[Federal Register Volume 77, Number 207 (Thursday, October 25, 2012)]
[Proposed Rules]
[Pages 65151-65164]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-26210]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 52 and 81
[EPA-R01-OAR-2012-0290; FRL-9744-1]
Approval and Promulgation of Implementation Plans and Designation
of Areas for Air Quality Planning Purposes; New Hampshire;
Redesignation of the Southern New Hampshire 1997 8-Hour Ozone
Nonattainment Area
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: EPA is proposing to approve: the State of New Hampshire's
request to redesignate the Boston-Manchester-Portsmouth (SE), New
Hampshire moderate 8-hour ozone nonattainment
[[Page 65152]]
area to attainment for the 1997 8-hour ozone National Ambient Air
Quality Standard (NAAQS); a State Implementation Plan (SIP) revision
containing a 10-year maintenance plan for this area; a 2008
comprehensive emissions inventory for the area; and new motor vehicle
emissions budgets (MVEBs) for the years 2008 and 2022 that are
contained in the 10-year ozone maintenance plan for this area. Finally,
EPA is proposing to withdraw the SIP-approved 2009 MVEBs and replace
them with the 2008 MVEBs included in the maintenance plan.
DATES: Written comments must be received on or before November 26,
2012.
ADDRESSES: Submit your comments, identified by Docket ID Number EPA-
R01-OAR-2012-0290 by one of the following methods:
1. www.regulations.gov: Follow the on-line instructions for
submitting comments.
2. Email: [email protected]
3. Fax: (617) 918-0047.
4. Mail: ``Docket Identification Number EPA-R01-OAR-2012-0290,''
Anne Arnold, U.S. Environmental Protection Agency, EPA New England
Regional Office, 5 Post Office Square, Suite 100 (mail code: OEP05-2),
Boston, MA 02109-3912.
5. Hand Delivery or Courier. Deliver your comments to: Anne Arnold,
Manager, Air Quality Planning Unit, Office of Ecosystem Protection,
U.S. Environmental Protection Agency, EPA New England Regional Office,
5 Post Office Square, Suite 100, Boston, MA 02109-3912. Such deliveries
are only accepted during the Regional Office's normal hours of
operation. The Regional Office's official hours of business are Monday
through Friday, 8:30 to 4:30, excluding legal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R01-OAR-
2012-0290. EPA's policy is that all comments received will be included
in the public docket without change and may be made available online at
www.regulations.gov, including any personal information provided,
unless the comment includes information claimed to be Confidential
Business Information (CBI) or other information whose disclosure is
restricted by statute. Do not submit through www.regulations.gov or
email, information that you consider to be CBI or otherwise protected.
The www.regulations.gov Web site is an ``anonymous access'' systems,
which means EPA will not know your identity or contact information
unless you provide it in the body of your comment. If you send an email
comment directly to EPA without going through www.regulations.gov, your
email address will be automatically captured and included as part of
the comment that is placed in the public docket and made available on
the Internet. If you submit an electronic comment, EPA recommends that
you include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit. If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment. Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses. For additional
information about EPA's public docket visit the EPA Docket Center
homepage at http://www.epa.gov/epahome/dockets.htm.
Docket: All documents in the electronic docket are listed in the
www.regulations.gov index. Although listed in the index, some
information is not publicly available, i.e., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, is not placed on the Internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in www.regulations.gov or
in hard copy at Air Quality Planning Unit, Office of Ecosystem
Protection, U.S. Environmental Protection Agency, EPA New England
Regional Office, One Congress Street, 11th floor, (CAQ), Boston, MA
02114-2023. EPA requests that if at all possible, you contact the
person listed in the FOR FURTHER INFORMATION CONTACT section to
schedule your inspection. The Regional Office's official hours of
business are Monday through Friday, 8:30 to 4:30, excluding legal
holidays.
FOR FURTHER INFORMATION CONTACT: Richard P. Burkhart, Air Quality
Planning Unit, U.S. Environmental Protection Agency, EPA New England
Regional Office, 5 Post Office Square, Suite 100, Boston, MA 02109-
3912, telephone number (617) 918-1664, fax number (617) 918-0664, email
[email protected].
In addition to the publicly available docket materials available
for inspection electronically in the Federal Docket Management System
at www.regulations.gov, and the hard copy available at the Regional
Office, which are identified in the ADDRESSES section of this Federal
Register, copies of the state submittal are also available for public
inspection during normal business hours, by appointment at the State
Air Agency: Air Resources Division, Department of Environmental
Services, 6 Hazen Drive, P.O. Box 95, Concord, NH 03302-0095.
SUPPLEMENTARY INFORMATION: Throughout this document whenever ``we,''
``us,'' or ``our'' is used, we mean EPA.
Table of Contents
I. What is EPA proposing?
II. What is the background for these proposed actions?
A. General Background
B. What are the impacts of the December 22, 2006 and June 8,
2007 United States Court of Appeals decisions regarding EPA's Phase
I Implementation Rule?
III. What are the criteria for redesignation to attainment?
IV. What is EPA's analysis of the State's request?
A. Has the Southern NH area has attained the 1997 8-hour ozone
NAAQS?
B. Has the State of New Hampshire met all applicable
requirements of Section 110 and Part D and does the Southern NH area
have a fully approved SIP under Section 110(k) of the CAA for
purposes of redesignation to attainment?
1. Requirements Under the 1997 8-Hour Ozone Standard
2. Requirements Under the 1-Hour Ozone Standard
3. Requirements of Section 110 and Part D of the CAA Applicable
for Purposes of Redesignation for the 8-Hour NAAQS
a. Section 110 and General SIP Requirements
b. Part D SIP Requirements
C. Are the air quality improvement in the Southern NH area is
due to permanent and enforceable reductions in emissions?
D. Does the Southern NH area have a fully approved maintenance
plan pursuant to Section 175a of the CAA?
1. Maintenance Plan Requirements
2. EPA's Analysis of the Southern NH Maintenance Plan
a. Attainment Emissions Inventory
b. Maintenance Demonstration
c. Monitoring Network
d. Verification of Continued Attainment
e. The Maintenance Plan's Contingency Measures
V. How are MVEBs developed and what is an adequacy determination?
VI. What is the status of EPA's adequacy determination for the
area's MVEBs for 2022?
VII. Proposed Actions
VIII. Statutory and Executive Order Reviews
I. What is EPA proposing?
EPA is proposing to determine that the Boston-Manchester-Portsmouth
(SE), New Hampshire 1997 8-hour ozone nonattainment area (hereafter the
``Southern NH'' area) has met the requirements for redesignation under
sections 107(d)(3)(E) and 175A of the Clean Air Act (CAA). EPA is thus
proposing to approve New Hampshire's
[[Page 65153]]
request to change the legal designation of the Southern NH area from
nonattainment to attainment for the 1997 8-hour ozone NAAQS. In this
rulemaking, EPA is also proposing to approve New Hampshire's
maintenance plan SIP revision for the Southern NH area under CAA
section 175A, such approval being one of the CAA criteria for
redesignation to attainment status. The maintenance plan is designed to
keep the Southern NH area in attainment of the ozone NAAQS through
2022. EPA is proposing to approve the 2008 comprehensive emissions
inventory for the Southern NH area as meeting the requirements of
section 182(a)(1) of the CAA. Finally, EPA is proposing to approve the
newly-established 2008 and 2022 MVEBs for the Southern NH area. At the
state's request, EPA is proposing to remove the 2009 MVEBs prepared
using MOBILE6.2 and replace them with 2008 MVEBs prepared using
MOVES2010. EPA will finalize its approval of the redesignation request
only if EPA also approves the 2008 comprehensive emissions inventory,
vehicle inspection/maintenance (I/M) program and certain Reasonably
Available Control Technology (RACT) rules for the area. EPA plans to
take final action on the emission inventory, RACT rules, and revised I/
M program, prior to, or in conjunction with, EPA's final approval of
New Hampshire's redesignation request.
