k); that EPA
disapproves a SIP submce 1on for a
nonaft*inlnent area based on Its failure
to meet cue or more plan elementi
requlredby theActthatthe State has
not made any other submission required
by the Act that meets the completeness
criterli brlisd made a required.
• submission that Is dlsap 1 nuved by EPA
for not meeting the Act’. requltements
or that a re ulrement of an approved
plan Is not being hnphiinonted.
(a) Higl rwayj lmding sanction.
Cous’etent with the procedures and
findings described below, the EPAmay
• (and In some cases must) prohibit
approval by the Secretary of
• flansport don of projects or grants
(pursuant to tItle 23 of the us c.) In the
• affected nonattainment area except
• where the Secretary has determined that
the purpose of the project or grant is to
• Improve a demonstrated safety problem.
• In addition, the et provides exempttone
- for certain projects and grants that erq..
Intended to minimize air pollution
problems (section 179(b)(1)).
• (b)Enrirsien offset sanclign. mc
• emission ofluet sanction provision
(section 179(b)(2)) refers to the
application of the emission offset
requirements of section 173. This
sanction applies to new or modified
sources or emission wilts for which a
permit 15 requIred under part D of the
amended Act. Under this sanction, the -
ratio of emissions reductions that must
be obtained to offset Increased
emissions (caused by the new or•
modified source) in the sanctioned area
mustbeat leastzto l.Theozonepre-
sanction ratio ranges between I to 1.5.
depending upon the classificatIon of the
area. The EPA plans to promulgate
Federal nonatt2tnlnint rules at 40 CFR
52.I(Lwh lthcouldbusedtoapplyth ls
sanction. - -, -
‘(c) Grunt fun ding sai,ction. According
to section 179(a), the A 1 n inI.trator may
w lthho ldallorpartofthegrantsthat
support air pollution planning and
control programs that the Mmb istrator
may award vnd ’ section 105.
(d) Section 273(a)(4)permlulng ban.
SectIon 173 of the amended Act contains
the requirements that must be met to
Issue a NSR construction permit for a
new or modified major source hr a - -•
nonatb1k TA.nt area. A prerequisite -
contained In section 173(e)(4) for Issuing
such permits Is that the permit authority
must find that the Mmh 1,frator has not
determined that the applicable
Implementation plan Is not being
adequately Implemented as required by
part D. This means that Issuing
construction permits for major
stationary sources un ’ 1 ” section 173 Is
prohibited If the Administrator
determines that the appioved SIP for
complying with the part I) -
nonatinhiment requirements Is not being
adequately Implemented for the -
nonattainment area in which the new
source wants to locate or In which the
sou us wIaiih g to modify Its facIlity is
located. • -
(e) Section li3(o)(5Jconstsvcilon
prohibition. Section 113(a)(5) authorizes
EPA to prohibit the construction or
modification of specific major stationary
seurc s mall areas, Including
thinment areas, and to take other
enforcement ictions against Individual
sources whenever the Mniin1 trator
finds t liatgStateihnota iting ln
compliance with any requirement or
prohibition of the Act related to
constructing new sources or modifying
existing squrces. The authority In -
section 113(a)(5) may also be riled to
Issue general construction bans. AftOr
making a finding under section 113(aU5),
the Admlithtrator may Issue an order
prohibiting the construction or
modification of any majorstatlonary
source In any area to which such
requirement applies, issue an -
administrative penalty order In
-------
—I
Federal Register IVoL 57. No.74 I Thursday. April 10. 1992! Propos d:Rules
13567
ac arda with the requirements of programs are dlsamsed In more detafl in the economy. Fo these asswnptions. SIP
section 113(d). or bring a civil action: section 111.0.3. . . - planneru often rely on projection, of. - -
“nder section l13(b ) . Nothing In section There may be areas where A has to population. motOr vehicle travel or
13(aXS) shall preclude the United. . promulgate Federal NSR regul$Ions.• economic bidicotori made by other: .•
....tates from conimenehig. at any time, a The A Intend, to adopt at 40 a - . government agencies. and ProjectIon.’
• alminal action under sectIon 113(c) for 52.10 Federal nonattainment area. .. . made by the air pollution control agency
‘any such violation. . peimltting rules that ‘A can Impose in regarding the future effect of planned -
(I ) Othezarnciloiprvvitions Section States with deficient nttnhiin.’nt . po1) utIon contzc measures.-. -
110(m) Includes provision. on sanctions. NSR permit programs. .. . . : • . — lteefts 5umpllou.àutrol *at*s,-’
TheE pAwl l lbedlsa mshig those v tsIiscdlla eou. • • ems velcedes
provisions Inn subsequent F.dsral meetthea”e1nmenf
3. Application and lIming of the Section 1JiodtdIoi . • - -‘
- 70Sandions .- •• .. - - iS mgto
• gNeenr onthsaftirtbe .. .... - - - - of
MmIns to 1 ndIng : ‘
.wnga$it faflure(p.dcscdhiéd.,. ..
withtpeoaspeciflèp1ó 4J9fl1h1 ma—
requbedbypartD -or lniz sponsetda, • • , .. .If.
SWc.L mder.óectIon170(a). h& . -. Jøb I
• Mmt ‘trato mâ siippIyeftb e rthi’
yoroffaet Hoi .ofsecdón
.. 3 )pthel d4 hail . .
corrected to A’s atfsfact1on.The
sanctioli 2ona•
‘èath . -.
4...
faithon
::E tlml
(withiaSs
enta
rqulred a ttal ot
.Z .submlttaldees
cOmple’.” .’
section 110
v. August20.
subi n lttalht’
ópp. ved a cor éc
State befois ’ the lithe-a
réqtobei
A s gjeraf:
mcplldtly to
‘econorn lc
-
.en ssIons allctwanc
The ’Avlew the use
Incentives Ia the context
potentially approprfate, a
cases of feller. of ozone i
areas to let the p p
p. -
of r.F
featues thli.c0 .. -: ••• —
— •‘•J ... ‘p. ..%
InthetltleVp cpdsaL
1 sw
:s t, th qntifl I
owvariousgoa1s ..
i1cn.mncsnuvumay&. :: . Thës .goalsirfi ..
• • to!th.NAAQS . ben
Iii dqde eàmomlc - maInt - - . order’
w I1 look to jts econothlâ’ at ni11ent OCCI2r 5, end Pref(5 bed rate 5 - -
of progreonTo atfafy (he Jmrpobes, a
r.n mbe,ofumpUonmuatb déb time
thi SIP regirdIn baseithe , .ni.,k.ea:;:. elm
£
—
..1
-
1
.7
-------
1356O Feaeial RegWer / Vol. 6 . No74 I ‘ 11iur8 ay. April 16.1992 /?tppb ed Rules
•n buUnbthenyer on s. - 44 thesToEasirreThatPerinlls . (3an idi sáofI’ricni rading
r ctIonLThe value fore m esure’s, .PropedySuppod SWs : . : ndma cetab1epènnlts toac1ile SIP..i
effectcanbeueedósjljmftlna ‘ -
- I St IOZI . C ? It amybe O 1 O?I11 .:0U o gifld
_ to omp_at oath other and °mee1
• — of the projections In the demonstrations. 4he prmcWes 4i Love. The . • • -
(b)Servndpdnc1p!e..The second . 10 1qW1 0 ‘°‘ . - : ladlitate the movement tow aidu e ‘ .
principle Is that the measures be PrOathe5 .’ - ‘ < flexible SW’s In Itafinal rules to
• forceable. Measures u enforceable , The SIPv ntmhi the basis for Ititle V.EPA laiis tolnthrde
- when they are duly adopted. and specify ponnit
- dear, unambiguous. apd measurable i
qequkuments.Alega luns ansfor :
ensuring that smunse are Inoompllamce
with the ouaitrvl measure must also exlst: - -
.• Incrderforameànre beenforceable. hztheSw.sappllcabletothe:
This principle Is well à d peruaItte . S 1 nv ’ permit must Incorporate
Act. N w section flO(a)(2) of the Aut - , • emission limitations and other -,
requires that SIP’s In’ 4 de “enforceable requirements of the S1P eIlSW
,mI Ion limitations and other control provisions applicable toe p&tlculé. pi • ‘
measures” and “a program to pt vlde •.aource will be dcft’w’d and collected Into
for the enforcement of the measuies’ In -1 sIngle document The applicable
-:the plan. Courtdeclsion* rnnde’clear • requlrements*n the permit would - tot
that regalallotis must be enforceable In- -Include anyrecent SIP h .mg s , whether source . to
pract lce .A regulatoiyl lm lt lsnot’ . . - .saresultofaStateorlocalSlP.:. that i
enforceable if let exan le, It Is •- - revision or of aFIP action by A..Th ‘br In the”””t ltStites châose to
bdetermJwn J am,e - ‘A’n’ ”dutoa siIstJnthe - - ___ -.
-. - S i bIWied lImit -pt: - Implementitlà of the itènnlt pr graia btbis tter.th
idple eLndlsfor
- nw ai w hatwharearulet onIaIn., Asprey1ousI dIectjased,tjtleV. :- -; uJpitvInâSJpt -s-- - - -. - - .
the iido , - affáds 4’fficantcperalional. - •• ••. •, ; ,•
1 0 DI - flexibility. The relationship between. ; , -1hatset forth ndco p11 nce :
u . u nu uw . 41t1 V iiaui .iH1 $Jp’ Jg they factor -... ‘hat sources could usetó .‘ :,
tLe i .tentIo iSJPSmIts.TheSIPwouId ::
It..
-g
itheSlP ’.toi
detailsofbow f llpftnrfti
::apPI.y to subjectsourçe.. -
.inforrnatIonbthe1
L (i)Themoet :.
chasmoth gdetafl .
F exible ways for ources tq: .
-‘ u sed lnthe
-• demonstradou It i -
-• ent. i-- -
- - - The Atocondmingwha eana:
• ppe for correctly! action r. - -
aco
- ________ - -
:.;for’
Thefl Awifl
-• -explore options for
- r emdUa froth
Thei
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Register I VoL 57. No: 74 1 Thursday, April 16 1992 / Propose 1 Rules 13569
LI Iop(ng more R4CTprOtcrA’Is. perimt. As long as the terms of the.
In’th. title V piramble. the A said permit txunplled with the $IP a’nle..
that It.would develop more flexible changes to the permit could be made
ways for sources to demonstrate without a SIP revision. The proposed
compliance with RACE limits. One way title V regulation, for example, would
Is to use protocols defining equivalent - not require a erudt 4 1kT1ge for emission
means of coinphance. For example, In. trades authorized under .the Act If auth.
• 1980 EPA released the NCanCoatj changes were Implemented consistently
Policy ” which allows cross-line ... . wjth the replicable procedure speclfled
• avera 1ng for can coaling facilities and In the SlP .
,óvitii i tim tediniqub for..
doingso’— . :v-
.. :.ms AIsun ta1th
de t IIIltn,theextenttQ
andtmos-line i
implffnPntation of the Act on tribal
lands..
C. Section 1795 Requirements
A new sectIon 1793: InternatIonal
Border Areas, was added to the atlute.
This section applies to nonattnbinient -
areas that are affected by raIseions
c!n nAtlI1g from outside the United.
___ States.ThIssetIonreq esEPAto
approvià SWth The SIP or SWi visIón
meets all of requkements applicable
& tltmithr.theAct,otherthani
iof requIrement that ft
nd ni 1nta iio , of the
• rth P2 .AQSby the ap licabli.
attalnmentdate and the affected State
e.tablis t ’,, to EPA’s ,atLlf.ictiomi, that
át•• thoSlpzladeadçquatej
dezivid . m*h 4 In the rele i i it
- Also, the by the appli able atf h ment
eñdss lons bul for em il gfr m
Io lsp . - UnItsdStatà zrtheran p-
- . -. . . . ---—-- “ ‘°‘. itothesatisfaction
and VOC co Thsarta wWjie. . . trudJug tLat might occur ma owne,
determine whether tber$l a -. -, in
•g and stable coredation ecfl • : .The EPA does not believe that I tate would
daily and monthly emissions rates and - . enough Information at.thls I ...
bet eencrossf neaid lineby l ine .‘evflafth pn L
______ - m u enth ’nedabOVOoV urn O”t 1d the
.W)Jurveyaerospace ant • be subJec the.
.sotfrdJ to collect emisslonsi -. W .
.:cs&gundVOC c on t - pursiantt.
dally basli. These dataalso a onlBl(aX5). the fee provisions f,
to deWmin sectio 185, and t e buntp-up pro41s1o s
e nIsslons from day to day an d line to .• for fafiwelo attain for endue (section
lini.. ... • ... . .. : . • • : . q Uflch i ciable 1e1fl)(2),’ CO (Section 188(bXZ), andF.
(ill) Based on the ebóve Informat3 .. - - . . .. • or PM-b (section b88(bX2) NAAQ ’
EPA will determine the appropriatetiess - - -
ofdevelopIngproceduresforthne. . .‘. . . . a.. -- .. . .. . • ... •
ayeraging and line-byline cspllañce aume’ ‘ht ‘00 runs :. •
for.the g uphlc arts and aerospace. •. SectIon 107 of the 1890 CAAA adds sed xzuu
Industries and issue these proceduzei as several piovislois to the statute that . : ‘ As .oted. 179 5(d) utetes th.t P 44q
appropriate. • .. . -. create the first express authority for • azw 1t.k sl its .ta d.id.
When EPA completes this process,.It EPA IO heat 1r ttsn tribsias atate. for .
will then assess whqther It is feaslbj.. certain Actpurpo.e.. SeolldniW also ___
- and desirable to develop procedurei for.. allows strlbe.that qualiflis for: . . tbissuuiwimusd seesclstststaui..’
other sóurc catógoiies for which such. treatni ent isa Stats to develop aod A!dLflCtlSdlS5l& bthtstb.
%• kife aZ1. IL I . • ipplimbis .iuuwhIth n -
may appw n te.. . 5UIfllM W i 5 C uw ’ U &WM W UUU of ibs PM-lO durd.but
(c) RxploiIr marketobiepeimlss/. plan (1Z fcc ippmemnentaUqn oIths. , -• the u ite -:
allowance tmding.Th. EPA fully . - . NAA.QScn tribal land. (see Act. . stetos.sss - rem(bxs) I
expects that the use of ënilulons kadlng aectiola 110( 0) and 301(dfl..Unde .: - - ‘vI(BXd ) 5ussrslc__sitooal
and economic Incentives such as .. sectl n 3O1(d)(2), EPA Isreq ed tp ••• bz it nut tsr . - ’ 1 - srsss to.
marketable permits or allowance tijiding prom r!gulatious byMay 1W2’, __
will Increase as the Act is Implemented. for treating of tribes a. States. Sec oo WPA were b,-d itfy seth e isa before the
In addition, EPA Is committed to- 301(dX3) state. that EPA may - •Pr&.b dat.. A affect. woutd b
exploring way. to reduce the cost or prnmnJgate regulations .ettlngfcrth the ____ ___
burden to industry through the use of el ntkofTWs and procedures fore.. - ___ Is ’ thesi eiss
Innovative measures that use tbe• EPA action on them. In addition; section. 1 9 (B). is
marketplace toreduce costi. And, as - • 301(d)(4).tatesthatWhereEPA -
ntlonedinjts title V preamble. the-’ ilétermines that treatment of Indian .;‘ VXd) th 5 EPAfrO
EPAwanta to find ways to achieve th tzibeiasidentical to Stated Is not • . ____ ___
.goalsofthaAàt without requiring tlzne appropriate, the Agency ma by
usdmii IP.revisiouafor eveiy . : regulation pr vIde other meanó by .• I. br 4 .ied u.ipIuss . . Hy nstsr;
- cbei g at a source. w Ich EPA will directly wtn fnktei thAI Sluttis 17 d)costs a CI15 1 1 7
- One *ay. to S W revisions 1s these pro iilone. In the prearnbleito the.
through the use of repllcablé SIP . proposed and final rules, EPA will vslsjci refus — to ssuttse
pfocedweiIhgt aze-hñnfemenled by the discugs other Is i -Iating to . whea .
Lenslo
-------
H” t
13570 Federal Register / Vol. 57. No. 74 / Thursday. April 18 1992 I Proposed , Rulee
In demonstrating that an area could modeling (see guldanc docirnent Aco of the draft notice as
attain the relevant NAAQS but for entitled “Criteth for Assessing Role of submitted to 0MB, any doc&nents
emissions emanating from outside the Transported Ozone/Pi ecursors ln .Ozqne iccompany ng the draft, any written
United States, approved EPA modeling Nqnattalninent Areas”), rnw .h tha comments received fr m other agencies
techniques should be used whe tever . model with bouidaiy conditions that; (Ineludlng 0MB). and my written -•
possible. An emission Inventory ieflect general background. re pOnses to these comments have been
Inc poritIngveblde.mm1l nn2 ‘ concentrationaonthcU.S. 14e. IncludedIntheDodtet ’
regl.
foreign countiy must ha compisted by. receptor modeHn for PM*S1ates . AiIien vez the Agency Is ieqUIr d by
the state before modeling In tin. United should confer wim the appropriate EPA .. iectlon 553 .of the AM or any other law
States’ side only and attempting to Re onal Office to establish ajq r nIate : op’ii Hm h gençral notlcç and proposed
• demonstrate attainment. The EPA. tecmucal ?ufleflts1Ortheu, .:,’ p opose i ZIIJB, the
recognizes that adequate data may nor, analyses. .. , .: Ag thallpiopcse
• beàvailiblelnareaacutaldetheUalted . .avallablefgrmhliá’ccmmentà1nt1al ’
• States. ’fterefore 1 modeling (consistent - - . . , • .. S .,, • regu latoiyBe,dbilJty analysis.
with EPA’. “CuI °” on Air Quality I. UUY .• - . . ‘
• Models. Revised”) mà $iot l .)oeaIble . UnderExecatLve Order 1 9i. EPAJ,.. requirements do not apply fói the. ..
In afl ses. Because very law areas are . required to ludge whether .an éotionM .. Gen IP!eimb1e because Itis not a
likely to beaffected by this provision,. ‘mnJoz’ nà, thérefo e, subjecitó thm” reguiatom)racIJoniu the context blt e
ineo cbp -caae pe APA Or the Regulatory dhility Act.
satisfactorily made the requI ed that this action Is exempt from .-. Net AppSI IomMhlcs,shEwW b5..
demonstration. ‘The. State is encouraged classification as “major!.bec vse ft Is .. ‘1
to cneuIt.wIth the EPA Regional Office compilation of Interpretive nil. and - ‘i. . ___
• ndeveloplngany hemnate % . . •genemJ ofpelicyno I.rb 4 .. . • .. . ..
demonstration methods. Methodi dfa In the Mmmnatr.tive Pzucedare..Act . : WM LRC .. . .• •
the State may want toconsider lnthide (MA). Nevertheless. this noticewai: • .
isii goso”e cpl odeè that d ihvoIv submitted to the Office of MaI aru1am . IFRDo4.P 11ed445.. 02&tsam l
tema’ 1 i tromi onsfor” md Budget (0MB) for review. .. • “ .
-------
Tuesday
April 28, 1992
Part VII
Environmental
Protection Agency
40 CFR Part 52
State Implementation Plans; General
Preamble for the Implementation of Title
I of the Clean Air Act Amendments of
1990 Supptemental Proposed Ilule
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18070
Federal Register / Vol. 57. No. 82 I Tuesday. April 28. 1992 I Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
4OCFR Part 52
(FRL-4127-1J
StateimplementatlonPians; General
Preamble for the Implementation of
Title I of the Clean Air Act,
Amendments of 1990; SuppIe, ientaI
AGENCY: Environmental Protection
Agency (EPA).