II. What is the background for these proposed actions?
A. General Background
Ground-level ozone is not emitted directly by sources. Rather,
emissions of nitrogen oxides (NOX) and volatile organic
compounds (VOCs) react in the presence of sunlight to form ground-level
ozone. NOX and VOCs are referred to as precursors of ozone.
The CAA establishes a process for air quality management through
the NAAQS. Before promulgation of the 1997 8-hour standard, the ozone
NAAQS was based on a 1-hour standard. The Boston-Manchester-Portsmouth
(SE), NH area 1997 8-hour ozone nonattainment area is composed of
portions of three formerly separate 1-hour ozone nonattainment areas:
(1) The Portsmouth-Dover-Rochester, NH serious 1-hour ozone
nonattainment area; (2) the Boston-Lawrence-Worcester, MA-NH serious 1-
hour ozone nonattainment area; and (3) the Manchester, NH marginal 1-
hour ozone nonattainment area.
All three of these areas attained the 1-hour ozone standard by
their respective attainment dates. Specifically, for the Boston-
Lawrence-Worcester, MA-NH 1-hour area, see EPA's final determination at
77 FR 31496, May 29, 2012. For the Portsmouth-Dover-Rochester, NH 1-
hour area and the Manchester, NH 1-hour area, see EPA's proposed
determination at 77 FR 42470, July 19, 2012. (EPA will take final
action with respect to this determination prior to taking final action
on the redesignation request.)
On July 18, 1997 (62 FR 38856), EPA promulgated an 8-hour ozone
standard of 0.08 parts per million parts (ppm). On April 30, 2004 (69
FR 23858), EPA published a final rule designating and classifying areas
under the 8-hour ozone NAAQS. These designations and classifications
became effective June 15, 2004. EPA designated as nonattainment any
area that was violating the 8-hour ozone NAAQS based on the three most
recent years of air quality data, 2001-2003. The Southern NH area was
designated as nonattainment for the 1997 8-hour ozone standard and
classified as a ``moderate'' nonattainment area under subpart 2 of the
CAA. This area includes 54 cities and towns in Hillsborough, Merrimack,
Rockingham, and Strafford Counties. See 40 CFR 81.330, for exact
listing of cities and towns.
The CAA contains two sets of provisions, subpart 1 and subpart 2,
that address planning and control requirements for nonattainment areas.
(Both are found in title I, part D, 42 U.S.C. 7501-7509a and 7511-
7511f, respectively.) Subpart 1 contains general requirements for
nonattainment areas for any pollutant, including ozone, governed by a
NAAQS. Subpart 2 provides more specific requirements for ozone
nonattainment areas. Under EPA's implementation rule for the 1997 8-
hour ozone standard (69 FR 23951, April 30, 2004), the Southern NH area
was designated as a subpart 2, 8-hour ozone moderate nonattainment area
by EPA based on air quality monitoring data from 2001-2003.
The New Hampshire Department of Environmental Services (NH DES)
submitted a request to redesignate the Southern NH area to attainment
of the 1997 8-hour ozone standard on March 2, 2012, with a supplement
submitted on September 21, 2012. Complete, quality-assured and
certified data show the area first attained the 1997 8-hour NAAQS based
on 2002-2004 data and has remained in attainment since then (see 73 FR
14387, March 18, 2008 and 76 FR 14805, March 18, 2011). In addition,
available preliminary ozone monitoring data for 2012 indicate continued
attainment of the standard. See complete discussion of air quality data
for the Southern NH area in section IV.A. of today's action. 40 CFR
50.10 and appendix I of 40 CFR part 50 provide that the 1997 8-hour
ozone standard is attained when the three-year average of the annual
fourth-highest daily maximum 8-hour average ozone concentrations is
less than or equal to 0.08 ppm, when rounded, at all ozone monitoring
sites in the area. To support the redesignation of the area to
attainment of the NAAQS, the ozone data must be complete for the three
attainment years. The data completeness requirement is met when the
three-year average of days with valid ambient monitoring data is
greater than 90 percent, and no single year has less than 75 percent
data completeness, as determined in accordance with appendix I of 40
CFR part 50. Under the CAA, EPA may redesignate a nonattainment area to
attainment if sufficient, complete, quality-assured data are available
to show that the area has attained the standard and if the State meets
the other CAA redesignation requirements specified in section
107(d)(3)(E) and section 175A.
On March 27, 2008 (73 FR 16436), EPA promulgated a revised 8-hour
ozone standard of 0.075 ppm. On May 21, 2012 (77 FR 30088), EPA
designated all of New Hampshire as attainment/unclassifiable under the
new, more stringent 2008 8-hour ozone NAAQS (see also 40 CFR part
81.330). Today's action does not address requirements of the 2008 8-
hour ozone standard.
B. What are the impacts of the December 22, 2006 and June 8, 2007
United States Court of Appeals decisions regarding EPA's Phase 1
Implementation Rule?
On December 22, 2006, in South Coast Air Quality Management Dist.
v. EPA, the U.S. Court of Appeals for the District of Columbia (D.C.
Circuit) vacated EPA's Phase 1 Implementation Rule for the 1997 8-hour
Ozone Standard (69 FR 23951, April 30, 2004). 472 F.3d 882 (D.C. Cir.
2006). On June 8, 2007, in response to several petitions for rehearing,
the D.C. Circuit clarified that the Phase 1 Rule was vacated only with
regard to those parts of the rule that had been successfully
challenged. Id., Docket No. 04 1201. Therefore, several provisions of
the Phase 1 Rule remain effective: provisions related to
classifications for areas currently classified under subpart 2 of title
I, part D, of the CAA as 1997 8-hour nonattainment areas; the
applicable attainment dates; and the timing for emissions reductions
needed for attainment. The June 8, 2007 decision also left intact the
court's rejection of
[[Page 65154]]
EPA's reasons for implementing the 8-hour standard in certain
nonattainment areas under subpart 1 in lieu of subpart 2. By limiting
the vacatur, the D.C. Circuit let stand EPA's revocation of the 1-hour
standard and those anti-backsliding provisions of the Phase 1 Rule that
had not been successfully challenged.
The June 8, 2007 decision reaffirmed the December 22, 2006 decision
that EPA had improperly failed to retain four measures required for 1-
hour nonattainment areas under the anti-backsliding provisions of the
regulations: (1) Nonattainment area New Source Review (NSR)
requirements based on an area's 1-hour nonattainment classification;
(2) Section 185 penalty fees for 1-hour severe or extreme nonattainment
areas; (3) measures to be implemented pursuant to section 172(c)(9) or
182(c)(9) of the Act, on the contingency of an area not making
reasonable further progress toward attainment of the 1-hour NAAQS, or
for failure to attain that NAAQS; and (4) certain transportation
conformity requirements for certain types of Federal actions. The June
8, 2007 decision clarified that the court's reference to conformity
requirements was limited to requiring the continued use of 1-hour motor
vehicle emissions budgets until 8-hour budgets were available for 8-
hour conformity determinations. More recently, EPA issued new
regulations regarding 1-hour ozone anti-backsliding requirements (see
77 FR 28424, May 14, 2012) that were the subject of the court's
rulings.
EPA previously concluded that the D.C. Circuit's December 22, 2006
and June 8, 2007 decisions impose no impediment to moving forward with
redesignation to attainment, when redesignation is appropriate under
the relevant redesignation provisions of the CAA and longstanding
policies regarding redesignation requests.