ACTiON: General Preamble for future
proposed nilemakings; Appendice&
SUMMARY: The EPA published a General
Preamble for the Implementation of title
I of the Clean Air Act Amendments of
1990 on April 18, 992.(57 FR 13498). This
document describes EPA ’s preliminary
views on how EPA should interpret
various provisions of title I of the clean
Air, Act Amendments of 1990. primarily
those concerning State implementation
plan (SIP) revisions required for
nonattainmènt areas. It serves as
advance notice of how EPA generally
intends, in subsequent rulemakings. to
take action on SIP submissions.
‘The appendices to the General
Preamble were Inadvertently omitted.
The appendices contain important
support materials that are referenced
throughout the General Preamble.
Therefore, this notice, containing the
aforementioned appendices, serves as a
supplement to theiGeneral Preamble and
should be considered as such.
FOR FURTHER INFORMATION CONTACT:
Mr. Brock Nicholson. Chief, Policy
Development Section. Ozone/CO
Programs Branch (MD—15) at (919) 541—
5517. for issues related to ozone or
carbon monoxide; Mr Eric Ginsburg at
(919) 541-0877. Sulfur Dioxide!
Particulate Matter Programs Branch
(MD—is), for Issues related to sulfur
dioxide, particulate matter, or lead Mr.
Gary McCutchen at (919) 541-5592.
Permits Programs Branch (MD .15). for
issues related to new source review,
U.S. Environmental Protection Agency,
Research Triangle Park. North Carolina
27711; Ms. Pa t hla Van Läre at (202) 260—
3450 for issues related to mobile
sources, 401 M Street, SW. Washington,
DC2 O4Oa -
ADORESSES The appendices are also in
Air Docket A—9i—35, at 401 M Street.
SW. Washington. DC.
Dated: April 21. 1992.
Michael Shapiro.
Acting Assistant Aom.nistrotorforAir and
Radiation.
Appendix A—Glossary
ACT=atternative control technique
AVO=average vehide occupancy
BACM = best available control measures
BACI’=best available control technology
CAA=Clean Air Act
• CAAA=Clean Air Act Amendments
CARB= California Air Resources Board
CEMS=continuous emission monitoring
system
CO=carbon monoxide
‘CPM=condensible particulate matter -
CTG=fontrol technique guideI ine,
DO = Department of the Interior
• DOT=Department of Transportation
EKMA=Empirical Kinetic Modeling
Approach
ERC’=emissioñ reduction credits
— ETCdemployer transportation’ coordinator
ETPS=Emission Trading Policy Statement
FIP= Federal Implementation Plan
FMVCP — Federal Motor Vehicle Control
Program -
FR=Federal Register
GVWR=Grose Vehicle Weight Rating -
• HC=hydrocarbons
l/M=inspection and maintenance
IPP= inventory preparation plan
LAER= lowest achievable emission rate
MMS=Minerals Management Service
MSA/CMSA= metropolitan statistical area!
consolidated metropolitan statistical area
NAAQS= national ambient air quality
standards
NAS=National Aàdemy of Sciences
NOz=Nltrogen dioxide -
NO = nitrogen oxides
NSPS=new source performance standard
NSR=New Source Review
OCS . outer continental shelf
PSD=preventlon of significant deterioration
psl=pounds per square Inch
RACM=reasonably available control- -
measures
RACT=’reasonably available control
technology
RFP=reaeonable further progress
RTA=rural transport area
RVP= Reid vapor pressure
SCAQMD= South Coast Air Quality
Management District
SO, —sulfur dioxide
SIP= State implementation plan
TCM=’transportation control measures
TSP total suspended particulate (matter)
VOC=volatile organic compound
VMT=vehlcle miles traveled
.Appendfx 3—Bibliography and Cited
Refere ..c..
To obtain copies of OAQPS documents.
contact the EPA Library. (919) 541—5514:
(Fl’S) 629-5514. For OMS publications, please
contact Mark Wolcott, (313)668.4219. (Fl’S)
374-8219.
SIP Inventory Guidance/Requirements
“Procedures for Preparing Emissions
Projections,” EPA-450/4-91-019. U.S.
Environmental Protection Agency. Office of
Air Quality Planning and Standards,
Research Triangle Park, NC. July 1991.
“Procedures for Emission Inventory
Preparation, Volume IV: Mobile Sources,”
EPA -45o/4 -81 -026d, U.S Environmental
Protection Alency. Office of Mobile Sources.
Ann Arbor. MI. July1991. (also listed below
under General Inventory Guidancol.
“Procedures for the Preparation of
Emissions Inventories for Carbon Mona ide
and Precursors of Ozone. Volume I”. EPA—
450/4—91-016. U.S. Environmental Protection
Agency. Office of Air Quality Planning and.
Standards, Research Triangle Park. NC, May
1991.
“Procedures for the Preparation of
Emissions Inventories for Carbon Monoxide
and Precursors of Ozone. Volume II: Emission
Inventory Requirements For Photochemic’al
Air Quality Simulation Models.” EPA-450/4—
91-014. U.S. Environmental Protection
Agency. Office of Air Quality Planning and
Standards, Research Triangle Park, NC, May
.1991.
“Emission Inventory Requirements for
Ozone State Implementation Plans,” EPA—
450/4-91-010, U.S, Environmental Protection
Agency. Office of Air Quality Planning and
Standards, Research Triangle Park. NC.
March 991.’
“Emission Inventory Requirements for
-Carbon Monoxide,State Implementation
Plans,” EPA 45O/4 91 0r11. U.S
Environmental Protection Agency. Office of
Air Quality Planning and Standards.
Research Triangle Park. NC, March 1991.
“SIP Air Pollutant inventory Management
System (SAMS) Version 4.0 and SAMS User’s
Manual.” U.S. Environmental Protection
• Agency. Office of Air Quality Planning and
Standards. Research Triangle Park. North
Carolina, March 1991.
- “Example Emission Inventory’
Docwnentation for Post-1987 Ozone State
Implementation Plans (SIPs).” EPA-450/4-89 -
016. U.S. Environmental Protection Agency,
Office of Air Quality Planning and Standards.
Research Triangle Park, NC, October1989.
“Procedures [ or Estimating and Applying
Rule Effectiveness in Post-1987 Base Year
Emission Inventories for Ozone and Carbon
Monoxide State Implementation Plans,” U.S.
Envirdnmental Protection Agency. Office of
Air Quality Planning and Standards.
Research Triangle Park, NC. June 1989.
Quality Assurance/Inventory Review
Guidance
“Quality Review Guidelines for Post-1987
State Implementation Plan (SIP) Base Year
Emission Inventories (Draft),” U.S.
Environmental Protection Agency. Office of
Air Quality Planning and Standards.
Research Triangle Park. NC, February 1990.
(Final version to be completed In August
1991.)
“Guidance for the Preparation of Quality
Assurance Plans for 0,/CO SIP Emission
Inventories,” EPA-450/4-88-023, U.S.
Environmental Protection Agency. Office of
Air Quality Planning and Standards,
Research Triangle Park, NC. December 1988.
General Inventory Guidance -
- “Procedures for Emission Inventory
Preparation,” U.S Environmental Protection
Agency. Office of Air Quality Planning and
Standards. Research Triangle Park. NC:
a. “Volume I; Emission Inventory
Fundamentals.” EPA-450/4 -81 -026a.
September1981.
b. “Volume 11 Point Sources,” EPA-45014- .
81-0mb, September1981.
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Federal Register I Vol. 57. No. 82 I Tuesday. April 28. 1992 / Proposed Rules
18071
c. ‘Volume 111: Area Sources.” EPA—4501 4—
81- 098c. September1991.
d. ‘Volume IV: Mobile Sources.” A-4S0J
4-81-4128d (Revi.edl. July 1981.
e. ‘Voluese V: Sibk’ graplty ’ EPA-450/4-
81- e. September1981.
Emmnnon !a ors! 1odele
Personal Computer Version or the
Biogenic EmissIons t v fdOij System (PC—
BEIS) With User’s Gulda,’ EPA-.45014-I1-
017. U.Sh Envwonmemmtal Protection Agency.
Office of Air QuaIlty.Plannrng and Standards.
Research Triangle Park. NC. July1991...
‘User’s Cuide to MOB1LEO (MoblieSource
Emission Factor ModeIJ7 EPA-AA-TEB-89--
01. U.S. Eiwlrenmental Protection A ency.
Office of Mobile Sources. Ann Arbor. Ml.
• February ioaa (Revised version of MOBILEs,
anddocumentationtobeoompleted,in July
199w .j
lampommdiuent ModehngSystem”.
(SIMSI Version 2.0 User’s Manual.” EPA-4501
4—9O-019a. U.S Environmental Protection
Agency. Office of Air Quality Planning end
Standards. Research Triangle Park. NC.
Se ptember 1900.
“Background Document for Surface
impoundment M iog S m (SIMS)
Version 2.0, A-45014-99.Ol9b7 US.
Environmental Protection Agency. Office of
Air Quality t m ing and Standards.
Resesrck Th...de Park. NC. September1900.
“AIRS Facility Subsystem Source
Clemifiri.bga Codes (SIX sJ and Emission
Fectort’.thigkrCaitai. Polkataist47 U.S.
Environmental Protection Agency. Office of
Air Quality Planning and Standards.
Research Th.ngio Pork, NC. September1909.
“Cempilatlan of Ali ’Pullut.nt Emission
Factor,. Volumes I and U and Its
supplements. FoseTh Edition.” AP-42. US.
Eiwironmeatal Protective Agency. Office of
Air Quality mg and Standards.
Rem..,.k Thangle PazI . NC, September lOSS.
Citations and Guidance for SIP CorrectIons
“Cuidsnce Documenl for Cbrrecflon of Part
D SIF 5 for Nonattainment Areas,” EP A.
Office of Air Quality Planning and Standards.
Research Triangle Park. NC. Jeivoe ly 27.i991.
Citations and Guidance for PM—b
“Assessment of the Controllability f:
Conde ” ibio Pertinalsie Msttes.’ EPA’.98 S-- _____
98-7 5. October 1900. -.
‘ Pmon far Es&nattag Prebabdity d
Nonattainment of aPM—IONAAQS Us
Total Suspended prL l s c ( PM ’. Det7
EPA /4 -as-OIL Il mb Memeranda
‘PM 4O SW De .Ii Ijtta1i.i. ’ foes
1987, - . DJd I ’.;c
Ii’ . . — —-‘•— Zl C....
EPA-450/3-ea-OO8 September1988.
“Guidance Document for Residential Wood
Combustion Emission Control Measures.”
EPA-450/Z-89-O15. September1980. -
“Prescribed Fire Smoke Management
Guide.” NFES Ns. lV9. February 1985.
Fire P anGuide. ” tS Nob, -
1939. August 1980. -
Citations and Guidance iorSO ,
“SO 1 Cu4dellns.”SI A4-49 -OI9.
“SOs Guideline Appendleee.” EPA-45912—
89-019. October1988.- -
‘letter from William Reilly to
Representatwe John Dingell. In Response to
questions and GAO report.” April 10. 1991.
Citations and Cui tance for Lead
‘Updated information on Approval and
Promulgation of Lead Implementation Plans.”
U.S. Environmental Protection Agency.
Research Triangle Path. NC. July1985.
“Guideline Series. Development of
Ezample Control Strategy for Lead.” EPA-
450/Z—79-4l02.Aprd i9 .
‘-‘Guideline Series. Supplementary
Guideline for Lead Implementation Plans.”
EPA-450IZ -78-038. August 1978.
Modeling Guidance
‘11AM ApPlications Guidance.” May loot.
“User’s Guide for the Urban Airshed
Model. Vol.47 EPA-450/4-90 -0070. June
1990.’
‘(uidance on Air Quatlty Models
(Revised)” EPA-45012-78-027R. July1988.
“Interim Procedures for Evaluating Air.
Quality Models: Experience with
lmptementatlon.” EPA 450/4—85-006 ..July
1985.
NewSource Review Guidance
“New Source Review Prevention of
Sigsifinmt l)etemios -ation and Nonattaininent
Area Guidance Notebook.” January 1988.
“Deaft Workshop Manual for New Source
RevIew (NSR) Programs.” December1980.
Miscellaneous Guidance
“Criteria 1w Aueuing the Role of
Transport of OzonelPrecursers in Ozone
Nonattainment Areas.” US. Environmental
Protection Agency. Research Tnaogli Park.
NC. EPA-450/4-01-015).
“Enforcement Cuidance far Stage I I
Vehicle Refueling Control Programs.”
December 1991. -
“Getting Started on title L” U.S.
Environmental Protectios Agency. OAQPS
Research Triangle P rk. NC., April1991.
“Issues Relating to VOC Regulations,
Cutpolnts. Defidencies. and Deviations.”
Cl c Ion te Appendix I) of November24.
1987 FR (Blue Book. revised J aiy11 19O .
U.S. Environmental Protection Agency,. Office
of Air Quality Planning and Standards.
A( ESL May28. 1988.
“Protscoim Can Coaters. 4SFR (December
8. 198I + Topceatera7 EPA-.450/3-08-OIS
“Te 1i_L_I Guidance—Stage II Vapor
- R . , System for Control of Vehicle
R. .flml at Gasoline Dispensing
FaciIIties7 Volume 1. November1991.
Memorandum from William Laxton.
Director. Technical Support Division. to
Regional Air Division Directors. “Guidance
for Determining Significant Stationary
Sources of Carbon Monoxide.” May 13.1992.
Memorandum from John SeitL OAQPS to
Air Division Director. Regions l-X. “New
Source Review (NSR) Program Transitional
GuIdance,” March 11, 1991. -
Memorandum from John Calcagni and
William Laxton. ‘Inlerun Guidance on
Emission Limits and Stack Test Methods for
Inclusion in PM-IC SW , .’ December 24. 1990.
Memorandum from Robert Bauman and
Rich Biendi to Air Branch Chiefs. “SOs SIP
Deficiency Cltecldist7 November24. 1990.
Memorandum from Joseph Tikvart and
Robert Bauman concerning modeling
guidelines addressing PM—b. dated July 15.
1990.
Memorandum from William Laxton.
Director. Technical Support Division. to
Regional Air Division Directors. “Ozone and
Carbon Dioxide Design Value Calculations.”
June 18. 1990.
Memorandum from Craig). Potter. “Interim
Policy on Stack Height Regulatory ‘Actions.”
April 22. 1988.
Memorandum from Gerald A. Ernison,
Director. OAQPS. to Regional A1L Division
Directors. “Transmittal of Reissued OAQPS
CEMS Policy7 March 31.1988.
Memorandum from John Seitz, Director.
Stationary Source Compliance Division. to
Regional Air Division Directors,- -
“implemectation of Rule Effectivenesi
Studies.” March 31.1988.
Memorandum from Craig Potter. Thomas
Adams. and Francis Blake to Regional Air
Division Directors, “Review of State -
Implementation Plans and Revisions for
Enforceability and Legal Sufficiency.”
September22. 1987
Memorandian from Gerald Emison.
Director. OAQPS. toDavid Ken. Director. Air
Management Division. Region V. “Need for a
Short-Term BACT Analysis for the Proposed
William A. Zimmer Power Plant.” November
24.1988.
- Memoramiduin from Richard Rimoads,
Director CPDD. to Division Directors. Regions
I-IC. “Growth Restrictions In Secondary
NAAQS Nonattainment Areas.” October28,
1980. - -
Memorandum from IL Strelow to RA’s
Region I- I C . “Guidance for Deter!nhu ul0
Acceptability of SW RegulatIons in Non-
Att - ’ at Areas.” December 9.1978,
Federal ReglsterC ilalions
44FR28572.Aprfl4.1979. -
44 PR 20375. April 4.1879.
44 PR 53782. September17. 1979.
44 FR 53780. September 17.1979.
44 FR 53791. September V 1978.
45 FR 52870. Auguèt 7.1980.
46 FR 7182. january 21. 1981.
48 PR 7187. January 22.1981.
51 FR 43812, December 4.1986,
51 FR 43814. December 4.3986.
51 FR 43832. Decemuber4. 1986.
52 PR 29383. August?. 198Z.
52 FR 45044. November24, 1987,
53 FR34560. September 7. 1988.
54 FR 512. January 9,1989.
55 FR 30973. july30. 1990.
55 PR 41548. October12. 1990.
55 FR 41547, October12. 1990.
55 FR 4W99. October31. 1990
56 FR 5460. February 13.1991.
58 FR 11101. March15. IDOL
58 FR 10214. April 12.1991.
50 FR 23824, May 24. IDOL
56 FR 37227. June 13.1991.
56 FR V , June 14.1991. - - -
50 FR 31151. July 9. iDOL
50 PR 31154. July19. 1991.
50 FR 37654. August 8.1991.
58 FR 43593. . .pi . ..Jier 3.199 1.
50 FR 34554. October22. 1991.
SUE 56694. Novemberl. 2901.
58 FR 58050. November21. 1991
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Federal Register /
Vol. 57, No. 82 / Tuesday. April 28. 1992 I Proposed Rules
Code of Federal Regulations Citations
40 CFR 508.
40 CFR 50.9 Appendix H.
40 CFR 509.
40 CFR Part 51.
40 CFR Part 51 Appendix M
40 CFR Part 51 Appendix S.
40 CFR 51. 100(o).
40 CFR 51.11O(c)(1).
40 CFR 51.117.
40 CFR 51.165.
40 CFR 51.166.
40 CFR 51.340 (Subpart R).
40 CFR Part 52.
40 CFR 52.10.
4OCFR 52.21.
40 CFR 52.24.
4 OCFRPart55.
40 CFR Part 58.
40 CFR Part 60.
40 CI R Part 60 Subpart Da.
40 CFR Part 81.
Appellate Court Citations
Alabama Power Company v. Costle. ’638 ’
F.zd 323. 360-61, 404-05 (D.C. Cir. 1980).
NRDC v. Thomas. 838 F.2d 1224. (D.C Cir.
1988). Cert. denied. 109 S.CL 219(1988).
Delaney v. EPA, 898 F.2d 687,138 Cong.
Rec. S16971 (October 27, 1990).
House of Representahves Reports
H.R. Rep. No. 490,101st Congress. 2nd
Session, pt. 1 at 204. 239,242.257.258.267,
268. and 381.
Appendix Cl—Available Fugitive Dust
Control Measures
Background
The available control measures listed
below apply to all fugitive dust sources
except those to which only available control
technology is applicable (I.e.. process fugitive
dust associated with stationary sources).
Fugitive dust is particulate matter suspended
In the air either by mechanical disturbance of
the surface material or by wind action
blowing across the surface. Mechanical
disturbance Includes resuspension of
particles from vehicles traveling over
roadways, parking lots, and other open areas.-
Wind action includes dust blown off
inadequately stabilized open areas. The
quantity of fugitive dust emissions is
dependent upon several factors such as the
size of the source, emission rate, and control
efficiency. The Environmental Protection
Agency’s (EPA) policy Is to reduce fugitive
duaj emissions, with an emphasis on.
i venting. rather than mltigatfng them. For
example, past efforts to control emissions
from paved roa4s have usually relied on
street cleaning tb reduce silt loading. The
new approach would put a higher priority on
measures to prevent silt (rota getting on the
road surface. Mitigative measures should be
reserved for those areas/situations where.
prevention is not feasible. Technical guidance
on fugitive dust control measures is found in
Control of Open Fugitive Dust Sources (EPA-
450/3-68-008 September. 1988).
List of Available Coat vol Measures
1. Pave, vegetate, or chemically stabilize
access points where unpaved traffic surfaces
adjoin paved roads.
2. Require dust control plans for
construction or land clearing projects.
3. Require haul trucks to be covered.
4. Pro ide for traffic rerouting or rapid
clean up of temporary (and not readily
preventable) sources of dust on paved roads
(waler erosion runoff, mud/dirt carryout
areas, material spills, skid control sand).
Delineate who is responsible for cleanup.
5. Require paving, chemically stabilizing, or
otherwise ttabilizlng permanent unpaved
haul roads, and parking or staging areas at
commerciaL municipal, or industrial facilities.
6. Develop traffic reduction plans for
‘unpaved roads. Use of speed bumps, low
speed limits. etc.. to encourage use of other
(paved) roads. -
7. Limit use of recreational vehicles on
open land (eg., confine operations to specific
area’s. require use permits, outright ban).
8. Require Improved material specification
for and reduction of usage of skid control
sand or salt (e;g.. require use of coarse.
nonfriable material during snow and Ice
season).
9. Require curbing and pave or stabilize
(chemically or with vegetation) shoulders of
paved roads.
10. Pave or chemically stabilize unpaved
roads. -
11. Pave, vegetate, or chemically stabilize
unpaved parking areas. -
12. Establish dust control measures for
material storage piles.
13. ProvIde for .torm ‘water drainage to
prevent water erosion onto paved roads.
14. RequIre vegetation, chemical
‘stabilization, or other abatement of wind’
erodible soil, including lands subjected to
water mining, abandoned farms, and
abandoned construction sites.
15. Rely upon the soil conservation
requirements (e.g., conservation plans.
conservation reserve) of the Food Security
Act to reduce emissions from agricultural
operations.
Appendix .—Avallahle Residential Wood
Combustion Control Measure.
Background
Wood smoke from residential wood stoves
and fireplaces isa significant source of PM-
10 pollutIon In some areas in the western
United States that do not attain the PM—ia
ambient air quality standards. For example,
In some mountain communities, atmospheric
inversions can trap wood smoke particulate.
in valleys and cause PM—b concentrations to
reach levels well In excess of the standards.
The U.S. EPA’. new source performance
standard (53 FR 5860. February 28.1988) Is a
longierm strategy designed to improve the
performance of wood burning devices
nationwIde. The EPA believes that this
standard alone, though, may not result in
attainment of the PM-.i0 air quality standards
in areas affected by wood smoke. Additional
available control measures are listed below.
They are intended to (1) reduce emissions
from current stoves through inspections.
education, and shifting to deaner stoves or
- fuel; (2) curtail the use of wood stove. or
fireplaces during adverse meteorological
conditions, and (3) lImit future growth In
emissions. Mdltlonal guidance on these
measures Is contained In EPA-450/2-89-015
(September 1989). Guidance Document for
Residential Wood Combustion Emission
Control Measures. Nothing in this document
prevents a State implementation plan (SIP) in
I moderate PM—b nonattainment area from
containing control measures more stringent
than RACM. .
List ofAvasloble Control Mea ures
1. Estdblish an episode curtailment
program, thcluding A curtailment plan: a
communication strategy to Implement the
plan: a surveillance plan (e.g.. “windsliield ’
survey, opacity !ri89er and enforcement
provisions including procedures, penalties.
and exemptions). A voluntary program will
be deemed reasonable if the area
demonstrates attainment.
2. Establish a public information program
to inform and educate citizens about stove
sizing, Installation, proper operation and
maintenance, general health risks of wood
smoke, new technology stoves, and
alternatives to wood beating. . -
3. Encourage improved performance of-
woodburning devices by
—Establishing a program to Identify, through
opacity observation, deficiencies in stove
operation and maintenance. (Under such a
program, advice and assistance should be
provided to the Identified households to
help reduce visible emissions from their
devices.)
—Providing voluntary dryness certification
programs for dealers end/or making free or
Inexpensive wood moisture checks
available to burner..
—Evaluating and encouraging, as
appropriate, the accelerated changeover of
existing devices to new source
performance standard or other clean
burning new or existing technology stoves
(e.g., hybrid designs. pellet stoves) by such
approaches as subsidized stove purchases
tax credits, or other incentives.
4. ProvIde inducements that would lead to
reductions In the stove and fireplace
population (or use) by:
—Slowing the growth of woodburrnng
devices In new housing units by taxes.
installation permit fees, or other
disincentive..
—Encouraging a reduction In the number of
woodburning devices (I.e., removing or
disabling the devices) through tax credits
or other Incentives.
—Discouraging the resale of used stoves
through taxes, fees, or other disincentives.
—Discouraging the availability of free (or
very inexpensive) firewood by increasing
cutting fees or lImiting the cutting season.
Appendix C3—Presaibed Burning Control
Measures
Background
Prescribed burning, including silviçultural
and agricultural burning, is a contributor to -
PM—la nonattainment in some regions. In
many cases. well-established smoke
management approaches are not being
followed, resulting In avoidable air quality
problems. The EPA has been workln closely
- with the National Wildfire Coordinating
Group (NWCG) to develop appropriate
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Federal Register I -Vol. 57, No. 82 / Tuesday. April 28. 1992 I Proposed Rules
18073
guidance. The objective is to establish smoke
management (SM) programs in these areas
which constitute reasonably available control
measures (RACM). and reduce population
exposure to smoke from prescribed burning.
while assuring that resource management
goals are met.
States should address emissions from
prescribed burning In a manner that balances
natural resource. agricultural, and other -
burning objectives with air quality goals and
objectives, by utilizing a smoke management
program as described in the NWCG’e
Prescribed Fire Smoke Management Guide
(NFES No. 1279. February 1985) and the
Prescribed FIre Plan Guide (NFES No. wig,
August1980). publications of the Boise /
(Idaho) Interagency Fire Center.
The scope of a SM program should reflect
the specific conditions and requirements of a
local area. Existing programs may be
adequate In many cases and in other cises
may provide a basis for developing a refined
program. Smoke management should
encourage the áooperative efforts of local.
State. Federal. and private land managers.
Emphasis should be on conducting burns
under an established planning process.
For the purpose of PM—1O SIP development.
the term prescribed burning includes all open
burning of vegetative matter. This Includes
both planned ignition and prescribed natural
fire. Nothing in a SM program constituting
RACM is intended to influence vegetation
management or fire suppression practices ep
as to Increase the potential for wildfire to the
point that natural resources or public safety
are compromised.
The EPA believes it Is reasonable that a
SM program apply in those moderate PM—SO
nonattainment areas where it has been
shown, through monitoring, modeling, or
other analysis, that prescribed burning can or
does contribute to violations of the PM—SO
national ambient air quality standards
(NMQS). The SM program should also apply
to areas outside of the nonaltainment area if
it Is shown that prescribed burning outside of
the nonattainment area can or does
contribute to NAAQS violations. The
prescribed burning control measures
reasonably may be limited only to the
season(s) when high ambient PM—SO
concentrations occur, if It can be shown that
the annual PM—b NAAQS is not violated.
See HR. Rep. No. 490.101st Cong., 2d Seas.
288-289(1990).
Source categories (e.g.. burning of
fencelines, ditch banks, small brush piles.
small prescribed natural burns, garden plots)
may not bç reasonably controlled wheretheir
impact is db minimis based on consideration
of their collective Influence on PM—SO
emissions, their duration. season, and
proximity to potentially affected populations.
An SM program should consist of at least
the following components:
Smoke Dispersion Evaluation
As a minimum. the 5 program should use
National Weather Service forecasts or other
meteorological analyses to determine when
meteorological conditions are favorable or’
unfavorable for dispersion and transport of
smoke(I.e., “burn days,” “no burn days”).
Burn Planning, Authorization, and
Administ mt/on
The smoke management program should
provide a process (e.g.. telephone call.in) for
receiving burn requests, evaluating requests
end granting approval for burns. Approval of
a bum should be based on an evaluation of
the airshed’s capacity/capability to disperse
emissions on allowable burn days so that the
cumulative emissions from all burns and
other sources in the airshed will not cause or
contribute to violations of the PM—SO
NAAQS. The approval to burn on a burn day’
should be equitably divided among all
categories of burners requesting approval to
burn while accommodating the “incentives”
specified elsewhere in this policy.’
Requirements for Ensuring Burner
Qualifications
Voluntary training In smoke management
techniques should be reasonably available-
for all burners. The program should include
incentives for burners who complete the
voluntary training (e.g.. priority for approval
to burn on “burn days”).
Public Education ondAwareness
Information programs on the nature of and
reasons for smoke management should be
periodically presented to the public (e.g..
public service announcements, newspaper
articles).
Surveillance and Enforcement
The SM program should rely on routine
PM—SO monitoring, and/or modeling
supplemented by periodic visual assessments
of the effectiveness of the dispersion
evaluation program. The existing PM—SO
monitoring netwoi’k should be evaluated for
its ability to provide ln(ormation on the
effectiveness of the SM program as applied to
burning conducted in and near the
nonattainment area. The network should be
modified as appropriate. The program should
also provide a process for documenting and
following up on public complaints and should
provide for and levy fines against burners
who violate any of its mandatory
requirements.
Emission Inventories and Emission Efforts
States should develop and maintain an
emission inventory for prescribed burning
and all burns should be categorized as to
their purpose. Documentation of the size.
date, purpose, and emission reduction
measures used should be submitted following
each large burn. Emission reduction
techniques (e.g.. mass ignition, rapid mop-up)
should be encouraged and Incentives (e.g..
priority for approval to burn on “burn dayV’),
s) ould be offered for demonstrated emission
reduction efforts, including the use of
alternatives to burning. provided that such
incentives can be utilized without
compromising resource management
objectives.
State Oversight
The relationship of the State sir pollution
agency with other State agencies to which
management of the SM program may have
been delegated will need to be determined on
aState.by-State basis, Nevertheless. State
rules and regulations should be enacted in
such a manner that all provisions of the SM 5
program are enforceable by the State through
its State implementation plan. Generally.
memorandums of understanding should be
utilized to clearly specify working
relationships among agencies. -
Appendix C4—RACT Determinations for
Stationary Sources
Background -
Congress has for the jecond time in
amending the Clean Air Act (Act) specifically
required that reasonable available control
technology (RACT) be applied to existing
stationary sources in nonattainment areas. iii
section 172(b)(3) of the Act. as amended in
1977, Congress specified that nonattainment
area plans were to “require,’ ‘
reasonable further progress’ including
such reduction in emissions from existing
sources in the area as may be obtained -
through the adoption, at a minimum, of
reasonably available control technology.”
Thus. RACT was required in SiP’s developed
for areas that were designated nonattainment
for total suspended particulate matter. Now,
in section 172(c)(l) of the Clean Air Act. as
amended by the Clean Air Act Amendments
oF 1990 (Nonattainnient Plan Proviaions—ln
General), Congress again requires that
nonattalnment area plans provide for”’
such reductions in emissions from existing
sources in the (nonattainment) area a hy -
be obtained through the adoption, at a
minimum. olressonably available control
technology.” Thus, RACE is now required for
PM-SO nonattainment area SIP’s,
The EPA recommends that the RACI’ for a
particular source continues to be determined
on a case-by-case basis considering the
technologIcal and economic feasibility of,
reducing emissions from that source (through
process changes or add-on control
technology). The following technological and
economic parameters should be considered in
determining RACT for a particular source.
Technological Feasibility
The technological feasibility of applying an
emission reduction method to a particular
source should consider the source’s process
and operating procedures. raw materials,
physical plant layout, and any other
environmental impacts such as water
pollution. waste disposal. and energy
requirements. The process. operating
procedures, and raw materials used by a
source can affect the feasibilIty of
Implementing process changes that reduce
emissions and the selection of add-on
emission control equipment. The operation of
and longevity of control equipment can be
significantly Influenced by the raw materials
used and the process to which it is applied.
The feasibility of modifying processes or
applying control equipment is also influenced
by the physical layout of the particular plant,
The spaceivailable in which to implement
such changes may limit the choices and will
also affect the costs of control.
Reducing air emissions may not justify
adversely affecting other resources by
increasing pollution of bodies of water,
creating additional solid waste disposal -
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18074
problems or creating excessive energy
demands. (An otherwise available PM—to
control technology may not be reasonable if
these other environmental impacts cannot
reasonably be mitigated.) For analytic
purposes, a State may consider a PM—tO
control measure technologIcally infeasible I L
considering the availability (and cost) of
mitigative adverse impacts of that control on
other pollution media, the control would not,
in the State’ i reasoned ludgment, provide a
net environmental.beñeflt. In many Instances.
however, PM—tO control technologieshave
known energy penalties and adverse effects
on other media, but such effects and the seal
of their mitigation are also known and have
been borne by owners of existing sources In
numerous case.. Such well-established
adverse effects and their costs are normal -
and assumed to be reasonable and should
not. in most cases, justify nonuse of the PM—
10 control technology. The costs of preventing
adverse water, solid waste and energy
impacts will also influence the economic
feasibility of the PM-to control technology.
Alternative approaches to reducing
emissions ofparticulate matter laduding PM-
10 are discussed in Control Techniques for
Particulate Emissions [ rein Stationary
Sources—Volume I (EPA-450/3-81-(105a) and
Volume U (EPA-450/3-81-005b), September
1982. The design, operation and maintenance
of general particulate matter contol systems
such as mechanical collectors, electrostatIc
preclpltators, fabric filters. and wet .cnibbers
are discussed In Voiwne L The collection
efficiency of each system Is diacuseed as a
function of particle sIze. lnformation Is also
presented regarding energy and -
environmental considerations and procedures
for estimating costs of particulate matter
control equipment, The emission
characteristics and control technologies
applicable to apecifth source categories are
discussed In Volume II. Secondary
environmental Impacts are also discussed.
Additional sources of Information oa
control technology are background
information documents for new source
performance standards and Identification,
Assessment, and Control of Fugitive
Particulate Emissions. FPA-800I&-1G-023,
August 1980.
In some instances. control technologies
more modern or more advanced than those
described in the documents referenced may
exist In such cases, the State’s RACE
analysis for a source should consider such
ailable technology.
Economic Feasibilley
Economic feagibility consider. the cost of
reducing emlssidns and the difference In
costs between the particular source and other
similar sources that have implemented
emission reduction, As discussed above, EPA
presumes that Ills reasonable for similar
sources to bear similar costs of emission
reductions. Economic feanbility rests very
little on the ability of a particular source to
“afford” to reduce emissions to the level of
similar sources. Less efficient sources would
be rewarded by having to bear lower
emission reduction costs if affordability were
given high consideration. Rather, economic
feasibility for RACT purposes is largely -
determined by evidence that other sources in
a source category have in fact applied the
control technology in question.
The capital costs. annualized coals, and
cost effectiveness of an emIssion reduction
technology should be considered in
determining its economic feasibility. The
OAOPS Control Cost Manual, Fourth Edition,
EPA-450/3-9O-006, January 1990, describes
procedures for determining these coats. The
above costs should be determined for all
technologically feasible emission reduction
options. /
States may give substantIal weight to cost
effectiveness in evaluating the economic
feasibility of anemlssion reduction
technology. The cost effectiveness of a -
technology Is Its annualized cost (Sf year)
divided by the amount of PM-to emission
reduction (i.e., tonslyear) which yields a cost
per’amount of emission reduction’ (S/ton).
Coat effectiveness provides a value for each
emission reduction option that Is comparable
with other options and other facilities.
U a company contends that it cannot afford
the technology that appears lobe RACI’ for
that source or group of sources, the claim
should be supported with each Information as
the impact on; , ‘ -
1. Fixed and variable production costs (S /
unit).
2. Product supply and demand elasticity.
3. Product prices (cost absorption vs. cost
pass-through).
4. Expected costs Incurred by competitors.
5. Company profits, and
‘0. EmploymeaL
11 a company contends that available
control techociegy Is not affordable and
would lead to dosing the facility, the costs of
closure should be considered. Closure may
incur costs for demolition, relocation.
severance pay. etc.
Appendix D
United States Environmental Protection
Agency. Office of Air Quality Planning and
Standards, Research Tnangla Park, North
Carolina 27711.
March 11. 1991.
Memorandum
Subject New Source Review (NSR) Program
Transitional Guidance.
From: John S Seitz. Directos Office of Air
Quality Planning and Standards (MD-
10).
To: Addressees.
The Clean Air Act Amendments of 1990
(1990 Amendments) make numerous changes
to the NSR requirements of the prevention of
significant deterioration (PSD) and
nonattainment area programs The 1990
Ampnabn.nts create new and expanded
nonattainment areas, extend PSD coverage to
current Class I area boundaries, and mandate
a PSD exemption for certain hazardous air
pollutants. The Environment Protection
Agency (EPA) intends to propose by
September of this year a regulatory package
that will implement these and other changes
to the NSR provisions. Final adoption of
ihese revised regulations is projected for
August1998. In the interim period ’between
passage of the 1980 Amendments and
adoption of the Agency. final regulations.
EPA expects that numerous issues regarding
the 1990 Amendments will arise. This
memorandum sets forth the Agency’s position
on the most Important of these transitional
Issues Involving the NSR program.
This guidance document does not
supersede existing Slate regulations or
approved State Implementation plans.
Howevçr. in some cases, It calls upon States
to implement their NSR ‘programs in a manner
consistent with provisions of the 1090
rnendments that are applicable immediately
and with the requirements that flow directly
from these previsions. Nonetheless. the
policies set out In this transition
memorandum are intended solely as guidance
and do not represent final Agency action.
They are not ripe for judicial review for this
reason. Moreoven they are not Intended, nor
can they be relied upon, to cre te any righti
‘enforceable by any party In litigation with’
the United States. The EPA officials may
decide to follow the guidance p ovlded In this-
memorandum, or to act at variance with the
guIdance, based on an analysis of specific
circumstances. The Agency also may change
this guidance at any time without public
notice.
The Regional Offices should send this
guidance document to their States. Questions
from States and applicants concerning
specific Issues and cases should be directed
to the a 1 ,pr ,leta EPA Regional Office. if
you have any gener4 1 guesttona, please
contact fir. Michael Sewell of the New -
Sowee Review Section at FF5 629-0073 or
(919) 541-0982.
Attachment
Addressees.
Director. Air, Pb.tlddes, and Toxics
Management DMslon. Regions 1, IV, and
VI
Director. Air and Waste Management
DivIsion. Region H
Director. Air Management Division, Regions
Ill and IX
Director, Air and Radiation Division. Region
V
Director, Air and Toxics Division, Regions
VII, VIII, and X
cc:
J. Calcagni
R. Campbell
W. Laxton
E. Lillis
J:Rasmc
I. Wegman
J. Weigold
NSR Contacts
Corrections to Original Document Two
errors In the document as issued on March11,
1991 have been corrected in this copy. On
page 2 on the last line. “CFC 112 ” is changed
‘to correctly read “CFC 113”. On page 8 in
Item 4, the cite “Section 172(b)’ is changed to
correctly read “Section 173(b)”. -
New Source Review (NSR) Transitional
Guidance
Toxics and Notional Emissions Stondords for
Hazardous Air Pollu Sonts (NESHAPS) Issues
1: €di(,,, 112 Hazardous Air Pollutant, ars,
No Longer Considered Regu!a’ed Pollutant,
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Under Prevention of Significant Deterioration
(PSD). but NESHAPS Still Apply.
Under the 1977 Amendments to the Clean
Air Act (Act) and regulations issued
thereunder, the PSI) requirements of the Act
apply to all “major” new sources and “major”
modification,, I.e.. those exceeding certain
annual tonnage thresholds (lee 40 CFR
52.21(b)(l)(i) and (b)(2)(lfl. Typically, new
/ sources and modifications become subject to
PSD because they exceed the specified
tonnage threshold for a criteria pollutant. i.e.,
a pollutant for which a national ambient air
9 uality standard (NAAQS) lips been
established under section 109 of the Act.
Once a new source or modification is subject
to PSD. the PSD requIrements apply to every’
pollutant subject to regulation under the Act
that is emitted in “significant” quantities (or.