III. What are the criteria for redesignation to attainment?
The CAA provides the requirements for redesignating a nonattainment
area to attainment. Specifically, section 107(d)(3)(E) allows for
redesignation provided that:
(1) The Administrator determines that the area has attained the
applicable NAAQS;
(2) the Administrator has fully approved the applicable
implementation plan for the area under section 110(k);
(3) the Administrator determines that the improvement in air
quality is due to permanent and enforceable reductions in emissions
resulting from implementation of the applicable SIP and applicable
Federal air pollutant control regulations and other permanent and
enforceable reductions;
(4) the Administrator has fully approved a maintenance plan for the
area as meeting the requirements of section 175A; and
(5) the state containing such area has met all requirements
applicable to the area under section 110 and part D.
EPA provided guidance on redesignation in the General Preamble for
the Implementation of Title I of the CAA Amendments of 1990 on April
16, 1992 (57 FR 13498), and supplemented this guidance on April 28,
1992 (57 FR 18070). EPA has provided further guidance on processing
redesignation requests in the following documents:
``Ozone and Carbon Monoxide Design Value Calculations,'' Memorandum
from William G. Laxton, Director Technical Support Division, June
18, 1990;
``Maintenance Plans for Redesignation of Ozone and Carbon Monoxide
Nonattainment Areas,'' Memorandum from G. T. Helms, Chief, Ozone/
Carbon Monoxide Programs Branch, April 30, 1992;
``Contingency Measures for Ozone and Carbon Monoxide (CO)
Redesignations,'' Memorandum from G. T. Helms, Chief, Ozone/Carbon
Monoxide Programs Branch, June 1, 1992;
``Procedures for Processing Requests to Redesignate Areas to
Attainment,'' Memorandum from John Calcagni, Director, Air Quality
Management Division, September 4, 1992;
``State Implementation Plan (SIP) Actions Submitted in Response to
Clean Air Act (Act) Deadlines,'' Memorandum from John Calcagni,
Director, Air Quality Management Division, October 28, 1992;
``Technical Support Documents (TSDs) for Redesignation Ozone and
Carbon Monoxide (CO) Nonattainment Areas,'' Memorandum from G. T.
Helms, Chief, Ozone/Carbon Monoxide Programs Branch, August 17,
1993;
``State Implementation Plan (SIP) Requirements for Areas Submitting
Requests for Redesignation to Attainment of the Ozone and Carbon
Monoxide (CO) National Ambient Air Quality Standards (NAAQS) on or
After November 15, 1992,'' Memorandum from Michael H. Shapiro,
Acting Assistant Administrator for Air and Radiation, September 17,
1993;
``Use of Actual Emissions in Maintenance Demonstrations for Ozone
and CO Nonattainment Areas,'' Memorandum from D. Kent Berry, Acting
Director, Air Quality Management Division, to Air Division
Directors, Regions 1-10, November 30, 1993;
``Part D New Source Review (part D NSR) Requirements for Areas
Requesting Redesignation to Attainment,'' Memorandum from Mary D.
Nichols, Assistant Administrator for Air and Radiation, October 14,
1994; and
``Reasonable Further Progress, Attainment Demonstration, and Related
Requirements for Ozone Nonattainment Areas Meeting the Ozone
National Ambient Air Quality Standard,'' Memorandum from John S.
Seitz, Director, Office of Air Quality Planning and Standards, May
10, 1995.
IV. What Is EPA's analysis of the State's request?
EPA is proposing to determine that the Southern NH area has met all
applicable redesignation criteria under CAA section 107(d)(3)(E). The
bases for EPA's proposed approval of the redesignation request are
discussed below.
A. Has the Southern NH area attained the 1997 8-hour ozone NAAQS?
On March 18, 2008 (73 FR 14387), EPA first determined that the
Southern NH area attained the 1997 8-hour ozone NAAQS based on
monitoring data for 2002-2004. EPA determines that an area has attained
the 1997 8-hour ozone NAAQS in accordance with 40 CFR 50.10 and 40 CFR
part 50, appendix I, based on three complete, consecutive calendar
years of quality-assured air quality monitoring data. To attain this
standard, the three-year average of the fourth-highest daily maximum 8-
hour average ozone concentrations measured at each monitor within an
area over each year must not exceed 0.08 ppm. Based on the rounding
convention described in 40 CFR part 50, appendix I, the standard is
attained if the design value is 0.084 ppm or below. The data must be
collected and quality-assured in accordance with 40 CFR part 58, and
recorded in EPA's Air Quality System (AQS). The monitors generally
should have remained at the same location for the duration of the
monitoring period required for demonstrating attainment.
In addition, on March 18, 2011 (76 FR 14805), EPA determined that
the Southern NH area attained the 1997 8-hour ozone NAAQS based on
complete, quality-assured monitoring data for 2007-2009. In the March
18, 2011 action, EPA also determined that the Southern NH area attained
the 1997 ozone standard as of June 15, 2010, its applicable attainment
date.
The State of New Hampshire's redesignation request that is the
subject of this action, includes ozone data from 1983-2010, and shows
that the area has been in attainment since 2004 (see also 73 FR 14387,
March 18, 2008 and 76 FR 14805, March 18, 2011). All ozone monitoring
data have been quality-assured in accordance with 40 CFR 58.10,
recorded in the AQS database, and certified. The data also meet the
completeness criteria in 40 CFR 50, appendix I, which requires a
minimum
[[Page 65155]]
completeness of 75 percent annually and 90 percent over each three-year
period. Monitoring data for the years 2007 to 2011 is presented in
Tables 1 and 2 below. (The tables include several years of data for
thoroughness; EPA previously determined this area attained the 1997 8-
hour NAAQS (see 73 FR 14387, March 18, 2008 and 76 FR 14805, March 18,
2011).) The 2011 data were not included in the redesignation request,
but have since been certified; thus, EPA is including them in this
proposal to show that that the area continues to attain during the most
recent three years of complete, quality-assured data for 2009-2011.
Table 1 shows, as determined on March 18, 2011 (76 FR 14805), that the
Southern NH area attained the 1997 ozone standard by its applicable
attainment date. Table 2 shows that the Southern NH area continues to
attain the 1997 ozone standard. All sites are well below the 1997 8-
hour NAAQS.
Table 1--2007-2009 Fourth-High 8-Hour Average Ozone Concentrations and 2007-2009 Design Values (Parts per
Million) in the Boston-Manchester-Portsmouth (SE), New Hampshire Area
----------------------------------------------------------------------------------------------------------------
Design value
Location AQS Site ID 4th high 2007 4th High 2008 4th High 2009 (07-09)
----------------------------------------------------------------------------------------------------------------
Manchester...................... 330110020 0.074 0.064 0.060 0.066
Nashua.......................... 330111011 0.081 0.067 0.066 0.071
Portsmouth...................... 330150014 0.078 0.069 0.070 0.072
Rye............................. 330150016 0.086 0.075 0.068 0.076
----------------------------------------------------------------------------------------------------------------
Table 2--2009-2011 Fourth-High 8-Hour Average Ozone Concentrations and 2009-2011 Design Values (Parts per
Million) in the Boston-Manchester-Portsmouth (SE), New Hampshire Area
----------------------------------------------------------------------------------------------------------------
Design Value
Location AQS Site ID 4th high 2009 4th High 2010 4th High 2011 (09-11)
----------------------------------------------------------------------------------------------------------------
Manchester...................... 330110020 0.060 0.063 * N/A
Londonderry..................... 330150018 ** ** 0.069 N/A
Nashua.......................... 330111011 0.066 0.065 0.066 0.066
Portsmouth...................... 330150014 0.070 0.064 0.064 0.066
Rye............................. 330150016 0.068 0.066 0.066 0.066
----------------------------------------------------------------------------------------------------------------
* Site moved to Londonderry; no 2009-2011 design values available.
** New site; no 2009-2011 design values available.
Preliminary data available for 2012 indicate that the area continues to attain.
In addition, as discussed below with respect to the maintenance
plan, the NH DES has committed to continue to operate an EPA-approved
monitoring network in the area as necessary to demonstrate maintenance
of the NAAQS. New Hampshire remains obligated to continue to quality-
assure monitoring data in accordance with 40 CFR part 58 and enter all
data into the AQS in accordance with Federal guidelines. In summary,
EPA proposes to find that the area has attained the 1997 8-hour ozone
NAAQS.
B. Has the State of New Hampshire met all applicable requirements of
Section 110 and Part D and does the Southern NH area have a fully
approved SIP under Section 110(k) of the CAA for purposes of
redesignation to attainment?
1. Requirements Under the 1997 8-Hour Ozone Standard
With respect to the 1997 8-hour standard, the Southern NH area is
classified under subpart 2. The June 8, 2007 opinion clarifies that the
Court did not vacate the Phase 1 Rule's provisions with respect to
classifications for areas under subpart 2. The Court's decision
therefore upholds EPA's classifications for those areas classified
under subpart 2 for the 8-hour ozone standard.
2. Requirements Under the 1-Hour Ozone Standard
In its June 8, 2007 decision the DC Circuit limited its vacatur so
as to uphold those provisions of the anti-backsliding requirements that
were not successfully challenged. Therefore, an area must meet the
anti-backsliding requirements which apply by virtue of the area's
classification for the 1-hour ozone standard. See 40 CFR 51.900, et
seq.; 70 FR 30592, 30604 (May 26, 2005). As set forth in more detail
below, the area must also address four additional anti-backsliding
provisions identified by the court in its decisions.
The anti-backsliding provisions at 40 CFR 51.905(a)(1) prescribe 1-
hour ozone standard requirements that continue to apply after
revocation of the 1-hour ozone standard to former 1-hour ozone
nonattainment areas that are also designated as nonattainment for the
1997 8-hour standard. 40 CFR 51.905(a)(1)(i) provides that the area
remains subject to the obligation to adopt and implement the applicable
requirements as defined in Sec. 51.900(f), except as provided in Sec.
51.905 (a)(1)(iii) of this section, and except as provided in paragraph
(b) of Sec. 51.905.
40 CFR 51.900(f), as amended by 70 FR 30592, 30604 (May 26, 2005),
states that ``applicable requirements'' means for an area the following
requirements to the extent such requirements apply or applied to the
area for the area's classification under section 181(a)(1) of the CAA
for the 1-hour NAAQS at designation for the 8-hour NAAQS:
Reasonably available control technology (RACT).
Inspection and maintenance programs (I/M).
Major source applicability cut-offs for purposes of RACT.
Rate of Progress (ROP) reductions.
Stage II vapor recovery.
Clean fuels fleet program under section 182(c)(4) of the
CAA.
Clean fuels for boilers under section 182(e)(3) of the
CAA.
Transportation Control Measures (TCMs) during heavy
traffic hours as provided section 182(e)(4) of the CAA.
Enhanced (ambient) monitoring under section 182(c)(1) of
the CAA.
Transportation controls under section 182(c)(5) of the
CAA.
Vehicle miles traveled provisions of section 182(d)(1) of
the CAA.
[[Page 65156]]
NOX requirements under section 182(f) of the
CAA.
Attainment demonstration or an alternative as provided
under Sec. 51.905(a)(1)(ii).
Contingency measures as provided under Sec. 51.905(b).
Pursuant to 40 CFR 51.905(c), the Southern NH area is subject to
the obligations set forth in 40 CFR 51.905(a) and 40 CFR 51.900(f).
In addition, the DC Circuit held that EPA should have retained four
additional measures in its anti-backsliding provisions: (1)
Nonattainment area NSR; (2) section 185 penalty fees; (3) contingency
measures under section 172(c)(9) or 182(c)(9) of the Act; and (4) 1-
hour MVEBs that were not yet replaced by 8-hour emissions budgets. EPA
addressed portions of the court decision in a recent Federal Register
notice (see 77 FR 28424, May 14, 2012). For the New Hampshire request
EPA has addressed these four requirements as follows:
With respect to NSR, EPA has determined that an area being
redesignated need not have an approved nonattainment NSR program,
provided that the state demonstrates maintenance of the standard in the
area without part D NSR in effect. The rationale for this view is
described in a memorandum from Mary Nichols, Assistant Administrator
for Air and Radiation, dated October 14, 1994, entitled, ``Part D New
Source Review Requirements for Areas Requesting Redesignation to
Attainment.'' This policy assumes that the state's PSD program will
become effective in the area immediately upon redesignation to
attainment. Consequently EPA concludes that an approved NSR program is
not an applicable requirement for purposes of redesignation. See the
more detailed explanations in the following rulemakings: Detroit,
Michigan (60 FR 12467-12468, March 7, 1995); Cleveland-Akron-Lorrain,
Ohio (61 FR 20458, 20469-70, May 7, 1996); Louisville, Kentucky (66 FR
53665, 53669, October 23, 2001); and Grand Rapids, Michigan (61 FR
31831, 31836-31837, June 21, 1996). Furthermore, New Hampshire has a
fully approved NSR program. The New Hampshire NSR program was last
approved on February 6, 2012 (77 FR 5700).
With regard to the requirement for section 185 source penalty fee
programs, no portion of the Southern NH area was classified as severe
or higher for the 1-hour ozone standard, and therefore the area is not
subject to this requirement.
With respect to the 1-hour MVEBs that were not yet replaced by 8-
hour emissions budgets, the conformity portion of the court's June 8,
2007 ruling clarified that, for those areas with MVEBs for the 1-hour
ozone standard, anti-backsliding requires that these MVEBs be used for
8-hour conformity determinations until replaced by MVEBs for the 8-hour
ozone standard. To meet this requirement, conformity determinations in
such areas must comply with the applicable requirements of EPA's
conformity regulations at 40 CFR part 93. Note below that EPA is
proposing to approve 8-hour MVEBs contained in New Hampshire's
redesignation request and 8-hour ozone maintenance plan for the
Southern NH area.
As stated above, in 1991, all cities and towns of what is now the
Southern NH 1997 8-hour ozone nonattainment area were designated
nonattainment by operation of law and classified by EPA. The two
largest of these areas, the Boston-Lawrence-Worcester, MA-NH 1-hour
area and the Portsmouth-Dover-Rochester, NH 1-hour area were classified
as serious ozone nonattainment areas 56 FR 56694 (November 6, 1991).
EPA previously approved the serious attainment demonstration SIP and
its associated elements, e.g., attainment MVEBs and the Reasonably
Available Control Measures (RACM) demonstration, for the Boston-
Lawrence-Worcester, MA-NH 1-hour area (see 63 FR 67405, December 7,
1998; 67 FR 18493, April 16, 2002; and 67 FR 72574, December 6, 2002).
As stated above, the Portsmouth-Dover-Rochester, NH 1-hour area
attained the 1-hour NAAQS by November 15, 1999. See 77 FR 42470, July
19, 2012. Since this area attained the 1-hour standard by its
attainment deadline there is not a need for 1-hour contingency
measures. Also as stated above, the Manchester, NH 1-hour area attained
the 1-hour standard by its attainment deadline. In addition, since the
Manchester, NH 1-hour area was a marginal area it did not need to have
contingency measures for failure to attain. Neither the Portsmouth-
Dover-Rochester, NH 1-hour area, the Boston-Lawrence-Worcester, MA-NH
1-hour area, nor the Manchester, NH 1-hour area needed to have section
185 fees since they were not classified as severe or extreme. In
conclusion, there are no outstanding 1-hour requirements for this area
(see 77 FR 42470, July 19, 2012).