In the case of a major modification, for which
there Is a significant net emissions increase)
(see 40 CFR 52.21(b)(23) and (i)(2)). Under the
1977 Amendments, best available control
technology (BAC J and other P60
requirements apply not only to emissions of
criteria pollutants but also to emissions of
pollutants regulated under other provisions of
the Act, such as section 111 or 112. This
regulatory structure was altered by the 1990
Amendments.
Title. lii of the 1990 Amendments added a
new section 112(b)(6) thatexcludes the
hazardous air pollutant9 listed in section
112(bJ(1) of the revised Act (as well as any
pollutants that may be added to the list) from
the P90 (aM other) requirements of Part C.
Thus, because they, are on the initial Title Ill
hazardous air pollutants list, the following
pollutants, which had been regulated under
PSDbecausetheywerecoveredbythe -
section 112 NESHAPS or section 111 new
source performance standards (NSPS)
program, are now exempt from Federal PSI)
applicability:.
• Arsenic
• Asbestos
• Beuzene (including benzene from gasoline)
• Beryllium
• Hydrogen sulfide (HS)
• Mercury
• Radionuclides (including radon and
polonium) -
• Vinyl chloride
The Title Ill exemption applies to final
Federal PSD permits (I.e.. those issued In final
form and for which administrative appeals, if
any, under 40 CFR 124.19 have been
exhausted) issued on or after the date of
enactment of the 1990 Amendments
- (November IL 1990). Poe-Federal P90 permit
applications now undar,rsvlew by either an
EPA Regl nal Office or a delegated State.
P80 permit requirements do not apply to the
pollutants exempted by Title IlL For Federal
P90 permits contaIning PSI) requirements for
the pollutants exempted by Title W issued on
or after November15, 1990, the permittee
may request a revision (e.g.. removal of a
BACT limit for benzene) to their P80 permit
to reflect the Title ill exemption from Federal
P80 applicability.
Note that pursuant to section 116 and the
preservation clause in section 112(d)(7) of the
amended Act, States with an approved P90
program may continue to regulate the Title III
hazardous air pollälants now.exempted from
Federal PSI) by section 112(b)(6) if the State
ND regulations provide an independent
basis to do so. These State rules would
remain in effect unless a State revised them
to provide similar exemptions. Additionally.
the Title III pollutants continue to be subject
to any other applicable Slate and Federal
rules: the exclusion is only for Part C rules.
Finally, section 112(q) retains existing
NESHAPS regulations by specifying that any
standard under section 112 In effect prior to
the date of enactment of the 1990
Amendments shall remain In force and effect
after such date unless modified as provided
in the amended section. Therefore, the
requirements of 40 CFR 61.05 to 01.08
Including preconstruction permitting
requirements, for new and modified sources
subject to existing NESHAPS r guIations are
still applicable.
In summary, the pollutants currently
regulated under the Act as of Mardi 1991 that
are still subject to Federal PSI) review and
permitting requirements arm
• Carbon monoxide
• Nitrogen oxides
• Sulfur dioxide
• Particulate matter and PH—b
• Ozone (volatile organic compounds)
• Lead (elemental)
• Fluorides
‘• Sulfuric acid mist
• Total reduced sulfur compounds (Including,
H 1 S)
• CE 11.12,113,114.115,
• ‘HMbis 1211.1301.2402
• Municipal waste combustor (MWC) acid
gases, MWC metals and MWC organics
2. Hazardous Air Pollutants that are
Regulated as One Component of a More
Ceneral Pollutant Under Other Provisions of
the Clean Air Ant are Still Regulated.
Any hazardous air pollutants listed in
section 112(b)(IJ which ate regulated as
constituents of a more general pollutant listed
under sectIon 108 of the Act are still subject
to P90 as part of the more general pollutant.
despite the exemption in Title IlL For
example, volatile organic compounds (VOC’s)
(a term which includes benzene. vinyl
chloride, methanol. toluane, methyl ethyl
ketone, and thousands of other compounds)
are still regulated as VOC’s (but not as
individual pollutants such as benzene. etc.)
under the P90 regulations because these
pollutants are ozone precursors . not because
they azeair tonics. Also, particulatee
(including lead compounds and asbestos) are
still regulated as particulates (both PM—to
and particulate matter) under the PSI)
regulations. Lead compounds are exempt
from Federal PSI) by Title Ill, but the
elemental lead portion of lead compounds (as
tested for In 40 CFR part 00, appendix &
Method 12) Is still considered a criteria
pollutant subject to the lead NAAQS and still
regulated under PSI).
3. Toxic Effect of Unregulated Pollutants
Still Considered in BACT Analysis.
Based on th remand decision on June 3,
1986 by the EPA Administrator In North
County Resource Recovery Associotes (P90
Appeal No. 85—2). the Impact on emissions of
other pollutants. including unregulated
pollutants, must be taken Into account in
determining BACT for a regulated pollutant.
When evaluating control technologies and
their associated emissions limits, combustion
practices, and related permit terms and
condItions In a MCI’ proposal, the applIcant
must consider the environmental impacts of
all pollutanis not regulated by ND. Once a
project is subject to BACT due to the
emission of nonexempted pollutants, the
BAC’T analysis should therefore consider all
.pollutants. including Title IU hazardous air
pollutants previously subject to PSI), in
determining which control strategy is best.
PSD Class! Boundary issues
1. P90 Applicability Coverage Changes as
aass I Area Boundaries Change
Sections 162(a) and 164(a) of the amended
Act specify that the boundaries of areas
designated as Class I must now conform to
all boundary changes at such parks and
wilderness areas made since August?. 1977
and any changes that may occur in the future.
The EPA does not believe that Congress
intended to create the turmoil which would
occur if this redesignation required the
modification of permits issued between
August 7.1977 and November15. 1990, or the
resubmission and reevaluation of complete
permit applications submitted prior to
enactment of the 1990 Amendmenti. Thus, for
this reason, applications considered complete
prior to November15. 1990 should be
processed as submitted without regard to the
new Class 1 area boundaries. Exceptions to
this general policy are in-the area of
increment consumption and alt quality
related values (including visibility), as
discussed below.
For an applicant who submitted a complete
PSI) application prior to November15. 1990. if
all other PSI) requirements are met, a permit
may be Issued based on the Class I analysis
as submitted in the application, unless the
reviewing authority finds, on a case-by.case
basis, that additional analysis is needed from
the applicant to address suspected adverse
impacts or increment consumption problems
due to the expanded boundaries of the Class
I areas. Any existing Increment violations in
the new boundaries of Class I areas must be
remedied through a SIP revisIon pursuant to
40 CFR 51.166(a)(3). -
The PSD applications not considered
complete before November15. 1990 must
consider the impact of both existing sources
and the new or modified source on the Class I
areas as defined by the 1990 Amendments.
Thus, the complete application must consider
the impacts on the entire Class I area based
upon the boundaries in existence of the date
of submittal of a complete applicatiorn as
before, ifs Class I boundary changes before
the permit is Issued, the reviewing authority
- mayfind, on a case-by-case basis, that
additional analysis is needed from the
applicant to address suspected adverse
impacts or Increment consumption problems
due to expanded Class I Ftreà boundaries.
NSR Nonottainment issues
1. NSR Construction Permit Requirements in
Nonattainment Areas
In many States, the existing appro’ ed Part
D permit program by its terms covers all
designated nonattainment areas in the State.
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Federal Register / Vol. 57, No. 82 / Tuesday. April 28. 1992 / Proposed Rules
18076
so a Part I) permit program w1 1 automatically
apply to the new and expanded
nona tainment areas which are established
under provisions of Title I of the 1990
Amendments. Thus, until new rules are
adopted for these new or expanded
nonatlainment areas, States should apply the
requirements of their existing approved Part
D permit program. However, in other States.
a Part D program may be limited to specified
areas and does not apply to new or expanded
areas. In these cas’s. Statis must implement
a transitional permftting program until, their
existing Part D programs are revised to meet
the requirements of the 1990 Amendmenti
and expanded to cover all nonattainment
areas in the Slate. Otherwise, both the goals
of part D and Congress’ intent in creating
new or ecpanded nonattainment areas will
be frustrated.
Tne EPA reguletion&already provide for
these new or expanded designated
nonattainment areas because the Emission
Offset Interpretations Ruling (40 CFR part 51.
appendix S) governs permits to construct
between the date of designation and the date
an appro%ed Part D plan is made applicable
to the new nonattainment area (see 40 CFR
52.24(k)). Until a Slate’s new Part 0 plan is
approved by EPA. if a State wishes to issue a
permit for a mapor stationary source or major
modification in a new or expanded
designated nonaltainmeni area, the Slate
should comply with the requirements of
appendix S. Among oI fr.thinga. appendix S
requires a major source seeking to locate In a
nonattauunenl area to (1) meet the lowest
achievable emission rate for such source, (2)
provide offsets from existing sources In the
area, and (3) show that the offsets will
provide a positive net air quality benefit (sea
40 CFR part 51. appendix S. section £V.A).
The EPA believes that in order to carry out
the intent of appendix’S, offsets should be
required for sources in all categories and In
all instances should be calculated an a tons
per year basis (see 40 CFR part 51, appendIx
8. section IV.CJ.
Of course, neither appendix S nor the
existing NSR rules incorporate the NSR
changes mandated by Title I of the 1990
Amendments such as lower sowna
applicability thresholds. increased emissions
offset ratio., new definitions of major
stationary source, and (for ozone
nonattauiment areas) requirements for
nitrogen oxide. (NOx) control and NOn
emissions offsets. However, the 1990
A, andment . require States to submit to EPA
n w NSR permit program rules for ozone
nonattainment areas by November15. 1990
for PM—b nonat4pinntent areas by June 30,
1992 and for moál carbon moaotdds (CO)
nonattainment areas no later than 3 yeara
from the date of the nonattainment
designation. The EPA Interprets this as an
expression of congresaioeal intent not to
mandate that States adhere to the more
stringent Title I NSR requirements in
nonattainment areas during the time provided
for State Implementation plan (S1P
development Thus, for NSR permitting
purposes in nonattaininent areas, the new
NSR requirements in Title £ are not in effect
until the States, as required by the Act. adopt
NSR permit program rules to implement the
Title I provisions. In addition. EPA
encourages any State having adequate
authority for early implementation of the NSR
changes to do so as soon as possible.
if States fail to submit to EPA the new NSR
permit program rules for nonattainment areas
by the deadlines in the amended Act. EPA
intends to impose In these nonattainment
areas a Federal implementation plan (FTP)
embodying such requirements. Currently.
EPA Intends to propose revised NSR
regulations at 40 CFR part 52 that would
implement ‘the new Title I NSR requirements
under a FIP in a State if that State’s revised
NSR rules to Implement Title I are not
‘submitted in approvabte form to EPA and
made effective within the State by the
deadlines established by the 1990
Amendments.
The area designation in effect on the date
of pennht issuance by the reviewing agency
determines which regulations (Part C or Part
I)) apply to that permit In other words, the
PSD permit regulations apply to pollutants for
which the area Is designated as attainment or
unclassifiable, and the NSR nonattainment
permit regulations apply to pollutants for
which the area Is designated nonattainment
(see 40 CFR 51.166(i) (3) and (5) and 40 CFR
52.21(I) (3) and (5fl. Under these regulation a
PSD permit for a pollutant cannot be issued
man area that is designated nonattainment
for that pollutant For the situation where a
source receives a PSO or other permit prior to
the dale the area is designated as
non ltaiñment. the permit remains in effect
as long as the source commences
construction within 18 months after the date
of nonattainment designation of the ares.
does not discontinue construction for mate
than 18 months, and oompletes construction
within a reasonable time (see 40 CFR 52,24(g)
and (k)). Although the PSD regulations
provide for extension of these deadlines. no
extension would be appropriate where the
area has been designated as nonattainmeni
following permit issuance. Accordingly, if any
of these construction provisions axe not met.
the P90 permit c c other permit will not be
extended, and the source (if subject to the
nonattalement provision.) must obtain a
nonattainment permit prior to commencing
(or continuing) construction.
The 1990 Amendments create some new
and expanded nonattainment areas by
operation of law. Other nonattainment area
changes are expected as the State, and EPA
complete the designation process prescribed
in amended section lor(d). Because of these
provisions, the dates aieaa switch from
attainment to nonattainment for NSR
purposes vary by pollutant. Howeve , except
for the two Instances where the Amendments
create change. by operation of law, the new
designations and expanded boundaries will
not be effective for NSR purposes until EPA
promulgates the changes. The promulgations
will be announced hi the Federal R.giatur.
Congress created new PM-b
nonattainment areas through designations
that bc’ ..sme effective upon enactment of the
1990 Amendments on November15. 1990 (see
section 1W(d)(4)IB)). Specifically. Congress
designated Group I areas and areas where -
violations of the Th4-10 NAAQS bad
occurred prior to January 1.1989 as
nonattainment. The EPA published a list vi
these PM—b areas in a Federal Register
notice (see 55 FR 45799. October 31. 1990; e -’e
also 52 FR 29383. August 7. 1987). The EPA
plans to publish a notice In the Federal
Register listing these areas as nonattauiment
in the near future, but they are already
considered nonattainment areas as of
November 15.1990.
Similarly, the 1990 Am ntlm its’expand b i
operation of laW some CO and ozone
nonattainment areas. However, these
changes did not become effective with
passage but rather on December30; 1990. The
specifics are as fotlow&
Section 107(d)(4NA)(iv) of the amended
Act provides that. ,wlth the exception
explained below ozone and CO
noniittalnmenl areas ‘ocated within
metropolitan statistical areas (MSA) and
con olidated metropolitan statistical areas
(CMSA) which are classified as serious,
severe, or extreme for ozone ores serious
for CO are automatically expanded to
indude the entire MSA or CMSA. This
expansion became effective by operation of
law 45 days after enactment unless the
Governor submitted a notice by this
deadline of the State’s intent to seek a
modification of the expanded boundaries
pursuant to the procedures set forth in
section 107(dX4)(AXv). So If a State did not
provide this notice, the nonattalnment
boimdaries of all serious. severe, and
extreme ozone nonattainment areas in the
State and all serious CO areas in the State
expended to inclUde the entire MSA or,
CMSA an December30; 1990. U a State did
provide timely notice, the Administrator
has up to 14 mouths from enactment to
resolve the State’s challenge. Until EPA
promulgate, a resolution of the Stats’s
challenge, the old boundaries remain in
effect.
Except for these two cases where new or
expanded boundaries have been created by
operation of law. nonaitainmeat area
change. will not be consIdered effective untIl
the changes are pzn’ ulg’ted by the EPA. As
to most new areas or expansions of
previously.desIgnate d nonattaininent areas.
this will occur 240 days after enactment (see
section 1W (d)(4)(A) (I) and (ii )). Newly”
created ozone and CO nonati jnnipnt areas
will be considered part of a designated
nonattainment area for NSR purpose, at the
time of promulgation.
2. Slatud of Construction Bans
Pursuant to section t10(nfl3). an existing
construction ben that was imposed due to the
absence of a o.Gd Part 0 NSR rules
remains In effect iaitil a revised NSR SIP Is
approved. Existing construction ban.
imposed due to disapproval of primary sulfur
dioxide NAAQS attainment plans also
remain hi effect. A Federal Register notice
will be published soon announcing the status
of construction bans in general and also
lifting specific bans where appropriate.
Should a construction ban be lifted hi any
area designated as nonettainment, and the
area lack. an Dwrui d Part 0 NSR rule, the
State should meet the requirements of 40 Q
part 52. appendix S. in issuing permits to
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Federal Register / Vol. 57, No. 82 I Tuesday, April 28, 1992 I Proposed Rules
18077
major ne’w sources or major modifications
prior to the adoption of NSR rules meeting
hthe requirements of the 1990 Amendments.
3. Federal Implementation Plans Remain in
Effect
The NSR permitting program in an existing
FtP remains In effect until a SIP is approved
or a revised FIP Is adopted.
4. Use of Previously-Appruved Growth
Allowances is Prohibited
Section 173(b) Invalidates growth
allowances In existing SIP’s in areas that
received a SIP call prior to enactment of the
1990 Amendments, or that receive one
thereafter. For NSR permits issued on or after
November 15.1990. previously-approved
growth allowances cannot be used in these
areas. Construction permits cannot be issued
in SIP-call areas under existing EPA :
approved Part D programs to the extent that
such permits rely on previously-approved
growth allowances. Case-by-case emission
offsets must be obtained for any such
permits, and other existing Part D
requirements must be met.
5. Existing NSR Permitting Rules Continue To
Apply in the Northeast Ozone Transport
Region (NOTR)
The 1990 Amendments establish a single
ozone transport region comprised of the
States of Connecticut. Delaware, Maine.
Maryland. Massachuse1 New Hampshire.
New Jersey, New York. Pennsylvania. Rhode
lsland, Vermont. and the CMSA that includes
he District of Columbia and part of the State
)bf Virginia. For this transport region.
including all attainment areas within its
boundailes, new section 184(b)(2) specifies
that any stationary source that emits or has
the potential to emit at least 50 tons per year
of VOC’s shall be considered a major
stationary source and subject to the
requirements which would be applicable to
major stationary sources if the area were
classified as a moderate ozone
nonattainment area. For NSR purposes, the
requirements of section 184(b)(2) are not in
effect In a State until the State submits a new
or revised SIP that Includes the requirements
(or EPA Imposes a FIP implementing those
requirements). A State In the NOTR has until
November15. 1992 to aubmit to EPA the new
or revised NSR rules addressing the new
requirements.
Appendix E
I. Introduction
The EPA is issuing this CTG document
under section 182(b) of the Clean Air Act. as
amended. Under section 182(b). States must
develop RACT rules for sources “covered by
a CTG document issued by the Administrator
between November 15, 1990 and the date of
attainment.” The State must submit these
RACT rules “within the period set forth by
the Administrator In issuing the relevant CTC
document.” One type of”CTG document” Is a
CTG: a CTG is a technical document that sets
forth a presumptive level of RACT controls
for a source category. The Act provides that
EPA must issue eleven CrC’s by November
15,1993. In addition, the Act specifically
requires the Agency to prepare CTG’s for
aerospace coatings and ship building and
repair within the same timeframe.
This document Is not a technical CTC. but
rather a second type of CTG document—a
document that lists the eleven CTG’s EPA
anticipates publishing In accordance with
section 183(a) and establishes time tables for
submittal of RACT rules for sources that are
not ultimately covered by a CTG issued by
November15. 1993. The EPA believes that it
Is necessary to issue this document at this
time so that States will be able to determine
which sources and source categories fit
within the RACE rule submittal requirement
for sources that EPA expects to be covered ‘ -
by a post-enactment CTG.
II. List of meren C7V s
- The EPA plans tâ issue the following CrC ’s
In accordance with section 183( 8).
• 1. SynthetIc organic chemical
manufacturing Industry (SOCM1) distillation:
3. SOCMI reactors;
3. Wood fumlture
4. PlastIc parts coating (business machines):
5. Plastic parts coating (other);
6. Offset lithography;
7. IndustrIal wastewatec
8. Autobody refmishing
9. SO MI batch prOcessing
10. Volatile organic liquid storage tanks:
and
11. Clean up solvents.
Ill. Authority
Under section 182(b)(2),’States must adopt
RACT rules for three general groups of
sources: (A) Those covered by a post-
enactment CTC document: (b) those covered
by a pre-enactment CTG (c) “all other major
stationary sources of VOC’s.” Section
182(b)(2) also establishes the timing for State
submittal and source Implementation of
RACT rules for these three groups. For
sources covered by a post-enactment CTG
document, the State must submit RACT rules
within the period established in the relevant
CTC document. For the other two groups, the
Act provides specific dates for submittal.
November 15. 1992, and implementation, no
later than May 31,1995.
Alone; subparagrsphs (A), (B) and (C) seem
to set forth three distinct groups of sources.