We are proposing to determine that New Hampshire has met all
currently applicable SIP requirements for purposes of redesignation of
the Southern NH area to attainment of the 1997 8-hour ozone standard
under section 110 and part D of the CAA, in accordance with section
107(d)(3)(E)(v). We are also proposing to determine that the New
Hampshire SIP, with the exception of the comprehensive emission
inventory, certain RACT rules, and revisions to New Hampshire's vehicle
I/M program, is fully approved with respect to all applicable
requirements for purposes of redesignation to attainment of the 1997 8-
hour ozone standard, in accordance with section 107(d)(3)(E)(ii) of the
CAA. As discussed below, in this action, EPA is proposing to approve
New Hampshire's 2008 comprehensive emissions inventory as meeting the
comprehensive emissions inventory requirement of section 182(a)(1) for
the area. EPA is taking action on the New Hampshire RACT regulations
and vehicle I/M program revisions in separate rules. Provided that the
comprehensive emissions inventory, vehicle I/M program revisions, and
RACT rules are approved on or before we complete final rulemaking
approving the redesignation request, we determine here that, assuming
that this occurs, New Hampshire will have met all applicable section
110 and part D SIP requirements of the CAA for purposes of approval of
New Hampshire's ozone redesignation requests for the Southern NH area.
In making these determinations, we have ascertained what SIP
requirements are applicable to the area for purposes of redesignation,
and have determined that the portions of the SIP meeting these
requirements are fully approved or will be fully approved under section
110(k) of the CAA by the time we complete final rulemaking on New
Hampshire's ozone redesignation requests for the Southern NH area. As
discussed more fully below, SIPs must be fully approved only with
respect to currently applicable requirements of the CAA.
The September 4, 1992 Calcagni memorandum (see ``Procedures for
Processing Requests to Redesignate Areas to Attainment,'' Memorandum
from John Calcagni, Director, Air Quality Management Division,
September 4, 1992) describes EPA's interpretation of section
107(d)(3)(E) of the CAA. Under this interpretation, a state and the
area it wishes to redesignate must meet the relevant CAA requirements
that are due prior to the state's submittal of a complete redesignation
request for the area. See also the September 17, 1993 Michael Shapiro
memorandum and 60 FR 12459, 12465-66 (March 7, 1995) (redesignation of
Detroit-Ann Arbor, Michigan to attainment of the 1-hour ozone NAAQS).
Applicable requirements of the CAA that come due
[[Page 65157]]
subsequent to the state's submittal of a complete request remain
applicable until a redesignation to attainment is approved, but are not
required as a prerequisite to redesignation. See section 175A(c) of the
CAA. See Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004), and also 68
FR 25424, 25427 (May 12, 2003) (redesignation of the St. Louis/East St.
Louis area to attainment of the 1-hour ozone NAAQS).
As noted in the Clean Data Determination for the area (see 76 FR
14805, March 18, 2011), since EPA determined that the Southern NH area
has attained the 1997 8-hour ozone standard, under 40 CFR 51.918, the
requirements to submit certain planning SIPs related to attainment,
including attainment demonstration requirements (the reasonably
available control measure (RACM) requirement of section 172(c)(1) of
the CAA, the reasonable further progress (RFP) and attainment
demonstration requirements of sections 172(c)(2) and (6) and 182(b)(1)
of the CAA, and the requirement for contingency measures of section
172(c)(9) of the CAA) are not applicable to the area as long as it
continues to attain the NAAQS and will cease to apply upon
redesignation. In addition, in the context of redesignations, EPA has
interpreted requirements related to attainment as not applicable for
purposes of redesignation. For example, in the General Preamble, EPA
stated that:
[t]he section 172(c)(9) requirements are directed at ensuring RFP
and attainment by the applicable date. These requirements no longer
apply when an area has attained the standard and is eligible for
redesignation. Furthermore, section 175A for maintenance plans
provides specific requirements for contingency measures that
effectively supersede the requirements of section 172(c)(9) for
these areas. ``General Preamble for the Interpretation of Title I of
the Clean Air Act Amendments of 1990,'' (General Preamble) 57 FR
13498, 13564 (April 16, 1992).
See also Calcagni memorandum (dated September 4, 1992) on page 6.
(``The requirements for reasonable further progress and other measures
needed for attainment will not apply for redesignations because they
only have meaning for areas not attaining the standard.'')
3. Requirements of Section 110 and Part D of the CAA Applicable for
Purposes of Redesignation for the 8-Hour NAAQS
a. Section 110 and General SIP Requirements
Section 110(a) of Title I of the CAA contains the general
requirements for a SIP. Section 110(a)(2) provides that the
implementation plan submitted by a State must have been adopted by the
State after reasonable public notice and hearing, and, among other
things, must: Include enforceable emission limitations and other
control measures, means or techniques necessary to meet the
requirements of the CAA; provide for establishment and operation of
appropriate devices, methods, systems, and procedures necessary to
monitor ambient air quality; provide for implementation of a source
permit program to regulate the modification and construction of any
stationary source within the areas covered by the plan; include
provisions for the implementation of part C, Prevention of Significant
Deterioration (PSD) and part D, NSR permit programs; include criteria
for stationary source emission control measures, monitoring, and
reporting; include provisions for air quality modeling; and provide for
public and local agency participation in planning and emission control
rule development.
We believe that the section 110 elements that are not connected
with nonattainment plan submissions and not linked with an area's
attainment status are not applicable requirements for purposes of
redesignation. A State remains subject to these requirements after an
area is redesignated to attainment. Only the section 110 and part D
requirements that are linked with a particular area's designation and
classification are the relevant measures which we may consider in
evaluating a redesignation request. This approach is consistent with
EPA's existing policy on applicability of conformity and oxygenated
fuels requirements for redesignation purposes, as well as with section
184 ozone transport requirements. See Reading, Pennsylvania, proposed
and final rulemakings (61 FR 53174-53176 October 10, 1996) and (62 FR
24826 May 7, 1997); Cleveland-Akron-Lorain, Ohio, final rulemaking (61
FR 20458, May 7, 1996); and Tampa, Florida, final rulemaking (60 FR
62748 December 7, 1995). See also the discussion on this issue in the
Cincinnati, Ohio 1-hour ozone redesignation (65 FR 37890 June 19,
2000), and in the Pittsburgh, Pennsylvania 1-hour ozone redesignation
(66 FR 50399 October 19, 2001).
We have reviewed New Hampshire's SIP and have concluded that it
meets the general SIP requirements under section 110 of the CAA, to the
extent they are applicable for purposes of redesignation. EPA has
previously approved provisions of the New Hampshire SIP addressing
section 110 elements under the 1-hour ozone standard. See Table 3
below. All the VOC and NOX control measures listed in Table
3 are permanent and enforceable controls that will remain in place
following redesignation.
Table 3--List of New Hampshire Control Measures for Volatile Organic
Compounds and Oxides of Nitrogen
[Ozone precursors]
------------------------------------------------------------------------
Name of control measure Type of measure Approval status
------------------------------------------------------------------------
On-board Refueling Vapor federal rule..... Promulgated at 40 CFR
Recovery. part 86.
Federal Motor Vehicle Control federal rule..... Promulgated at 40 CFR
program. part 86.