However, the submittal dates under the
second portion of the provision potentially
could blur the line between these three
groups If EPA does not Issue before
November 15,1992, a CTC document
covering all sources for which it plans to
issue a CTC under section 183(a). At that
time, States would need to submit RACT
rules for all other major stationary sources—
those for which neither a pie-enactment crc’
nor a post-enactment CrC document had
been issued.
The EPA’s obligation to Issue the eleven
CrC’s does not ripen until November 15.
1993. and EPA does not anticipate issuing all
of these CTG’s before November15, 1993.
Therefore, to the extent EPA does not issue a
CT document before November IS, 1992,
States would be required to submit non-Cit
RACT rules for sources that could in the
future be covered by a C1’G. In addition, at
the time the CTC ocument was Issued, the
State could then be required to submit a new
rule, consistent with the CTG document.
thereby duplicating Its earlier effort.
In order to relieve the States from being
required to duplicate rules and to relieve
sources from potentially beJng subject to two
different requirements within a short period,
EPA is issuing thIs CTG document to set in
the sharp distinction between the three ‘
different groups In subparagrapbs (A), (B),
and (C).1f a State believes that one of the
eleven CTG’s listed In Section U will cover a
particular major source, the State should
follow the timing provisions of Section IV.
below for submittal of a rule applicable to
that source. The State should identify those
sources in its November15, 1992 RACT
submittal.
IV. Time Table
The EPA Is establishing the follo 4ng
general time table for States to submit RAC1’
rules for sources that It Identifies In a
November15, 1992 submittal as being a
source covered by a post-enactment CTG
document.
(1) on November15, 1992, the State must
submit a list of major stationary sources that
it anticipates will be subject to one of the
CrC’s listed in Section II. which EPA plans to
issue by November 15,1093.
(2) For those major sources on the list
submitted by the State In the 1992 submittal
that are not covered by a C G that EPA has
issued by November15, 1993. the State must
submit a RACT rule by November 15.1994
that requires implementation of RAC’F by
May 15.1995.
(3) For sources covered by a C G issued
under section 183(a) and for which the State
has not. by the date of such issuance,
adopted an approvabie RACF rule, the State
must submit a RACT rule in accordance with
the lime schedule set forth in the relevant
cit.
(4) For sources subject toe RACT rule that
the Slate adopted and EPA approved under
section 182(b)(2) prior to EPA’s issuance of an
applicable CTG. EPA will work with the
State to determine whether the existing nile
should be revised once a CTC has been
issued that would apply to that source.
IFR Dcc. 92-0886 Filed 4-27--03. 8:45 am)
BILUNG cOOS &s€o-so- -
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04i23/93 15:42 919 541 0804
PLEASE DISTRIBUTE TO ADDR.
Buddy Souza-, Region I
Paul Truchan, Region II
Hal Prankford Region III
Dick Schutt, Region IV
Randy Cano/Fay Bright, Region V.
Torn Diggs, Region VI
Carol LeValley, Region VII
Lee Hanley, RegionVill
Julie Rose, Region IX
Laurie Kral, Region X
SUBJECT; Interim Regulatory Flexibility Act Language for SIPS
- Attached is the interim regulatory flexibility boilerplate
language for incorporation in SIP proposals nd direct final rules
(including- redesignations). Please- disregard the boilerplate
language included in. my notes of July 20 and 22 on this -subject.
OGC, OPPE, and OAQPS are working on a memorandum addressing the
Regulatory Flexibility Act requirements; I anticipate that it will
be finalized in the next couple of weeks.. -
If you have any questions on this language, please contact Jan
Tierney of 0CC at (202) 260—7709- or me at (919) 541—5550.,
Denise Gerth
Regional Operations Branch
1 J 001’ 004
— ____.. —
August 25, 1992
cc: Jãn Tierney
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3’ 3’9.3i 5 : 42 ‘ 919341 0804 AQMD 0CC
OI Z 1t
Language for all packages
[ This paragrpah should be used as the first paragraph in all.
SIPs. Based on the particular action being taken, one of the
additional p .ragrpahc below ehou].d be added.)
Under the Regulatory F].exibilicy Act, 5 U.S.C. 600 et.
seq., EPA must prepare a regulatory flexibility analysis
asBessing the impact of any proposed or final rule on small
entities. 5 U.S.C. §5 603 and 604. Alternatively, EPA may
certify that the rule will not have a significant impact on a
substantial number of small entities. Small entities include
small businesses, small not-for-profit enterprises, and
government entities with jurisdiction over populations of less
than 50,000.
SIP ACTIONS
1. For SIP approval, add:
SIP approvals under section 110 and subchapter I, Part D of
the CAA do not create any new requirements, but simply approve
requirements that the State is already imposing. Therefore,
because the federal SIP-approval does not impose any new
requirements, I certify that it does not have a significant
impact on any small entities affected. Moreover, due to the
nature of the federal-state relationship under the CAA,
preparation of a regulatory flexibility analysis would constitute
federal inquiry into the economic reasonableness or state action.
The CAA forbids EPA to base its actions concerning SIPS CU such
grounds. Union Electric Co. V. U.S. _ E.P.A. , 27 U.S. 246, 256-66
(S.Ct. 1976); 42 U.S.C. 5 7410(a) (2).
2. For source-specific disapproval of a source that is not
a small entity, add:
This action affects only one source, (name of company) -
- tna of company) is not a small entity. Therefore, EPA
- - certifies that this disapproval action does not have a
significant impact on a subscancial number of small. entities.
3. For source-specific disapproval of small entity (or
source that may be a small entity;, add:
This disapproval affects only one source, [ name of company].
Therefore it does not have a significant impact on a substantial
number of small entities. Furthetmore, as explained in this
notice, the request does not meet the requirements of the CAPt and
EPA cannot approve the request. Therefore, EPA has no option but
to disapprove the submittal.
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15:42 919 541 0804 AQMD
GC t 00 3 /OQ 4
4. For general SIP disapproval, add:
(NOTE: If the disapproval causes new federal requirements to
kick into place, this language will not be appropriate. In such a
case, you will need to do a regulatory flexibility analysis of
the federal requirements or certify that they will, not have a
significant impact on a substantial number of small entities. If
you have questions, please contact Denise Gerth at 919-541-5550
or Jan Tierney at 202-260-7709.]
EPA’s disapproval of the State request under section 110 and
subchapter I, Part D of the CAA does not affeèt any existing
requirements applicable to small entities. Any pre-existing
federal requirements remain in place after this disapproval.
Federal disapproval of the state submittal does not affect its
state-enforceability. Moreover, EPA’S disapproval of the
submittal does not impose any new federal requirements.
Therefore, EPA certifies that this disapproval action does riot.
have a significant impact on a. substantial number of small
.entities because it does not remove existing requirements nor•
does it impose any new federal requirements.
5. For limited approval and partial approval:
(If the package takes both the approval and disapproval actions
under these options -- i.e., limited approval/limited disapproval
and partial approval/partial disapproval, use the language for
both approvals and disapprovals. If onl taking the limited
approval or limited disapproval. portion of the action, use Fhe
appropriate approval or disapproval language. For limited
approval, also add section 301 to first sentence of approval
language - - “SIP approvals under sections 110 and 301, and
su cha ,p ter I, Part D of the CA do not create any new
riquir rnents, but simply approve requirements that the State is
already imposing.”]
6. For conditional approvals, add:
Conditional approvals of SIP submittals under section 110
and subchapter I. Part D of the CAA do not create any new
recluirernent9, but simply approve requirements that the State is
already imposing. (Continue with remainder of approval
language.]
If the conditional approval is converted to a disapproval
under section 110(k), based on the State’s failure to meet the
commitment, it will not affect any existing state requirements
applicable to small entities. Federal disapproval of the state
submittal does not affect its state-enforceability. Moreover,
EPA’s disapproval of the submittal does not impose a new federal
requirement. Therefore, EPA certifies that this disapproval
action does not have a significant impact on a substantial number
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4’?3’qj 13:13 9i9 541 0804 AQMD
0CC OO4/OO4
of small entities becatise it does not remove existing state
requirements nor doss it substitute a new federal requirement.
REDESIGNATION - - State-submitted .requeats
1. Pdr redesignation approval to attainment, add:
Redesigiiation of an area to attainment under section
-107(d) (3) (5) of the CM does not impose any new requirements on
small entities. Redeslgnation ie an action that affects the
status of a geographical area and doe not impose any regulatory
requirements on sources. I certify (for Table 2 and 3
redesignations, use:- “The Administrator certifies. - . “J that the
approval of the redesignation request will not affect a
substantial number of small entities.
2. For redesignacion torionactainmenc, add:
Redesignation of an area to nonattainment under section
• 107(d) (3) (5) of the CM 4oes not impose any new requirements on
small entities. Redesignation is an action that affects the
status of a geographical. ar,ea and does not .i ose any regulatory
• requirements on sources. To the extent that The ar a must adopt
new regulations, based on its nonattainment status. EPA will
• review -the effect ‘of those -actions on small entities at-the time
the state submits those regulations. I certify (for Table 2 and
3 re. esignations, use: “The Administrator certifies. ..“] that the
approval of the redesignation request will not affect a,
ub6tantial number of small eniities.
3. For redesignation disapproval, add: -
EPA’s denial of the State’s redasignation request under -
section 107(d) (3) (5) does not affect any existtng requirements
applicable to small entities nor does it impose new requirements.
The,. area retains its. current designation status and will continue
to bi subject to the same statutory requirements. To the extent
that the area must adopt regulations, based on its nonattainn ent
status, EPA will review the effect of those actions on small
erztities at the time the state submits those regulations.
Therefore, I certify (for Table 2 and 3 redesignatiens, use: “The
-Administrator certifies...”] that denial of the redesignation
request will not affect a substantial number of small entities.
(Note that if a. State submits a redesignation request from -
attainment to nonattainment, .it is highly unlikely that EPA would
disapprove such a request. If EPA ever did take such an action,
the language in (3) would be appropriate, substituting the word
“attainment” for- ‘uonattainxttent.”I - -
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çEO SEq 1 .
PRO1
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OCT 2— 1995
OFFICE OF
GENERAL COUNSEL
MEMORANDUM
TO: Mike Kenyon (Region 1)
David Stone (Region 2)
Judy Katz (Region 3)
Alan Dion (Region 4)
Louise Gross (Region 5)
Lucinda Watson (Region 6)
Bob Patrick (Region 7)
Jonah Staller (Region 8)
Ann Lyons (Region 9)
Meg Silver (Region 10)
I have enclosed two documents. The first is the Public
Service Company enforcement case from Colorado. The second
document is an older document that should be added to the
notebooks -- NOX Substitution Guidance. This document should be
inserted at O.11A, as noted on the cover page. I’ll be out of
the office until October 22. If you have any questions in the
interim, pleas call Kevin McLean at (703) 235—5356.
SUBJECT:
FROM:
Documents to Add to Notebooks and D.C.
Circuit Sanctions Rule Decision
Jan Tierney, Attorney
Air and Radiation Divi 1 n
Prirded on Recycled Paper
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‘7LL—2?—1995 10:30 FROM U. . J-’H 11 Ut L
- .—.
_
IN ThE UNITED S ATE5 DLsLRICF c çr
FOR THE D1STR1Cr OF LOLADO
S. . — •,
;
Civil A iou No. 93-B4749
SU KRA QJJB ,
p .
E NDPOWd D dPAQ
-
MEMORANDUM OPINION AND ORDER
Rab L
P zr nt to § 7604 of the C’ean Afr A 42 U.S.C § 7401 at. seq., plaimiff Siena
th biin a & u sait far dv ii penal and ijju relief g th ’ dcfcridan Public
Service Conipai of Colorado (?SC), Sak River A zkuzaIIuavw ewezjz and
Power Dis ict (Salt River), and Pacificorp (collectively defendanti). The defenda are
wncr operators of Hayden S don’wLib a f il fucI4k d im genera ng fwiIi y
locat nc& Hayden, Colorado. Federal ç.e Gon juz dki o abo aa th a on.
addz ses v olad under the Colorado sta impIeinen an plan (SIP), the federaily
delepted air poThJ*ion no a appu ved by the US. Eavfronxneut 1 Pzo ctioo Ag cy
(EPA) pui nt to 42 USCI 7410. Sierra Qnb b cowplied with the notice of int tO
sue provisions of 42 USC § 7604(bX1XA)
T1 Sierra Club ov f partial summary judgment of liability on each of the fa
CPT M 99 7..99)
FAX TRANSMITTAL [ ,4 xr. ] 1
i-i€ e j$fi f
D .p JAqency — 1 ?.27Y- 2 $ J
F i4..i - ‘w ‘ I g- ..z
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Cub brings a ti en suf I for awl! pe a1u anti ____ - -
Seivice Company af Cobrado (PSC), Salt River Pmje Agricultural Luip veruent a d
Power Di u ct (Salt River), aud Pac xp (colleeiively defendants). The defendants ax
ownersIopera2oca of Hayden Sia on winch is a fo i fuel-fl ied P am gencraing facility
løcated near Hayden, Colorado. Federal question juthdktion a o exhrs this a ion
ad kP cPc violadi mder the Colorado m ñ ementatian plau (SIP), the federally
delepted air poflution pi’o&am appwwed by the U.S. Env onmenta1 Prixection Agency
(EPA) pursu t to 42 U.SC* 7410. S n Club b cvw lied with the i tice of intent to
sue pwvisioi of 42 U.S.C * 7604(bX1XA).
T Sierra Qub moves for partisi sum zy judgment of liability on each of t1 fo
1 -
FAX TRANSMITTAL I.c,pIQeu
- ,
-.. .‘ i
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142 mt assene4 g i 4 n t the d fr,i 1anU. Cbbnt one and two of the wuqikflt allege thu
defendants violated the O an Air Act in iof 19,000 tm s hi the p t five y s by
enüttivg olliil4Ufl$ ( rain the Hayden S?2tk,n La the 20% O r i set foah
‘intbe Co rzdo regulations and in frii 1nntt’ pc dL In M paIt of its motion Si a Cub
reh on data and xepdrts fic.n Hayden Siatioa itinuous ein opacity
(C Ms) to iolatiomn. Cu fo aUeg t t defcndan wffl_f*
operated the Hayden Station for over two wcc s in November and D &berof 1 2.
without * fimctioeing e ecwos c &q&aU . Saixa Cub alleges z 1 in fo th t s
opera on of Hayden Station wtea one.ha of 1 e o pezcipitatorwa dfmmcdceal
c scd ive distharge of poU ants and cowtimfcd a ifi a1 oo of the Hayden
Station without the c ju te p w Z&fk the Colorado D p Lb jcut of He lth(Q)H).
Based on the ac eo u( ’ing c 1 one, twOs 3nd ur, th Sl ua Cub aIIe in . .1
three that defendants’ o sLeiit vinlatfon of the 20% opdty tzndazd ustitutcs a fafinte
to operate Hayden Station in a n anner c*n Lste & with good r i llution 4 atro1 pia ces
which violates C ado Regulation 5. 5 CCR. 1001-S Part A, and CP.R, * 60.11(d).
Defendants move foT judwnent on the frst two c They C W ’ tha i
and repons oblaixied fttmiCEMs aiu tbe used to establish em c s vio ous under
the SIP. Thus, in tith s aiy Judvnent c tesI , the piivtsl e is wh i , if.
evidentiaty value y be attad cd to the ( A data and re rts in a i ’ ’ ii suit d t
§76O4oftheCAA.
2
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I -
The following acts axe not genuinely disputed. Hayden St tLoii is a fc l fuel-&ed
steam enezating facility located neal Hayden, Colorado. Hayden Station is Gui itutty owned
b PSC, Salt River, aM Padfii rp. Iectricky is generated at the ciIity by burning aal to
cr te steam . The eam pa s through a ttiLb which in torn drives a generator to
produce elec icity. lfayden Stzliou has two iw15 , Units 1 and 2, which ner e electricity
s
PSC became the opaator and partial owner of Hayden Station on Apr11 15, 1992,
having purvbased Its iute 1 L in tbe Hayden Sta1 tlkwgh Colorado Ute EIec in
Association, Inc.’s (Colorado The) bankruptcy pwoec4iu B e purcbasthg s interest in
the Hayden Station, PSC’s avironmental Manager Mr. Pete Co1i1mi i. zeiquested an audit
of C4o the’s holdings. Thinti !s Edef, F ’ - B 1 B 1 on the i”41t Colalmia sent
m nocandums to PSC siaff identifying probfen with tl Hayden Station a pollution
C ut uI equipment PSC also l d an air pcflutlon cout& I fr i&bI1ity study p rf i’med by
•United Engineers and Constructors for. Colorado Ute and Salt Ri . The study
reumimended t instaliation of baghouses at hayden Station as the best method to reduce
stack emissions and visible ihunc. PWniifs Brief, Fab. G.
Both units of the Hayden Station arc subject to Coloàdo’s an’ quality ztuol
regulatloes. The regulations provide that no owner or operator cC either a _-. or m s1 ng
sour will p à L emissions of airy pollutant in en of 20% cp city. S C.C& 1( 1-3,
1(A), 11(A). Pursuant to the Sfl’, s lble emhsic axe me 4 by CD I I - fng
Method 9. 5 CCR L(X)1-3, Section ILA.L, 40 CF-R.. Part 60, Appendis A 1 Method 9, p.667.
3.
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Method 9 is a visiml ob ar on of the pI cc it ck by a qn Iff ed ob c . 40 C.ER.
Part 60 Append A, Method 9, p 66& The Ob v Wu t be ed by the Q)K Id.
Cerrifi tJon is valid or six nianths. Id. at 669. When observing tl plwnc, the cbsc ver
t ndS at a distance nffident to provide a Liar view of the eimc4 ous with tbe s oriented
in the 140 degree s ar to s back Id. at 66L To the ‘ ‘1 ut pos blc the observer simuid
be perpeixSj ular to the phnnue dii tion - .Id. at 668 Be d thi zeqirn nta, t I
probable that the O i’vcr uu& .t Ord wiIy have to the pa scs to conduct the
Method 9 obs v ou.
Pursuant to the Q lorado r axiou Hayd S it re i cd to have a,
‘a I ti dous emission monitoring system for the r caEur’ inent of opacity.” 5 C.C.R. 1001-3,
§ VLB.L The systc t I1 be installed, calibrated, fl A .!d op ated by the cwn
•..? Id. The monitoring system “ ‘ ‘ ‘ have such equipment installixi in a location wliith
in accord with sound eaginccrrng practice wiil provide far a u dxe opacity..
readings . S QCR. 1001-3, 1V A. The owner or op t r is ru ufred to cah bzatc the sp ew
at least once a day. Id . at § IV .F. Hayden S tian h mt i d the opacity of emissiot
lLoin Units 1 and 2 by me Of utiwaus cuth oi o ciry w n i talicd in each
unit’s exha t stack ,ince Aeguct of 1988. The (s ana the opacity of enussions froni
each unit by pAssing a beam of light from one side of the tack a oss the e aust path to
a reflector which retints the light to the op’ 4ty se . The opacity s ’ mc in the
attenuation of light ( iuu the stack’s em ior . The opacity T ”g reflects the w(5eg to
which IIIIs iOnS reduce the ancmuion of light and ob uft the view of an object in the
4-
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• backgtound.. 40 CF..R. § 60.2.
PSC sub quanedy xeparts o tl CD I I wbith document at sk niim e int
the opacity re ”gs f um the (EMs. Tl repor include a oomputer s*iz of all CEM
data, inthiding a listing of e2eh instan c e in which the C ZV1 xefle that opacity emis ion -
&ou either twit exceeded 20% cpeei lw ig the quarter and the opcrat x’s reaso f
LH$s .• A izg 10 these. repocts Hayden S iioti has ed the 20% opacity
limit at least ]9,721 thn In the past five yeah. O la nç P l B-L
Sierra Club’s for failure to oU a pe t pnoc to n t ’t is based o
ti*’ aciants! opeiation of Hayden S tionfortwo weeb in Nav wber and Deccnibcrof L992
without a fully functio 1 eIect ustai c p1ecpIh br ( ES?) . At noon, November 25, L992,
dcfeiidants began the start-up of Unit 2 after it was out of seavicc for 20 da)1 for scheduled
mthntezmnce. P1n , I fPS Brief, 5. Shortly th ftet a short developed in the indn d
fan motor The fai lure of the induced fan inotot resulted in a failure of ono-balf of the ES?.
Dc&ndants operated Unit 2 for nineteen da.)twfthout a fully funetiorthig ES?. During ths
p&iod, defendants filed at least four upset ooiidiiion reports with the CDH
November 30, 1992 - Upset fur November 25th tluough the 27th.
Plaintiff’s Brief, th - 2, Attaclunent 2A
December 4, 1992 - Upset eonditiomior De e abei 2nd through the 3rd. Plaintifi’s
Brief, h . 2, Attachment 2B. .
Deceniber 7, 1992 - Upset conditioni for Dd uLer 4th thrui4l December 5th.
Plahitifs Brief, Exh. 2, Machmcnt 2C
Dec bcr 14, 1992- Upset conditiocs for Deceinbet th through the 13. Thiiit ’s
Brief , h a Att bpient 2D.
An “upset condition” as de ed at S C.CR. lOOli.2, LG, uae a violation of the
5
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crnissiox regulations if it meetc the regulatory t ia of 5 C.CR. 1001-2, TLFJ . The apsc
condition zep ns e flIed tbe day a(t the vp t w c j4’ie W the induced f
w repaired it was min ’4j r rq ’ i and the P as functionaL
(DH has L ued two n c s of violation (NOV) to hayden St2tfr n in the past five
yeaz The first was issued Fcbruaiy . 33, 1 9, opadiy e ” 4ons from Utht 2.
Based on sul equent t th CDH chose not to p any c” t znent wk Hayden
Station xice ved a se nd NOV on September 21, j J3 kr excess o Aty eTnq JO f u
TJtht 2. P nauant to a co nplian order, PSC w A civiLp lty f S3,00Q
- Members of the Sierra aub te de In the Y ui a Vafley where the Hayden Station
is smiated. Star?dhlg is i diip ited .
sjudgment shall cnlcwhere tbaels no w c ue a to y materini fact
and th moving patty is entitled to j idgm n as a u U of law PCCLLQV2. 56(c). If i
vant establithos e itlemeas to judg rnt as-a n uer of law m u o tded,
operative conthined in the doaz taty evide , 1mmAifjflL WN t WiU li Mwas
v. CoM u I’brdby Co., Inc., 971 P24492,494(10th at. 1992). The operative iaquky’
whether, based on all the doctnnems subini’ted , * reasoasbic t of fact could find by a.
preponderance of e,i&i that the p4ainti is entitled so a vetd 4i i v. L ezi y-
Lobby, Pzr , 477 US. 242, 250 (1 Mwas 971 P24 at 494 5m. My judgiuc&ix sho
n enter if, viewing the cv dencc in a light most favorable to the uonmovhmg party and
(hawing all rewm hle inferenc in that party’s favor, a r asor Me jwy craild I Uku a
party. Andasob’s, 477 US. at 252; MaT4 971 F.2d at 494.
6
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If the moving parry will not bc the burden of pnxif at dial, that party’s motion for
sunu1 iy judgment need only demonstrate the absence of aiae ect of the oppOn_ent’s
claim and the burden then sliff to the non-moving p’i&ty to present erent evidence to
bow the JStCnL of a g uu u soe of material fact r iaI resolution. Cdo2ex C i
Ca en, 477 US. 317 3fl (1986). When, however,the soo is one on which the movant will
benr the burden of proof as tini, .uhi I ucntwW lie on if the movant submits
evidentiaxy material to hliSh the d3bll or dd . R A t Th COrP. V. NWtha7tr
Joint Ve,azue , 958 F2d 1313,1322(5th Qr. 1992) art. dea.subb zi xn. , 113 S O %3 (1993).
a
The Sieaa Cub’s indsecozxl eWms allege t tdefrndants have vioblied and ate
n iolaxfon of O lorado’s emission tLQl regulations bICb m e it imlawful for a r owner
or operator of a stuticoaty *Ou C to allOW Or enine the tn -’-on into ihe - of any
poiluiant in of 20% opacity. 5 CCR 1001-3, § LA. To meet its umn]alyjudgweut
burden, Sierra Cub rc&s prbnzrfly on d n ants ’ CEM data and zep rJs as àidenz of
• defr.udants’ continuans violation of the 20% opacity limitation. Defendants azgua tha
iolatiog of the ápscfty standard n ouiy be established ou a Method 9 observation
as provided for in the Coknado SIP. Bei me the Sierm Cub pruff no evfdeucc of
tnthe cdvioladots determined by Method 9, defendants eontád that snirlLrn aryjud 1ent
should amer in their favor on Sierra Cub’s rst t claim .
- The issue, tb , is whether in this dthen s f cnt actiOn the C M da and
reports coi tu&c evidence of emissioxu VjO1at!OL . If they do then no reasonable uler of
I
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fact could fail to onchidc thet Sierra Oub has poved th rit o and two of it u 1ajut..
I UmCLUdC in light of the app icab e stabitozy and xegulaioiy r.1 ’rne vic j commc
s ise fathion that the f data and iepon constitute con peteot cvidenç of ong g
\i ‘
vio1atioi .
The Colorado emi io rcgulado pxuvide that s noke aDd opa ty eim sio far
atationaiy sonrc s wéasmul byEPA Method 9. 5 C .C&. 1001.3, ILA(1). In
support of th* a,ntention thet Method 9 Ia the ‘ioty method that Ca be “ l to i h
a.violadon of the opacity standard, d f d*int cite to en EPAguidance ck c ni it (the
GD) ued April fl , 1986. The (B) stazes that the legal Ifcr m g
eaii cinnsJ mint specify CEMS at th Conzp1lat Method in order for EPA to rely on
cE! ts data alone to iirf a case toth Depw na ofJuv (DflJ), go ___
Th,è iyz hi F v1d g,ia w orto ie a No&e of No Arçwfce (WON’),
5120.” D nkmts Suunmxy Jnd ei* Brief, h L, p .2. (ctnphatiz auppliod).
Defendants gue that be e the legal c i ’ in the Colorado S W Method 9, ly
Method 9 oba ’ations n be usod to establish liability for e moi viok*ms. I diagzee.
The piqose of the O n Air Act, as tu& by Co u , it R pmte and
ii i,ce the çmlity of the Naikin’s air t uu& so as to te the public health and
wd re and the pxudnctiv capacity of l populathu.’ 42 U S.C * 7401. Recog ” the
f paztance of sitting the remedial goal Cf the t n Air Act and the magnitude Cf the
task at baw Congress arwctl ciui 1 ’ ns with en independent ea to rC juiIC couzplIaiw
with the A 42 U.S .C 760& If a state has an appwv d SIP, prnnazy enforcement po r
lies with the impleme state agency. 42 U.S.C. § 7414(b) The EPA .v tsces the stare
8
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-4 III
asenaes. 42 U C * § 7414(bX2). If the state agency Or the EPA s for any reason to:
y out its duties mder the Act, tf, c may bring it directly ag st the alleged violator.
42 US.C. 7G)4. Debate o df g amendments to the Qean Air Act evid ’rre that
it1ztm sithts are an kate part of the Act’s schen,e Sa Co escio,,
Rgconf, Wednerdq Mwrh 2!, l%V), a ir A 4 ma A,w,tt 236 Cong. Rec. SW O1
Co,’ nrd R ord, Thwsday Sepiembø I 198$ PbThth z Lw p i Ri J1 131
Con Rec. $1130502 - r n o n nt ptwisicxs of the Act reflect gr ional
rec guiticm that nelth the federal nor S C iw l ve the to that.
genesai x5 of air pollutants ate consistendy in th. the A Therefore, to
sLipplement gDven]mefltal enf .e 1 ,eut of the Qean Air Act t u. u ii provide interstitial
means for eI1tou A mPnt of environm inal standazdi in furtherance of the remedial pwpose
of the Act.
To aid d en enforcement, a e & to crmatkm nr zy to pzove that an
• is violating the Ad is provided b 414 the Act., That iection states that any rc rd
reports or intoimation required under the Act mt t be made available to the
public unless the information involves bade se & 42 U * .7414(c). Under the
Colorado SIP, owners or operators of fossil t41e1 ge atozs are re uiicd to install, calibrate,
Tnamtaic, and operate CEMs. S C.C1L 10013, IV.G. These owi &s and operabuts m g
submit quarterly reports listing e ss cir nr for sU pollutants n.onitnred for that qualw.
IcL Pursuant to § 7414 this ormatbu must be wade available to the pthlie.
The CEM Mte ncc and reporting requirements alone tupart a high degree of
probauve rchability to the CEM data and reports. See Gamer v. U SM’4 424 US. 648
9
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• (1976); Uith i S r V. W 448 US 242 (I980) MOwi since the Qea A
establishes a i e ct]iab1li , Unit.1 frit v. H 4 Sw 4r, 1n4 575 F. Supp 733,
735 (ThMd. 1983), 4 data and lcpotb ay pzovide m 1 vc evidence of _____
aziipliaztce . 1)iends of the Lank v. POtomac EL rdc Co,. 419 P.Supp. 528, 533
(DD.C 1976). It fellows that if such I Th aie p&oba ie of compliance with the A
are probative of the Ad’s iolation j I • 1I x d&;
Tt e id 1 PSC does ot* 1 1y diipote the rojative rc blUty of Method 9 data a r
c i data havinj stated in an eath compliance proceeding involving ther plant t ’
G v a the kn n ffmt i,i up the a uacy otM d 9, petitioner sq
requ that the COMa f Ms] da be coosider d concI vc evidence and,
• a,zliip)y , the alleged iialation r Unit No.2 be d1 wiw &
FI* 1 iift’s Brief, xb S S abj , 40 CER. 60.11(e).
DefrnJ&4s x dthe regulations re txctively to m’in thetv olatioos of the eim Afr
An n be pro n p by Method 9. Ibwe er, in ita ernicus thief WH states
chtcive reliance on Method. 910 thaw t’i violations ue ns f a ib g dty of
I
appThable languagt nat unreliability of s( data and reposta. Q)H oi e of such ‘
data and iepor to det . ’ .e opaezty violations does not oppose my ywg so.
Dcfen ,n tjve j t 1 of the regulatozy c4i me guta the Int aiilial r edial
fune6ans of the An’ l’i ” suit c ary to the uvi dlng purpose of the Qean
AfrA
Furthermore, a Method 9 observation tbe i i ebyr aa vtdual c GGc4 byibe
state. 40 CF.R. Part 60, Appendia A, Method 9, p. 667, 66& To the observauon
properly, it is probable that the obseiver baveaec to tim premises. Id. State and federal
10
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officials have a right to e te the pzeiniscs to ‘ ‘ riu these obseivatious. 42 U.S
§ 7414(a)(2). Thus, the only way a group can obtain a Meth 9
reading is to hue a t LIa1 o ver wl uId then either enter the ewises illegally or
eqnest pcrmi ion how the alleged violator to utcr the pz mis s M to the nner, I
Cannot find that any a Of Ccngress would en nage or f r illegal activity. The adage
‘fot’ewarned is fotcarnied ” ap 1ies to the Iat .
- An entity which has nod when an obse v ’ i is to ocCarwill be motivated to meet
/ the colnpTh’ n slandard at that time. tifluoos nipliance c ntived C IulthTT
g Urcre. in this regard the United Staics Ge zal A omiting Qffi in it
to the o ; i .Rfl . Subeo ittee on Oversight and Istiptions , Committee on Enex r and
1 Coierce, House of Rcpresentath , t iL d ‘it is faicto asstnne that aiinplianee data being
I teported by States do not in cate what is happeu gat a f di on a dAy-to4ay ba but
rather whether the sonrct has i dCI m 10 be in COmpW2nre at an anuounced
lnspe ion iiftcz ft has had the opportunity, to opttn the perfonusnce of l c ufroI
equipment Thus, it ind1cate whether the so nee is pabte of being in co plianoe r th# r
than whether ft is in tnpllanc in ha day-today operatious.” Pi tM’s Bri4 P i . U, p.
21. -
Further aii p Et forthis r s& ing isfourdm 7414(bXZ). Piiisu&mto f 7414(bXZ)
the EPA can nduct lispe and n u toi fadliuies independent of the at agency. 42
US.C. § 7414(b)(2). The EPA is zeq u&e4 to xvc rc onabla notice to the state agency of
the inspection and the pulpose of the inspe’ on the EPA has reason to behevethat
the slate agency will infonn the p on whose property is to be aff tcd. 42 USC
11
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7414(dXL) Thus, Coi gtcu recognJ” 4 that the p r xs of the Act could only be futh]led
where the flt 1jr investigated w ot f - ed Of the iispectio .
I am cgn ned t ± the owner or operator of the a tionazy ouice has no dEity to
permit the representative of the dth onto ha whc . If. I 8 4 ddendanis’
arg mmnt that only Method 9 rvations may be wed to pzuv v olatious of the Qean Ak
ALt, it follows that the alleged violator is afforded a ge m snre of c nrrol over
enforcement of the Act by iri ’ groups. The alLeged violator either deny to.
the gi zp or ft p quit the Method 9 Inspection at a time when it n et the
emk ion standard. Siith a resole would be uk xy to the An’s kIu C and uadesm inc
Qna1inteUt:..
Sectioii 7604(aX1XA) provides tbát?any person may c’ min c a dvii a * on his
ownbebalf In st anype .. .wbo is alleged to baveviolated (if there is evidenco that
the violation has boea repeated) or to be In violatiOn of (A) an &n. fl standard or -
4
bnittion.’ arandani or miration fndn4&’a schcd* or timeiable of _____
emLc on Ii mtioa, standard of p rfo . ‘ CG or “- ion standard’ * ‘which is in
tinder this chapter . . or tinder an app1i ble implementation plmL” 42 USC 7604(f)(1).
Here, the Sierra Cub seeb to eefozou a N2r I Ambient A ir Quality Standard (NAAQS) 4)0
— ---- -
promulgated pwst nt 7409 4 USC. 7409 and adopted in the Colorado SUP ‘ &
p suant to * 7410. 42 USC 7410. The Sierra Qu.b , f1m. taneously
an - tii ’n ___ _____ nd £ _LI d “appIi ble ? mder an
IM u.pbu.” Ddencisnrs argue that a itk ’ . group should be bound by the
- method f n ent contained the SIP. However, nothug in the Act, i imp1cra utiug ...
12
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thtioi , or the C larado SIP bind citizens to a particular methcxl of pro ngvio1atio
De ndants argue at length that e of CE? f data and report as evidence of opathy
violations constitutes judicial amendment of the applicable t mi cions standazd This is not
so. The 20% opacity standard is still the 20% opacity staudaid. Rather, the fo of my
ana is under the applicable sZatut and regulau,zy I I1Pme here is evideotiary.
hold that th this citizen action und the Q in Air Act violations of the 20% opacity
stindard n y be est hTkhed by CEM records and reports as that d carries wjtl it high
indicia of reliability and pxobaiM value.
, This holding is bolstered bytbe 1990 amendments to the Qean efr Act which a d
a new § 113(e), 42 USC 47413. That sectog ptrMdes that in the amo t
— of any penafty to be assessedunder. - .section7W4(a)oftlüstitle. .,.tbe c t,as
appropriate. . . shall ke bto consideration.. .the Li atiuu of the violation as b1’bed
by any credible evidence (Inddding evidence ot than the applicable test method). ”
The aniendment c1i ’4ffes that u iil nny . W any evidence of viobtion or
con,plimic knic. ible uwfr’-r the Federal Rules of Evidence, and that they are cot
limited to consideration of evidence that is based v lelyon the applicable test method
in the State - atet on or regulation. Eor ev’ui pJ uai may axsi4er
evidence f.iOiu continuous en on xnorIlt ug steii , eapelt testimony, and
bypa ing and control equipment uncrions, even if these are not the app1i ble
test mctho . Thus, the ameniment o rules the ruling In Thzfrd St v. Xá
Srsd Corp., No.. 82.2623-UI ( CD. C l. January 17,1984) to the extent that the court
in that case esciuded the corjsid ’ation of suth evidence.
Senatc Report No. 101-222, December 1989. p. 366, US. Code Cong. Mmin News,
101st Congress—Second Session, p. 3749.
I conclude that defendants’ CEM data and epoi pxv’iile uadis pited evid of
their aonthnoua violation of the 20% opacity liii, ” at the Hayden Station. AL*x fdiugJy , I will
13
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t m,ju Ig eat in vor of Sierra Qub on thefr frst two cI i c fi reli i-
and deny d 4iid nt? mo on as to these daim A iprop ie 4y w be dczermi cd
a
The Sierra Qub alleges t t an i.ipv d . modth zim of the Hayden $taijnn
o rred on November25, 1 2 when d&ridants utiwie4 tO op i1c Uuzt 2 after one -ha lf
of the ES? f ’4t ¶d pord e i the
method of o ia oo of, a s’ ianay i ii wl th i’ -es the mCtiOfl late of any
pollutant for v cb a Federal or sw emission sia szd 1 b a pzumulgated or. wWi
results in the enussion of ny such poflidant previously not. enued. ’ S CC.R. 1001.2, p.19.
A physical h nge does not Inebide m ic ue, and zvplacemeuC’ Id. - -.