Heavy Duty Diesel Engines (On- federal rule..... Promulgated at 40 CFR
road). part 86.
Federal Non-road Heavy Duty federal rule..... Promulgated at 40 CFR
diesel engines. part 89.
Federal Non-road Gasoline federal rule..... Promulgated at 40 CFR
Engines. part 90.
Federal Marine Engines........ federal rule..... Promulgated at 40 CFR
part 91.
AIM Surface Coatings.......... federal rule..... Promulgated at 40 CFR
part 59.
Automotive Refinishing........ federal rule..... Promulgated at 40 CFR
part 59.
Consumer & commercial products federal rule..... Promulgated at 40 CFR
part 59.
Inspection & Maintenance...... CAA SIP SIP approved (66 FR
Requirement. 1868; 1/10/01).
NOX RACT...................... CAA SIP SIP approved (62 FR
Requirement. 17087; 4/9/97).
VOC RACT pursuant to sections CAA SIP SIPs approved (63 FR
182(a)(2)(A) and 182(b)(2)(B) Requirement. 67405; 12/17/98);
of CAA. (63 FR 11600; 3/10/
98); (58 FR 4902; 1/
19/93); (58 FR
29973; 5/25/93).
[[Page 65158]]
VOC RACT pursuant to section CAA SIP SIPs approved (67 FR
182(b)(2)(A) and (C) of CAA. Requirement. 48034; 7/23/02); (65
FR 42290; 7/10/
2000); (63 FR 11600;
3/10/98).
Stage II Vapor Recovery....... CAA SIP SIP approved (63 FR
Requirement. 67405; 12/7/98).
Reformulated Gasoline......... state opt-in..... SIP approved (63 FR
67405; 12/7/98).
National Low Emission Vehicle. state opt-in..... SIP approved (65 FR
12476; 3/9/00).
Clean Fuel Fleets............. CAA SIP SIP approved (64 FR
Requirement. 52434; 9/29/99).
New Source Review............. CAA SIP SIP approved (66 FR
Requirement. 39100; 7/27/01).
Base Year Emissions Inventory. CAA SIP SIP approved (62 FR
Requirement. 55521; 10/27/97).
15% VOC Reduction Plan........ CAA SIP SIP approved (63 FR
Requirement. 67405; 12/7/98).
9% rate of progress plan...... CAA SIP SIP approved (67 FR
Requirement. 18547; 4/16/02).
Emissions Statements.......... CAA SIP SIP approved (63 FR
Requirement. 11600; 3/10/98).
Enhanced Monitoring (PAMS).... CAA Requirement.. SIP approved (62 FR
55521; 10/27/97).
OTC NOX MOU Phase II and III.. state initiative. SIP approved (64 FR
29567; 6/2/99).
Stage II Vapor Recovery or CAA SIP SIP approved (64 FR
comparable measures section requirement. 52434; 9/29/1999).
184(b)(2) CAA requirement.
------------------------------------------------------------------------
The requirements of section 110(a)(2), however, are statewide
requirements that are not linked to the 8-hour ozone nonattainment
status of the Southern NH area. Therefore, EPA concludes that these
infrastructure SIP elements are not applicable requirements for
purposes of review of the state's 8-hour ozone redesignation request.
Nevertheless, in a submittal dated December 14, 2007, New Hampshire
confirmed that the state meets the section 110 requirements for the
1997 8-hour ozone standard. EPA approved the New Hampshire 110(a)(2)
SIP submittal on July 8, 2011, at 76 FR 40248, for the following
elements: 110(a)(2)(A), (B), (C), (D)(ii), (E), (F), (G), (H), (J),
(K), (L), and (M).
b. Part D SIP Requirements
EPA has reviewed the New Hampshire SIP for the Southern NH area
with respect to SIP requirements applicable for purposes of
redesignation under part D of the CAA for both the 1-hour ozone NAAQS
and the 1997 8-hour ozone NAAQS. EPA believes that the New Hampshire
SIP for the Southern NH area contains approved SIP measures that meet
the part D requirements applicable for purposes of redesignation. EPA
has approved most of the required Part D elements. EPA plans to take
final action on revisions to New Hampshire's vehicle I/M program,\1\
and certain RACT rules prior to, or in conjunction with, final action
on the Southern NH redesignation request. In addition EPA is proposing
to approve the 2008 comprehensive emissions inventory, discussed in
section IV.D.2.a. of this rulemaking. Upon final approval of New
Hampshire's I/M program revisions, RACT rules, and the 2008
comprehensive emissions inventory, the Southern NH area will meet all
of the requirements applicable to the area under part D for purposes of
redesignation.
---------------------------------------------------------------------------
\1\ The on-road mobile source emissions estimates found in the
SNH redesignation request includes emissions reductions achieved as
a result of the implementation of the revised New Hampshire motor
vehicle I/M program; thus New Hampshire's revised I/M program should
be approved into the SIP prior to, or in conjunction with, final
action on the SNH redesignation request.
---------------------------------------------------------------------------
EPA has determined that, if EPA finalizes the approval of New
Hampshire's I/M program, discussed below, requirements for RACT, and
the 2008 comprehensive emissions inventory, discussed in section
VII.D.2.a. of this rulemaking, the New Hampshire SIP will meet the SIP
requirements applicable for purposes of redesignation under part D of
the CAA for the Southern NH area. Subpart 1 of part D, found in
sections 172-176 of the CAA, sets forth the basic nonattainment
requirements applicable to all nonattainment areas. Subpart 2 of part
D, which includes section 182 of the CAA, establishes additional
specific requirements depending on the area's nonattainment
classification.
The applicable subpart 1 requirements are contained in sections
172(c)(1)-(9) and in section 176. The applicable subpart 2 requirements
are contained in sections 182(a) and (b) (marginal and moderate
nonattainment area requirements).
Subpart 1 Section 172 Requirements
For purposes of evaluating this redesignation request, the
applicable section 172 SIP requirements for the Southern NH area are
contained in sections 172(c)(1)-(9). A thorough discussion of the
requirements contained in section 172 can be found in the General
Preamble for Implementation of Title I (57 FR 13498, April 16, 1992).
Section 172(c)(1) requires the plans for all nonattainment areas to
provide for the implementation of all RACM as expeditiously as
practicable and to provide for attainment for the national primary
ambient air quality standards. EPA interprets this requirement to
impose a duty on states containing nonattainment areas to consider all
available control measures and to adopt and implement such measures as
are reasonably available for implementation in each area as components
of the area's attainment demonstration. Because attainment has been
reached in the Southern NH area, no additional measures are needed to
provide for attainment and section 172(c)(1) requirements are no longer
considered to be applicable as long as the area continues to attain the
standard until redesignation. See 40 CFR 51.918.
The RFP requirement under section 172(c)(2) is defined as progress
that must be made toward attainment. This requirement is not relevant
for purposes of redesignation because the Southern NH area has met the
1997 8-hour ozone NAAQS (see General Preamble, 57 FR 13564, April 16,
1992). See also 40 CFR 51.918. In addition, because the Southern NH
area has attained the ozone NAAQS and is no longer subject to an RFP
requirement, the section 172(c)(9) contingency measures are not
applicable for purposes of redesignation. Id.
Section 172(c)(3) requires submission and approval of a
comprehensive, accurate and current inventory of actual emissions. This
requirement was superseded by the inventory requirement in section
182(a)(1) discussed below.
[[Page 65159]]
Section 172(c)(4) requires the identification and quantification of
allowable emissions for major new and modified stationary sources in an
area, and section 172(c)(5) requires source permits for the
construction and operation of new and modified major stationary sources
anywhere in the nonattainment area.