It Is vwl pu1ed that when the ES? faIIçd, d !ft i ediat ely ren ov ft aod
seat it for repair: . It took approxin ately nineteen days to ainplete the te air . On the
ES? was returned and wcr lled , Unft 2 was op ating in the me m c as it had b C gc
the faflw’e. The removal, i epalr and replaccoent of the , thez re, did not a i t
a physicaI ch nge as defined by the Mt nor did it ltut a i4I4 , in the method o1
upraron SEe NaI O,W1.SOWhW1 AhØi’kWJn Co. v. UU UZ States Em’fravnaztal
Agency., 838 F.Zd 835,838839(6th . 1988). Ses a of Genavi C otc4 £P.t,
Jomwr 30, 1990, 1990 WL 357113 (E.PA.G.C.). I that defend nfs !
jeration of Hayden Sta on’wbiIc the ES? was dysEui ctiouial was no as a w M1 r of 1aw
a w dificatrn A ut h’ g)y , the Sierra Qub’s motion a zyj vr grr tn on 4 v
isdenied . -
14
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Defendant contend that the Iure of the ES? constitutes an u ct An upcei ’ is
“(am unpredfctable failure of air pollution contot or pm eq t 1*hx Jt in th
violation of .‘qi ’n am o1 regulations and wbi not due to poor 1vrt nre
improper or le operations, or is otherwise p table through the ae of
rca onab1e care.’ !d at p. 33. Emission en resuhing fw u upse rc ed if
the CD I I is notified no later than two hours after the start of the ncat vxkIng day followed
by wruen no on apWning wbat nwd the violation- $ CCR. 1001-2. The SP I part
of the afr polia6 onutol equipment at Hayden Stadon. The Sierra club pioffus no
evidence estabWtlthtg that the failure of the ES? was due to poor maintenance, poor
operating conditions, or was preventable by mc other means. Conflicting evidence is
pr ented ie i g the nber of up reports .nrnde by d tl ntLç whether the reports .
were timely made and whether they w fclIo by wtitteu notification. HOwe,es U a
at1cr of law, defendants are liable for c2fl 4iO c.ceuLI. ug as a result of the ES
failure because the u et defense was not asserted to flg and two. And, in any
evenç this defense has in no v.*y been asserted as to the c Guuous sod ongoing opacity
limit violations tablished by Sierra Qub outside the two week period of the alleged u et
C
The Sietra club’s final t1 i alleges that defendants have n operated Hayden
Station ía a manner coas&ent th good air pollution co J pxa ic far minrn ifr g
emissions xeq red by 40 C.F.R. * ).11(d). Detenuination of whether a eptab1e
opcrathzg and n* YI T Ce procedures are being used will be based on inforniation available
to the Adxthnisrraror which may iz Zude, but is not limited to, moninot ng results, opacity
15
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obse va ioI zeview, of OpC [ an 1r fl FO dorC$ ath inspection of the
SOW 1d
Defrudants contend that there &e dispnted factual i ues i gardingthefr d ir i not
to install new pollution conwol tecbnology at H *n Station which p ev the ciuzy of
siatyjud ment. The why of it y be in ques*icm but the need for and feasibility ofthet
new technoloj is not F 1 yd put . Any 4sp te of fact dL g this decision does
not eicmMch the piobaLive ialue of the CEM data and xepocls aver which th e is no
genuine 4 ,ute. . The f data pzuv that de ams have connanonsly jnbit
opacity limitation f 1988 to the date of t kws t . This cv den z is corioboisted by
PSC’s own intenial m mozandu s UC ui ug the need far improved technology at the
Hayden Statzcm. Si a aub!s evidc&e shows oochisivcly that’dcfendants have failed
opexate Hayden Station in a nner.co 4 t with good air poThiti m AauL practices far
- - - - g emission ’. A nL 1 11C!y , I gxaui the Sieua Qub’s motion r imIyju4 eut
j on its third i Wm As with Siezxa Qub’s fizst d se rI rj1 e4 m remedy on the iL 4 l*ftn
will be determined in f’ ther pzocee krtp
liii P bIt) AII
16
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It is therefore ORD ED that
Paztial sLrm1n Iy j jr giv ( f liab±ty hR1I enxer tavor oi piaint ag
defendants on plaintiffs first aWm for relief alleging t t defendams emitted poflvt n in
violation of Colorado air pollution regulaticzs, second etaim for relief alleging defendants
emitted pollutants in violation of permit Iiith tions, and third claim for relief alleging that
defendants have failed to operate Hayden Station 11 ilc it with od a pollution cz t 1 .A
It is further ORDERED that plaintiffs motion for partial summary judgment on its
fourth d m fleging That defendants failed to obtain a pes t prior to operating Hayden
Station without a functinniT e1ec tatic peicpttaxor, which pIaint d2 m is a
modi cataon, s DENIED.
Itis further OBD ED that defendants motion for szmmi y judgment on pla s
first and secoqd cI n for relief is DENIED.
Dated: July , 1995 in Denver, Colorado.
BY THE COURT:
LEWIST. JUDGE
17
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Case No. 93-B4749
IN TRE tJM’IED STATE DL 1- iCr COUEf
R mi, DISTRICT OF COWRADO
4 i
C a ofM*i1m .
A copy of th Memoc mn Opinini a Ozder w mt1 4 d following v
ee4 E .
2020 Gr Aw . S 2i 522
I . WY 82010
1dm E .
203311thSUeet,S 6
B r , CO 80302
Thibert A. F bcs, Sr., Esq.
BIOW E
- & Sti 11 1 3 P.C..
410 17th Su t, FIo
ver, Co 80202
MagiMraic 1i ige 0. EliwliLd S 1I4L! [
-------
W S14
4 t pRo tc
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
OFFICE-OF
GENERAL COUNSEL
MEMORANDUM
SUBJECT:
FROM:
TO: Mike Kenyon (Region 1)
David Stone (Region 2)
Judy Katz (Region 3)
Alan Dion (Region 4)
Louise Gross (Region 5)
Lucinda Watson (Region 6)
Bob Patrick (Region 7)
Jonah Staller (Region 8)
Ann Lyons (Region 9)
Meg Silver (Region 10)
Enclosed, please find a copy of the memo transmitting the
favorable decision (decision is attached) with respect to the
challenge to the “Order Of Sanctions” rule. In addition, I have
enclosed the documents (in the list’below) to be inserted in the
SIP Guidance Notebooks. I have indicated (here and on the
document) the place where it should be inserted. I will continue
to revise the index and will send revised versions every 4—6
months.
(1) SIP Credits for Federal Non-road Engine
Emissions Standards and Certain Other Mobile
Source Programs -- 016
(2) Future Non—road Emission Reduction Credits
for Court-Ordered Non-road Standards -- 017
(3) Exemption Criteria for Highway Sanctions, 60
FR 34315 (June 30, 1995) —— RiO
(4) SIP Improvement -- Workgroup Final Report --
S13
(5) Redelegation of Authority for Delegation 7-10
from the Assistant Administrator to the
Regional Administrators —— S14
Finally, on the last telephone call, we indicated that we
would send a copy of a recent memorandum purporting to extend the
applicability of the May 10, 1995, memorandum (discussing the
reasonable further progress requirements for areas that are
Documents to Add to Notebooks and D.C.
Circuit Sanctions Rule Decision
Jan Tierney, Attorney
Air and Radiation Divi on
Prira,.d on Recycled Paper
-------
attaining the ozone standard) to other pollutants. The
memorandum is not enclosed for two reasons. First Kevin McLean
is on vacation and we cannot locate a copy. Second, and more
important, despite representations to the contrary in the
memorandum, OGC did not agree with the approach articulated.
There are current discussions to retract the memorandum or to
supersede it with an alternative document. If you have any
questions, please call me at (703) 235—5334.
-------
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY -
WASHINGTON, D.C 20460
I( p 1 0 c ’
JUN 2 8 1995
OFFICE OF
GENE RAL COUNSEL
MEMORANDUM
SUBJECT: Court of Appeals Decision in NRDC v. Browner ,
94—1647 -
FROM: Jan M. Tierney, Attorney,
Air and Radiation Division (2344R
THRU: Alan W. Eckert
Associate Gené t 1 Counsel
Air and Radiation Division (2344)
TO: Mary Nichols
Assistant Administrator
for Air and Radiation (6101)
On June 27, 1995, the Court of Appeals for the District of
Columbia Circuit (D.C. Circuit) issued an opinion in the above-
ref erenced case, denying the Natural R sources Defense Council’s
(NRDC) petition for review of EPA’s “Order of Sanctions” rule
(sanctions rule). EPA issued its sanctions rule on August 4,
1994 pursuant to section 179(a) of the Clean Air’Act (CAA). On
September 27, 1994, NRDC filed suit in the D.C. Circuit
challenging one aspect of that final rule.
Under the nonattainment area provisions of the CAA, portions
of a State face mandatory sanctions if, among other things, EPA
finds that the State failed to submit a state implementation plan
(SIP) requirement or determines that a submitted SIP is
incomplete or disapprovable. Section 179(a) sets forth two
mandatory sanctions: (1) an offset sanction that would require
sources subject to the nonattainment new source review
requirements of section 173 of the CAA to offset any emission
increase at a ratio of 2:1 in lieu of any otherwise applicable
offset ratio, and (2) limitations on the receipt of highway
funding. One of the two sanctions would apply 18 months after
the EPA finding or disapproval and the second would apply six
months after imposition of the first sanction. Sanctions would
not be imposed or would be lifted once EPA determines tsuch
deficiency has been corrected.” Section 179(a) also provides
that the order in which the two sanctions would be imposed shall
be “selected by the Administrator.”
In order to select the order in which the two sanctions
would be imposed, EPA issued a proposed rule, proposing that the
Prinrgd on R c)cIeJ Paper
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2
offset sanction apply after 18 months and the highway funding
sanction apply 6 months thereafter. EPA issued the final rule
based on this proposal on August 4, 1994. In addition to
selecting the order of sanctions, the rule also established some
other parameters for the imposition of sanctions. Moreover, the
preamble to the rule set forth EPA’s general policy
interpretation of the mandatory sanctions provision.
EPA provided in the proposed rule that the -phrase “such
deficiency has been corrected” indicated that a sanctions clock
would stop (or sanctions be lifted) if the State took sufficient
action to cure the finding that started the sanctions clock.
Therefore, for a finding of failure to submit or incompleteness,
the sanctions clock would stop if EPA found that State made a
complete submission. For a disapproval, the clock would stop if
the State submitted and EPA approved the relevant su zu ,Lssion.
NRDC submitted comments on this interpretation, claini .ng that
even for findings of failure to submit and incompleteness, the
sanctions clock should not stop until EPA took action approving
the relevant State submission. EPA rejected NRDC’s comment on
the basis that the statute was clear that the clock would stop if
the underlying deficiency were corrected. EPA placed great
emphasis on the fact that the CAA provides the clock for
promulgation of federal implementation plans (FIPs), which starts
based on the same types of findings,would stop only when the
State corrected the deficiency “ and the Administrator approves
the plan. ” Therefore, Congress’ express direction that a FIP
clock that started based on a findingof failure to submit or
incompleteness could be stopped only by an EPA determination that
the deficiency has been corrected and EPA approval militates
against interpreting the “deficiency correction” clause as
encompassing EPA approval.
On September 27, 1994, NRDC filed suit challenging EPA’S
interpretation of when the sanctions clock are turned of f for
findings of failure to submit and incompleteness. NRDC asserted
that the term deficiency referred to a State’s failure to have
submitted an approvable SIP. Therefore, to cure the deficiency,
the State needed to submit an approvable SIP, not merely a
complete SIP. NRDC contended that any other interpretation would
undercut the amended CAA’s intricate scheme for ensuring
attainment of the national ambient air quality standards (NAAQS);
stopping sanctions clocks for complete submissions that are not
necessarily approvable would encourage states to submit complete
but unapprovable SIPs in order to delay implementation of
required measures. The D.C. Circuit rejected NRDC’s argument,
adopting EPA’s argument that the statute is clear on its face.
Although the Court minimized the distinction between the language
in sections 110(c) and 179(a), the Court found that the phrase
“such deficiency” clearly referred back to the four findings
provided in section 179(a) and that there was no textual support
or legislative history to support NRDC’s contrary interpretation
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3
of this language. Furthermore, the Court rejected NRDC’s
argument that such an interpretation would undercut the over-
arching goal of attaining the NAAQS, relying on the numerous
other statutory provisions -— such as discretionary sanctions,
the FIP requirement, and the “bump-up” provisions -- that would
encourage States to timely attain.
A copy of the Court’s opinion is attached for your
information.
cc: Regional Administrators, Regions I-X
Regional Counsels, Regions I-X
John S. Seitz (OAQPS)
Margo T. Oge (OMS)
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Notice: This opinion is subject to formal revision before publication in
the Federal Reporter or U.S.App.D.C. Reports. Users are requested to
notify the Clerk of any formal errors in order that corrections may be made
before the bound volumes go to press.
niteb tate Court of ppeat
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 15, 1995 Decided June 27, 1995
No. 94—1647
NATURAL RESOURCES DEFENSE COUNCIL. INC.
PETITIONER
V.
CAROL M. BROWNER, ADMINISTRATOR,
ENVIRONMENTAL PROTECTION AGENCY,
RESPONDENTS
On Petition for Review of an Order of the
Environmental Protection Agency
Sharon Buccino argued the cause for petitioner. With her
on the briefs was David M. Driesen. David G. Hawkins
entered an appearance.
Ronald M. Spritzer, Attorney, U.S. Department of Justice,
argued the cause for respondents. With him on the brief
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
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were Lois J. Schiffer, Assistant Attorney General, and Jan
M. Tierney, General Counsel, Environmental Protection
Agency.
Before: W iD, ROGERS and TATEL., Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: The 1990 amendments to the Clean
Air Act revised the regulatory framework for achieving na-
tional air quality goals. Among other changes, the amend-
ments altered the schedule of State Implementation Plan.
(“SIP”) submissions and Environmental Protection Agency
(“EPA”) responses thereto, and strengthened the sanctions
that apply in the event of state noncompliance. Under
§ 179(a), 42 U.S.C. § 7509(a) (Supp. V 1993), an EPA finding
of one of four possible SIP defects will trigger mandatory
sanctions unless the state takes corrective action within 18
months. Petitioner Natural Resources Defense Council
(“NRDC”) challenges an EPA final rule that permits a state
to halt the 18—month “sanctions clock,” when it is triggered
by a i EPA finding of incompleteness or nonsubmittal, by
submitting a complete plan, even if that plan is ultimately
unapprovable due to substantive inadequacies. Because the
language of § 179 plainly leads to the approach adopted by
EPA, and NRDC has pointed to no persuasive evidence that
Congress intended otherwise, we deny the petition for review.
- I.
A. Statutory Framework. The Clean Air Act, as amend-
ed in 1970 and 1977,’ establishes a partnership between EPA
- and the states for the attainment and maintenance of national
air quality goals. See 42 U.S.C. § 7401—7515 (1988 & Supp.
V 1993). Under this regime, EPA has set health-based
primary “National Ambient Air Quality Standards”
‘Although the Clean Air Act was enacted in 1963, “it was the
Clean Air Act Amendments of 1970, Pub. L. No. 91—604, 84 Stat.
1676 (1970), that gave the Clean Air Act the basic structure it
retains today.” Coalition for Clean Air v. Southern CaL Edison,
971 F.2d 219, 221 (9th Cir. 1992).
3
(“NAAQS”) for six pollutants. See 40 C.F.R. part 50 (1994).2
The states are responsible in the first instance for meeting
the NAAQS through state-designed plans that provide for
attainment, maintenance, and enforcement of the NAAQS in
each air quality control region. Thus, each state determines
an emission reduction program for its nonattainment areas,
subject to EPA approval, within deadlines imposed by Con-
gress.
In 1990, Congress amended the Act to revise the timing
and content of the SIP requirements and provide new incen-
tives and sanctions to encourage state compliance with Clean
Air Act obligations. See Clean Air Act of Amendments of
1990, Pub. L. No. 101—549, 104 Stat. 2399. The 1990 amend-
rnents extended the Act’s attainment deadlines, but added
short-term deadlines for many intermediate steps, including
SIP submissions. The amendments also created new manda-
tory sanctions for states that fail to comply with SIP submis-
sion and implementation duties.
Section 110 of the Clean Air Act, 42 U.S.C. § 7410, sets
forth the basic processes and requirements governing SIP
submissions. Within 60 days of the submission, but no later
than six months after the submission deadline, EPA must
review each submission for completeness. 42 U.S.C.
§ 7410(k)(1)(B). The Act defines a complete submission as
one that contains “the information necessary to enable” EPA
to “determine whether the plan submission complies” with the
NAAQS requirements. Id. § 7410(k)(1)(A). Pursuant to the
Act, EPA has developed criteria for evaluating whether a
plan meets the completeness requirement. See 40 C.F.R.
§ 51.103 & App. V. 3 If EPA finds the plan complete, it has
2 In addition to ground-level ozone, NAAQS cover lead, sulfur
dioxide, carbon monoxide, nitrogen oxide, and small particulate
matter. See id.
‘ Under these criteria, a complete plan must include (among other
things) evidence of legal authority under state law to adopt and
implement the plan, copies of regulations and orders necessary to
implement the program, and technical documentation of the state
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4
5
twelve months to determine whether the plan meets the
substantive requirements of the Act. 42 U.S.C. § 7410(k)(2).
At this stage, EPA evaluates the detailed models for pollution
control submitted by states and compares them with the
federal standards and attainment deadlines. 4 EPA may ap-
prove the plan in whole or in part, disapprove the plan, or
conditionally approve the plan based on a state commitment
to adopt specific enforcement methods. I d. § 7410(k)(3)-(4).
Congress established a number of incentives for states to
comply with SIP submission and implementation deadlines.
These include mandatory sanctions, discretionary sanctions,
and imposition of a Federal Implementation Plan (“FIP”).
Of importance here, § 179 requires EPA to impose mandato-
ry sanctions on states that fail to comply with SIP obligations.
That provision lists several EPA findings that trigger an
18—month sanctions clock, at the end of which EPA must
impose one of two sanctions “unless such deficiency has been
corrected.” 42 U.S.C. § 7509(a) (emphasis added). The trig-
gering events are: a finding of state failure to make a
required plan submission or failure to submit a complete plan;
disapproval of a SIP in whole or in part; or a finding of state
failure to implement any element of an approved plan. IcL
§ 7509(a)(1)-(4). Once sanctions have been imposed, they
remain in place until EPA determines that the state “has
come into compliance” with its Clean Air Act obligations.- Id.
§ 7509(a). 5
program demonstrating its compliance with NAAQS attainment
deadlines. See icL
For each of the NAAQS pollutants, the Act provides separate
attainment deadlines depending on the severity of the pollution
problem in a particular area. See 42 U.S.C. § 7511 (ozone), 7512
(carbon monoxide), 7513 (particulate matter), 7514a (sulfur oxides,
nitrogen dioxide, and lead). For each type of pollutant and area
classification, the Act specifies a range of different programs that
states must adopt to meet NAAQS attainment goals. See, e.g., icL
§ 7511a (ozone plan provisions).
Under § 179(b), 42 U.S.C. § 7509(b), there are two mandatory
sanctions for noncomplying states: (I) limitations on certain federal
In addition, § 110(m), 42 U.S.C. § 7410(m), authorizes EPA
to impose discretionary ianctions on a state at any time after
EPA makes one of the four findings set forth in § 179(a).
Consequently, in the event of state delay in submission and
implementation of NAAQS program elements, EPA can levy
sanctions without waiting for expiration of the 18—month
period required before mandatory sanctions are imposed.
The available sanctions are the same as those under the
mandatory provision, but unlike the mandatory § 179(b) sanc-
tions, discretionary sanctions are not limited to any particular
nonattainment area and can be imposed statewide. See Crite-
ria for Exercising Discretionary Sanctions Under Title I of
the Clean Air Act, 59 Fed. Reg. 1476 (Jan. 11, 1994).
The 1990 Amendments continued EPA’s responsibility to
prepare and impose a FIP within two years following a state’s
failure to develop and implement a complete and approved
plan. See 42 U.S.C. § 7410(c). In the event of a deficiency
finding due to nonsubmission, incompleteness, or disapproval,
EPA mu t promulgate a federal plan for the attainment or
maintenance of NAAQS in a particular region. The FTP
provides an additional incentive for state compliance because
it rescinds state authority to make the many sensitive techni-
cal and political choices that a pollution control regime de-
mands. The FIP provision also ensures that progress toward
NAAQS attainment will proceed notwithstanding inadequate
action at the state level. In contrast to the mandatory
sanctions, which a state can avoid merely by correcting the
submission deficiency, FIP promulgation can be avoided only
highway funding, and (2) “offset” limitations on certain develop. -
ments in affected areas that require each new stationary emission
source to be paired with a reduction in area emissions amounting to
double the- amount of increased emissions from the new source.
One of these sanctions must be imposed if a state has not corrected
the § 179 deficiency within 18 months after the EPA finding; the
other sanction must be imposed within the next six months if the
deficiency remains uncorrected. If EPA determines that the state
has not acted in good faith, however, both sanctions apply simulta-
neously. 42 U.S.C. § 7509(a).
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6
7
if EPA has actually approved the state’s SIP submission. 6
Finally, the Act provides that when a nonattainment area
fails to meet an attainment deadline, EPA must reclassify
that area to the next higher classification. For example, a
marginal ozone nonattainment area must be reclassified to a
moderate nonattainment area within six months after the
attainment date has not been met. See 42 U.S.C.
§ 7511(b)(2); see also id. § 7512(b)(2) (carbon monoxide),
7513(b)(2) (particulate matter). Once reclassified, an area
must meet the requirements of the new classification. See,
e.g., id § 7511a(i), 7511(b)(4) (specifying additional obli-
gations applicable to severe ozone areas that fail to attain).