New Hampshire has a fully approved NSR program (77 FR 5700,
February 6, 2012). Even if New Hampshire did not have a fully approved
NSR program, EPA has interpreted the section 184 Ozone Transport Region
(OTR) requirements, including NSR, as not being applicable for purposes
of redesignation. The rationale for this is based on two factors.
First, the requirement to submit SIP revisions for the section 184
requirements continues to apply to areas in the OTR after redesignation
to attainment. Therefore, the State remains obligated to have New
Source Review even after redesignation. Second, the section 184 control
measures are region-wide requirements and do not apply to the area by
virtue of its designation and classification. See 61 FR 53174, 53175-
53176 (October 10, 1996) and 62 FR 24826, 24830-32 (May 7, 1997). Thus,
EPA proposes to find that the Southern NH area has satisfied all 8-hour
ozone standard requirements applicable for purposes of section
107(d)(3)(E) under Part D of the CAA.
Section 172(c)(6) requires the SIP to contain control measures
necessary to provide for attainment of the standard. Because attainment
has been reached, no additional measures are needed to provide for
attainment.
Section 172(c)(7) requires the SIP to meet the applicable
provisions of section 110(a)(2). As noted above, we believe the New
Hampshire SIP meets the requirements of section 110(a)(2) for purposes
of redesignation.
Subpart 1, Section 176 Conformity Requirements
Section 176(c) of the CAA requires states to establish criteria and
procedures to ensure that Federally-supported or funded activities,
including highway projects, conform to the air quality planning goals
in the applicable SIPs. The requirement to determine conformity applies
to transportation plans, programs and projects developed, funded or
approved under title 23 of the U.S. Code and the Federal Transit Act
(transportation conformity) as well as to all other Federally-supported
or funded projects (general conformity). State conformity revisions
must be consistent with Federal conformity regulations relating to
consultation, enforcement, and enforceability, which EPA promulgated
pursuant to CAA requirements.
EPA interprets the conformity SIP requirements as not applying for
purposes of evaluating the redesignation request under section 107(d)
for two reasons. First, the requirement to submit SIP revisions to
comply with the conformity provisions of the CAA continues to apply to
areas after redesignation to attainment, since such areas would be
subject to a section 175A maintenance plan. Second, EPA's Federal
conformity rules require the performance of conformity analyses in the
absence of Federally-approved state rules. Therefore, because areas are
subject to the conformity requirements regardless of whether they are
redesignated to attainment and, because they must implement conformity
under Federal rules if state rules are not yet approved, it is
reasonable to view these requirements as not applying for purposes of
evaluating a redesignation request. See Wall v. EPA, 265 F.3d 426 (6th
Cir. 2001), upholding this interpretation. See also 60 FR 62748, 62749-
62750 (December 7, 1995) (Tampa, Florida).
EPA approved New Hampshire's Env-A 1500 general conformity SIP on
August 16, 1999 (64 FR 44417). New Hampshire submitted a revised Env-A
1500 Transportation Conformity SIP on December 9, 2011. New Hampshire
has submitted onroad MVEBs for the Southern NH area of 17.8 tons per
summer weekday (tpswd) VOC and 37.2 tpswd NOX for the year
2008, and 9.2 tpswd VOC and 11.8 tpswd NOX for the year
2022.
The area must use the MVEBs from the maintenance plan in any
conformity determination that is effective on or after the effective
date of the maintenance plan approval. MVEBs are discussed further in
section V.
Subpart 2 Section 182(a) and (b) Requirements
Comprehensive Emissions Inventory. Section 182(a)(1) requires the
submission of a comprehensive emissions inventory. New Hampshire
submitted both a 2002 comprehensive emissions inventory to EPA on June
7, 2007 and a 2008 emissions inventory with its redesignated request.
As discussed below in section VII, EPA is proposing to approve the 2008
emissions inventory as meeting the section 182(a)(1) comprehensive
emissions inventory requirement.
Emissions Statements. EPA approved New Hampshire's emission
statement SIP, as required by section 182(a)(3)(B), on March 10, 1998
(63 FR 11600).
Reasonable Further Progress and Attainment Demonstration. For the
reasons set forth earlier in this notice, because the Southern NH area
has attained the 1997 8-hour ozone NAAQS, the requirements of section
182(b)(1) do not apply.
VOC and NOX RACT Requirements. Section 182(b)(2) requires states
with moderate nonattainment areas to adopt RACT under section 172(c)(1)
with respect to each of the following: (1) All sources covered by a
Control Technology Guideline (CTG) document issued between November 15,
1990, and the date of attainment; (2) all sources covered by a CTG
issued prior to November 15, 1990; and, (3) all other major non-CTG
stationary sources. In addition, Section 182(f) establishes
NOX requirements for ozone nonattainment areas. As required
under the 1-hour ozone standard, New Hampshire submitted, and EPA
approved, NOX and VOC RACT regulations into the New
Hampshire SIP. See 62 FR 17092, April 9, 1997; 63 FR 11600, March 10,
1998; and 67 FR 48036, July 23, 2002.
In addition, under the 1997 8-hour ozone standard, moderate and
above ozone nonattainment areas, and areas in the OTR, were required to
submit RACT SIPs. As noted in the EPA's Phase 2 ozone implementation
rule,\2\ the RACT submittal for the 1997 8-hour ozone standard was due
from New Hampshire on September 16, 2006. See 40 CFR 51.916(b)(2). On
January 28, 2008, New Hampshire submitted a SIP revision to EPA
consisting of a certification that it met RACT for purposes of the 1997
8-hour ozone standard. EPA plans to take final action on New
Hampshire's RACT certification, prior to, or in conjunction with, final
action on the Southern NH redesignation request.
---------------------------------------------------------------------------
\2\ See Final Rule to Implement the 8-Hour Ozone National
Ambient Air Quality Standard--Phase 2 (the Phase 2 Rule) (70 FR
71612; November 29, 2005).
---------------------------------------------------------------------------
Furthermore, subsequent to the RACT submittal due date for the 1997
8-hour ozone standard, EPA issued additional CTGs, covering various VOC
source categories. Specifically, on October 5, 2006, EPA issued four
new CTGs (71 FR 58745). Then, on October 9, 2007, EPA issued three more
CTGs (72 FR 57215). Lastly, on October 7, 2008, EPA issued an
additional four CTGs (73 FR 58841). The State of New Hampshire
submitted its SIP revision for all eleven 2006, 2007, and 2008 CTGs in
one SIP revision package on July 26, 2011. EPA plans to take final
action on New Hampshire's submittal for the 2006, 2007, and 2008 CTGs,
prior to, or in
[[Page 65160]]
conjunction with, final action on the Southern NH redesignation
request.
Stage II Vapor Recovery. Section 182(b)(3) requires states to
submit Stage II rules no later than November 15, 1992. New Hampshire
became subject to the Stage II vapor recovery requirements under the 1-
hour ozone standard. EPA approved New Hampshire's Stage II rule on
December 7, 1998 (63 FR 67405). In addition, since New Hampshire is in
the OTR, the State must meet the CAA Section 184(b)(2) Stage II or
comparable measures requirement. EPA approved New Hampshire's Stage II
or comparable measures SIP on September 9, 1999 (64 FR 52434).