Because the control regime increases in cost and complexity
with each step up the nonattainment ladder, seep e.g., icL
§ 7511a(b)-(d) (specifying additional control measures for
higher ozone classification levels, such as enhanced vehicle
inspection and maintenance programs), the reclassification
provisions function as yet another incentive for states to
attain their air quality objectives within the statutory dead-
lines.
B. Final Rule. EPA’s final rule interpreting § 179 es-
tablished the order in which EPA will apply the mandatory
sanctions of § 179(b) and the procedures for starting and
stopping the 18.-month sanctions clock. See 59 Fed. Reg.
39,832, 39,837—52 (August 4, 1994). EPA explained that
under its reading of § 179, a state can halt the sanctions clock
by correcting the specific SIP deficiency that triggered the
clock under § 179(a). In particular, the final rule provides
that when a state fails to submit a complete plan within six
months of the submission deadline, the subsequent submis-
sion of, a complete plan will permanently stop and reset the
sanctions clock, even if the plan is ultimately unapprovable.
Id. at 39,857—58. Thus, when EPA determines that a state
has missed a submission deadline or submitted an incomplete
6 Section 11O(c)(1) requires EPA to promulgate a FIP “unless the
State corrects the deficiency, and the Administrator approves the
plan or plan revision, before the Administrator promulgates such
Federal implementation plan.” 42 U.S.C. - 7410(c)(1).
plan, the 18—month countdown begins, and if the state sub-
mits a plan that meets EPA completeness criteria within that’
18—month period, no sanctions will apply. EPA then has
twelve months to review the plan’s technical elements for
compliance with the Act’s substantive requirements; if EPA
finds one or more of these elements lacking, EPA will disap-
prove the plan and a new 18-month clock will begin:
- II.
Petitioner NRDC timely petitioned for review of EPA’s
interpretation, see 42 U.S.C. § 7607(b)(1), taking issue with
the type of state action EPA views as sufficient to halt the
sanctions ‘clock when a state has failed to submit a complete
SIP. NRDC contends that the final rule conflicts with Con-
gress’ intent to impose mandatory sanctions no later than 18
months after EPA finds that a state has not submitted an
approvable plan. In the alternative, NRDC maintains that
even if Congress’ intent is unclear, the rule is unreasonable
because it “destroys the intricate structure” of the 1990
amendments, which Congress designed to ensure that states
take necessary steps to comply with federal air quality stan-
dards by statutory deadlines. Accordingly, the issue in the
instant appeal is EPA’s construction of the term “such defi-
ciency” to refer to each specific finding or deficiency listed in
§ 179(a), whereby a state can halt a sanctions clock, triggered,
by an EPA finding of incompleteness, by submitting a com-
plete plan.
The court reviews NRDC’s challenge pursuant to the
framework set forth in Chevron USA, Inc. v. Natural Re-
sources Defense Counci4 Inc., 467 U.S. 837 (1984). Under
this analysis, the court must first exhaust the “traditional
tools of statutory construction” to determine whether Con-
gress has spoken to the precise question at issue. Id. at 843
n.9. If the court can determine congressional intent, “then
that interpretation must be given effect.” Kansas .City v.
Department of Housing & Urban Dev., 923 F.2d 188, 191
(D.C. Cir. 1991) (citing United Food & Commercial Workers,
484 U.S. 112, 123 (1987)). If, on the other hand, “the statute
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8
9
is silent or ambiguous with respect to the specific issue,” then
the court will defer to a “permissible” agency construction of
the statute. Chevron, 467 U.s at 843. We conclude under
step one of the Chevron analysis that the language and
context of § 179 clearly reveal that Congress intended to
allow states to avoid mandatory sanctions by correcting only
the specific deficiency that initially triggered the sanctions
countdown.
Our inquiry begins, as it must, with the text of the statute.
See Deniarest v. Manspeaker, 498 U.S. 184, 187 (1991); Unit-
ed States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241
(1989). After setting forth several types of EPA deficiency
findings—for nonsubmittal, incompleteness, substantive unap-
provability, or nonimpIementation— 179(a) provides that:
unless such deficiency has been corrected within 18
months after the finding, disapproval or determination
referred to in paragraphs (1), (2), (3), and (4), one of the
sanctions referred to in subsection (b) of this section
shall apply.. .
42 U.S.C. § 7509(a) (emphasis added). Under the only natu-
ral reading of the term, “such deficiency” refers to the “state
failure [ ]“ (as the caption puts it) that gave rise to the EPA
finding or determination listed in § 179. As such, the defi-
ciency that must be remedied is the specific deficiency that,
by leading to an EPA “finding, disapproval or determination,”
triggered the sanctions clock. It follows that when EPA
activates a sanctions clock because a state has failed to
submit a complete SIP, EPA must also halt the clock when
the state corrects that specific deficiency. EPA adopted this
interpretation in its final rule, see 58 Fed. Reg. at 39,850—51,
and we agree that the statute requires it. 1
EPA finds additional support for its interpretation by compar-
ing § 179(a) with § 110(c)(1), which requires EPA to develop a FIP
in the event of state noncompliance. Under § 110(c), EPA must act
within two years of a finding or disapproval listed in § 179(a),
“unless the State corrects the deficiency, and the Administrator
approves the plan or plan revision, before the Administrator pro-
mulgates such Federal implementation plan.” (emphasis added).
NRDC’s contrary reading of § 179 lacks the textual sup-
port necessary to overcame EPA’s straightforward construc-
tion. NRDC maintains that Congress designed § 179 to
address only two types of state SIP deficiencies: a state’s
failure to submit a SIP that meets the Act’s requirements, or
a state’s failure to implement an approved SIP. Then, after a
finding of nonsubmittal or• incompleteness, the 18—month
clock would be activated and could only be stopped when a
state corrects the underlying deficiency by submitting an
approvable plan. In formulating state obligations under the
Clean Air Act, according to NRDC, Congress did not differ-
entiate between the duty to submit a complete plan and the
duty to submit an approvable plan. NRDC notes, for exam-
ple, that the SIP submission deadlines make no such distinc-
tion; rather, they require states only to submit plans that
satisfy the statutory criteria—namely, plans that are approva-
ble. See 42 U.S.C. § 7410(a)(2) (listing requirements that
each plan must satisfy). In NRDC’s view, this indicates that
Congress’ only concern was that a state timely submit an
approvable plan, and that only an approvable SIP can turn off
the sanctions clock.
Because § 110(c) contains a SIP approval requirement that does not
appear in § 179(a), EPA maintains that Congress knew how to
require EPA approval to prevent a sanction from taking effect., and
did not intend such a requirement to halt the sanctions clock under
§ 179. However, NRDC persuasively responds that inclusion of a
specific approval requirement in § 110(c) is not inconsistent with its
construction of the phrase “such deficiency” in both § 110(c) and
§ 179. Under this view, § 110(c) imposes a higher threshold of
EPA approval before halting the FIP clock in order to ensure that a
working plan is in place for each nonattainment region within two
years. By contrast, NRDC reads § 179 to require a state to submit
only an approvable plan—a more modest requirement that would
not penalize the state for delays caused by the lengthy EPA
approval process. NRDC thus explains that the approval require-
ment in § 110(c) is not superfluous under its interpretation, and for
this reason we find EPA’s additional textual argument unavailing.
By the same token, however, § 110(c) provides no support for
NRDC’s interpretation of § 179, which (we conclude) conflicts with
the plain language of the statute.
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11
To explain why § 179(a) lists four separate events that
activate the 18—month sanctions clock, NRDC distinguishes
between administrative findings that trigger the sanctions
clock, and “underlying deficiencies” in state compliance that
must be corrected to avoid sanctions. NRDC suggests that
Congress listed the EPA findings in § 179(a) in order to
ensure that the sanctions clock would be promptly activated
where plan inadequacies could be readily identified. Under
the two-stage procedure established in § 110(k), EPA first
makes an essentially ministerial finding of completeness, a
process taking at most six months. By contrast, the plan
approval process may take up to twelve months due to the
more extensive technical analyses necessary to ensure that
the SIP meets the Act’s substantive requirements. See 42
U.S.C. § 7410(k)(1)-(3). By listing incompleteness and
nonapproval as separate triggering events, NRDC contends,
Congress meant to set the clock ticking at the earliest
possible moment, not to establish a separate state duty to
submit a complete SIP.
Although plausible in theory and principle, NRDC’s read-
ing cannot be reconciled with Congress’ use of the term “such
deficiency” in § 179(a). NRDC points to no specific textual
support for its contention that this phrase refers to the failure
to submit an approvable SIP. Instead, NRDC maintains that
§ 179 can be properly understood only in light of the statuto-
ry scheme and legislative history that, it asserts, show a clear
congressional intent at odds with EPA’s interpretation.
Where the terms of a statute are unambiguous, further
judicial inquiry into the intent of the drafters is generally
unnecessary. See Demarest., 498 U.S. at 190—91; Inner City
Broadcasting Corp. v. Sanders, 733 F.2d 154, 158 (D.C. Cir.
1984) (“ [ U]nless contrary indications are present, a court can
assume that Congress intended the common .usage of the
term to apply.”). At the same time, “while the immediate
statutory text is the ‘best evidence’ of congressional intent,” it
is not “the only such evidence.” Tataranov4cz v. Sullivan,
959 F:2d 268, 276 (D.C. Cir. 1992) (citing McCarthy v. Bron-
son, 111 S. Ct. 1787, 1740 (1991); Crandon v. United States,
494 U.s. 152, 158 (1990)); see also American Scholastic TV
Programming FouncL v. FCC, 46 F.3d 1173, 1178 (D.C. Cir.
1995) (“ASTV”). Reference to statutory design and perti-
nent legislative history may often shed new light on congres-
sional intent, notwithstanding statutory language that ap-
pears “superficially clear.” ASTV 46 F.3d at 1180 (quoting
Tataranowicz, 959 F.2d at 277). Here, however, NRDC has
presented no persuasive evidence that Congress intended any
meaning other than that suggested by a straightforward
reading of § 179.
As evidence of Congress’ true intent, NRDC points to the
role of mandatory sanctions within the statutory scheme as a
whole. The Clean Air Act, it contends, established an intri-
cate structure of intermediate steps designed to lead states
gradually to attainment of the national air quality standards.
Congress intended the 1990 amendments to remedy the fail-
ings of the pre-1990 Act, which did not impose specific
incremental deadlines and thus led to widespread nonattain-
ment. The 1990 amendments, therefore, included specific
deadlines for states to submit emission control plans well in
advance of the attainment deadlines and imposed strict dead-
lines and requirements on EPA’s response to state subruis-
sions, including prompt sanctions to ensure that the plan
submission deadlines were met.
According to NRDC, EPA’s rule disrupts this system and
perversely rewards state delay. A state that submits a
complete but unapprovable SIP on schedule, for example, will
face sanctions sooner than a state that submits an incomplete
SIP, waits until just before the 18-month period expires, and
then submits a complete SIP. If that SIP ultimately proves
unapprovable, moreover, it is possible that four and a half
years might elapse between the initial SIP deadline and the
imposition of mandatory sanctions. In some circumstances,
NRDC notes, EPA’s rule may allow a state to avoid rnandato-
ry sanctions until after the attainment dates have already
passed. Finally, NRDC notes that the rule will create the
anomalous result that FIPs will be implemented in’ many
cases before states face sanctions for their failure to submit
approvable state plans, thereby rendering sanctions superflu-
ous. Thus, NRDC maintains that EPA’s interpretation con-
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13
flicts with Congress’ intent to strengthen the sanctions re-
gime in tandem with a graduated program of state compli-
ance.
As NRDC views it, EPA’s interpretation destroys an other-
wise seamless web of incremental state obligations that to-
gether lead inexorably to NAAQS attainment. But § 179 is
only one of several mechanisms in the 1990 amendments that
encourage state compliance. See supra Part I. EPA’s dis-
cretionary authority under § 110(m) can be used to counter-
act a state’s abuse of the SIP submission timeline, for exam-
ple. At the same time, the attainment deadlines remain
intact, complete with additional program obligations in the
event of nonattainment, irrespective of a state’s dereliction in
the SIP process. In addition, the statute requires EPA tO
impose a FIP within two years of a deficiency finding—a
control regime that remains in place until the state submits
and gets approved its own SIP. 8 Furthermore, EPA ob-
serves that even if states abuse the SIP submission schedule,
under most circumstances the § 179 sanctions will precede
the attainment deadlines. Hence, although Congress clearly
established mandatory sanctions to increase the pressure on
recalcitrant states and EPA, the additional delay allowed by
EPA’s interpretation, as compared with that urged by
NRDC, is not incompatible with the multi-faceted statutory
scheme as a whole. See Natural Resources Defense Counci4
Inc. v. EPA, 822 F.2d 104, 113 (D.C. Cir. 1987) (“statutes are
rarely, if ever uni(-]dimensionally directed towards achieving
or vindicating a single public policy.... While a broad public
policy goal may well be the animating force driving the
legislation, achievement of actual passage of the measure
invariably requires compromise and accommodation.”); cf
Natural Resources Defense Counci4 Inc. v. EPA, 22 F.3d
8 Although NRDC suggests that Congress established the manda-
tory sanctions regime precisely because discretionary sanctions and
FIPs were inadequate incentives for state compliance, the legisla-
tive history indicates that Congress viewed the FIPs as a useful
backstop to state planning. See H.R. REP No. 490, 101st Cong., 2d
Sess. 229 (1990) (“House Report”) (“Historically, the FIP process
has been effective.”).
1125, 1139 (D.C. Cir. 1994) (finding no inconsistency in EPA’s
setting an implementation date for vehicle inspection pro-
grams after Clean Air Act attainment deadline). As such,
NRDC’s reference to the statutory scheme as evidence that
EPA’s rule misconstrues congressional intent is unavailing.
Nor is NRDC’s reliance on the legislative history of the
1990 amendments persuasive. In part, NRDC points to..
general expressions of the need to avoid delay, but these
provide no real insight into the question presented and conse-
quently carry no weight. 9 NRDC’s reliance on a statement
by the managers of the Senate bill is equally unpersuasive.
Explaining the conference agreement, their statement asserts
that: “In the event more than 18 months elapse after submis-
sion is required and the state program has not been submit-
ted and approved, the conference agreement requires EPA to
impose a sanction.” 136 CONG. REC. S16,942 (Oct. 27, 1990)
(emphasis added). 1 ° Even assuming it is probative of con-
gressional intent,” this statement lacks the deliberate and
9 Compare Brief for Petitioner at 26 (citing House Report at 228
(“The Committee intends the mandatory sanction to send a strong
message that Congress is very serious about the effort to achieve
clean air, and will require all States to comply fully with the
provisions of the Clean Air Act.”)) with United States v. Grander-
son, 114 S. Ct. 1259, 1265 (1994) (“ [ VIle cannot divine from the
legislators’ many ‘get tough on drug offenders’ statements any
reliable guidance to particular provisions. None of the legislators’
expressions ... focuses on ‘the precise meaning of the provision at
issue in this case.’ “) (citation omitted).
‘°Although this statement actually refers to a state’s submission
of an operating permit program under a separate Title of the Clean
Air Act ( 502), NRDC maintains that this provision incorporates
by reference the sanctions timing schedule in § 179(a)-(b). Thus, to
the extent it reflects Congress’ intent about the timing of the
sanctions clock in §502, that intent would also apply to § 179.
I But see Brock v. Pierce County, 476 U.S. 253, 263 (1986)
(statements of individual legislators provide evidence of Congress’
intent when consistent with statutory language and other legislative
history); CoaUtion for Clean Air v. South CaL Edison, 971 F.2d
219, 227 (9th Cir. 1992).
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14
15
definite quality of persuasive legislative hist.ory. EPA points
out that the remedy for deficient plan submissions was not
raised in the Conference Report or specifically addressed
except as provided in the statute itself, thereby undermining
the significance of the summary of the conference agreement.
In addition, if the Senate managers’ interpretation were
correct, it could not be reconciled with the clear approvability
requirement in § 110, see supra note 7. The managers’
statement also appears inconsistent with the second piece of
legislative history on which NRDC relies, the House Report’s
description of § 179. In the single sentence cited by NRDC,
the report states that: “This system of mandatory sanctions
is intended to provide a clear incentive to States for the
development and implementation of approvable State air
quality plans.” House Report at 228. The two pieces of
legislative history thus conflict about whether a plan submis-
sion must be approved or merely approvabie in order to avert
sanctions. While NRDC acknowledges this tension and con-
tends that under either interpretation EPA’s rule falls short,
the House Report’s treatment of the mandatory sanctions
provision actually cuts against NRDC’s interpretation.
In describing the mandatory sanctions mechanism, the
House Report states:
Section 179(a) outlines the State failures which are sane-
tionable once the EPA Administrator makes the finding
or determination or takes a disapproval action.
These -failures include failure to submit a plan or plan-
element meeting the minimum criteria of section 110(k),
EPA disapproval of a State plan in whole or in part,
failure to make any required submission satisfying the
minimum criteria of section 110(k), and failure to imple-
ment any requirement of an approved plan. If the State
has not corrected such deficiency within 18 months from
the Administrator’s finding, determination or disapprov-
al, (the mandatory sanctions will apply].
House Report at 227. By apparently equating the term
“such deficiency” with “State failures which are sanctionable,”
and identifying “(tjhese failures” as the four kinds of short-
comings listed in § 179(a), this passage strongly reinforces
EPA’s interpretation that “such deficiency” refers to any of
the shortcomings listed in § 179(a). The House Report
makes no distinction between EPA administrative findings
and the underlying state failures; rather, failure to submit a
complete SIP is defined as an independently sanctionable
deficiency. As such, it is natural to conclude that correction
of that individual deficiency is sufficient to avoid the correla-
tive sanctions.
On balance, the legislative history of § 179 ‘appears to
support EPA’s interpretation, not NRDC’s. - In light of the
clear meaning of the words used by Congress, and “absent a
clearly expressed legislative intention to the contrary,” Con.
sumer Product Safety Comm’n v. GTE Sylvania, Inc., 447
U.S. 102, 108 (1980), we uphold EPA’s construction and it is
unnecessary to reach the second step of the Chevron analysis.
See Chevron, 467 U.s. at 843. Accordingly, we deny the
petition for review.
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.# ID S7 1 ,
‘ T.,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WASHINGTON, D.C. 20460
JUN 26 1995
OFFICE OF
GENE RAL COUNSEL
MEMORANDUM
SUBJECT: SIP Guidance Notebooks
FROM:
As we promised at the Title I workshop, we are sending each
of the ORC offices one set of the SIP Guidance notebooks. Each
set is comprised of four notebooks (creatively entitled “SIP
Guidance Notebook 1,” SIP Guidance Notebook 2” ...). The four
notebooks include various forms of guidance and other documents
that should be helpful in processing most types of SIP
submitta].s. Please note that the notebooks do not contain the
guidance for S02 SIPS. We are working to get copies of S02
notebooks that OAQPS prepared last year. Please let me know if
your office already has a copy of those notebooks as I believe
OAQPS may only have a limited number.
If you have any questions, please give me a call at (703)
235—5334.
1 — (. -‘ “: / -
( t , v 4 ‘ ‘ ( t.d
‘I ’ ?,
Jan Tierney, Attorney -
Air and Radiation Divi on
TO: Mike Kenyon/Joel Blumstein
David Stone (Region 2)
Judy Katz (Region 3)
Alan Dion (Region 4)
Louise Gross (Region 5)
Lucinda Watson (Region 6)
(Region 1)
Bob Patrick (Region 7)
Jonah Staller (Region 8)
Nina Spiegelman (Region 9)
Meg Silver (Region 10)
(C- f( id( _—(
-I
Printed on Recycled Paper
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