On May 16, 2012 (77 FR 28772), EPA issued a final rulemaking
determining that onboard refueling vapor recovery technology is in
widespread use across the motor vehicle fleet for purposes of
controlling motor vehicle refueling emissions. The May 16, 2012
rulemaking waives the requirement for states to implement Stage II
vapor recovery systems at gasoline dispensing facilities in
nonattainment areas classified as Serious and above for the ozone
NAAQS. The May 16, 2012 rulemaking allows a state to remove its Stage
II vapor recovery program as of a date certain, if the state revises
its SIP to satisfy the requirements of CAA sections 110(l), 184(b)(2),
and 193, as applicable. In addition, on August 7, 2012, EPA issued
guidance, ``Guidance on Removing Stage II Gasoline Vapor Control
Programs from State Implementation Plans and Assessing Comparable
Measures,'' in order to assist states with addressing the SIP CAA
requirements if a state moves forward with the phase out of its Stage
II vapor recovery program. New Hampshire has recently revised its State
regulation to eliminate the requirement for gasoline dispensing
facilities to implement Stage II vapor recovery systems as of January
1, 2012. The State has not yet submitted the revised rule to EPA as a
SIP revision. NH DES is currently developing a SIP revision to address
the phase out of the State's Stage II vapor recovery program in
accordance with EPA's May 16, 2012 rulemaking and August 7, 2012
guidance. The Stage II phase out is a separate action from this
redesignation request. The maintenance plan included in New Hampshire's
redesignation request is, however, consistent with the planned Stage II
phase out SIP revision. Specifically, emission estimates for 2022 do
not include any emission reductions from Stage II vapor recovery
controls.
Vehicle Inspection and Maintenance (I/M). EPA's final I/M
regulations in 40 CFR part 85 required the states to submit a fully
adopted I/M program by November 15, 1993. New Hampshire became subject
to the motor vehicle I/M requirements under the 1-hour ozone standard.
EPA approved New Hampshire's enhanced I/M program on January 10, 2001
(66 FR 1868). On April 5, 2001, EPA issued ``Amendments to Vehicle
Inspection and Maintenance Program Requirements Incorporating the On-
Board Diagnostics Check'' (65 FR 18156). The revised I/M rule requires
that electronic checks of the On-Board Diagnostics (OBD2) system be
conducted as part of states' motor vehicle I/M programs. Subsequently,
New Hampshire revised its I/M program regulations to include OBD2
testing of 1996 and newer motor vehicles. New Hampshire submitted a SIP
revision, for its OBD2 I/M program, to EPA on November 17, 2011. EPA
has not yet taken final action on the revised I/M SIP but plans to do
so prior to the final approval of this redesignation request.
Thus, as discussed above, with approval of the comprehensive
emissions inventory, certain RACT rules, and New Hampshire's revised I/
M program, the Southern NH area will satisfy the requirements
applicable for purposes of redesignation under section 110 and part D
of the CAA.
C. Is the air quality improvement in the Southern NH area due to
permanent and enforceable reductions in emissions?
EPA proposes to find that the state has demonstrated that the
observed air quality improvement in the Southern NH area is due to
permanent and enforceable reductions in emissions resulting from
implementation of the SIP, Federal measures, and other state-adopted
measures, listed in Table 3 above. As shown in the state's submittal
and supported by EPA rulemaking (see 73 FR 14387, March 18, 2008 and 76
FR 14805, March 18, 2011) the area first came into attainment of the
1997 8-hour ozone standard based on ozone data for 2002-2004. The area
has remained in attainment and the air quality has improved in the
area. The area is now attainment for the more stringent 2008 8-hour
ozone NAAQS (77 FR 30088, May 21, 2012). Attainment is the direct
result of permanent and enforceable emission reductions and not
favorable meteorology or economic downturn.
New Hampshire's redesignation request documents a substantial
emission reduction in ozone precursor emissions both in upwind states
and within New Hampshire. For example, the state's request notes that
in light of the OTC's NOX budget program and the EPA's
NOX SIP call, NOX emissions from budget sources
declined by 62% between 2000 and 2008. Additionally, the emission
inventories for New Hampshire show that between 2002 (one of the ozone
seasons on which the area's nonattainment designation was based) and
2008, an attainment year, in-state NOX and VOC emissions
were reduced by approximately 68 tons per day and 51 tons per day,
respectively. The following summary from the New Hampshire
redesignation request (see pages 23-24) gives one example of the
magnitude of emission reductions the area has experienced over the past
two decades.
The observed improvement in air quality would not have occurred
without the concerted efforts of EPA and the Ozone Transport
Commission (OTC) to reduce the emitted amounts of both pollutants
across the region. In September 1994, the OTC member states \3\
adopted a memorandum of understanding to achieve regional
NOX emission reductions. Phase I began with the
installation of RACT, followed in Phases II and III by the
development and implementation of regulations to achieve further
reductions in ozone-season NOX emissions by 1999 and
2003, respectively. The second and third phases were modeled on the
cap-and-trade principle and resulted in the creation of the OTC
NOX Budget Program.\4\ This program established a de
facto NOX emission rate of 0.15 lbs/MMBtu for
participating electric generating units and large industrial
boilers. Rules for New Hampshire's participation in the OTC
NOX Budget Program are codified at Chapter Env-A 3200. In
the midst of these efforts, in 1998, EPA issued a final rule aimed
at reducing the regional transport of NOX and ozone. This
rule, commonly known as the NOX SIP Call, required 22
eastern states and the District of Columbia (not including New
Hampshire) to reduce ozone-season NOX emissions.
Compliance with the NOX SIP call began on May 1, 2003,
for the participating OTC
[[Page 65161]]
states \5\ and on May 31, 2004, for states outside the Ozone
Transport Region. Although the NOX SIP Call provided
states with the flexibility to design their own programs to meet the
NOX reduction requirements, all affected states chose to
participate in a regional cap-and-trade program.\6\ The
NOX SIP Call and the NOX Budget Trading
Program (NBP) have had a major effect on reducing regional transport
of this pollutant. EPA data show that total ozone-season
NOX emissions from all NBP sources fell from 1,256,000
tons in 2000 to 481,000 tons in 2008.\7\ (That is a 61% reduction in
NOX.)
\3\ The OTC includes the states of Connecticut, Delaware, Maine,
Maryland, Massachusetts, New Hampshire, New Jersey, New York,
Pennsylvania, Rhode Island, Vermont, and Virginia, and the District
of Columbia.
\4\ The NOX Budget Program involves an allowance
trading system which harnesses free market forces to reduce
pollution, similar to the U.S. EPA's Acid Rain Program. Under this
program, budget sources were allocated allowances by their state
governments. Each allowance permits a source to emit one ton of
NOX during the control period (May through September) for
which it is allocated or any later control period. Allowances may be
bought, sold, or banked. Any person may acquire allowances and
participate in the trading system. Each budget source must comply
with the program by demonstrating at the end of each control period
that actual emissions do not exceed the amount of allowances held
for that period. However, regardless of the number of allowances a
source holds, it cannot emit at levels that would violate other
federal or state limits (e.g., NSPS, Title IV, NOX RACT).
\5\ The NOX SIP Call superseded Phase III of the OTC
NOX Budget Program. Maine, New Hampshire, and Vermont
were not participating states.
\6\ The NOX Budget Trading Program established under
the NOX SIP Call is separate and distinct from the OTC
NOX Budget Program.
\7\ USEPA, The NOX Budget Trading Program: 2008
Highlights, December 2008; available at http://www.epa.gov/airmarkt/progress/NBP_4.html.
The New Hampshire submittal contains a discussion of meteorology as
it affects ozone levels (see Attachment A). This analysis shows that
the downward trend in New Hampshire's ozone levels is a direct result
of emission reductions and not favorable meteorology. EPA believes that
New Hampshire has adequately demonstrated that the air quality
improvement in the Southern NH area is due to permanent and enforceable
reductions in emissions resulting from implementation of the SIP and
applicable federal air pollution control regulations and other
permanent and enforceable reductions, and not other factors such as
favorable meteorology or economic downturn.
The recent D.C. Circuit decision on the Cross-State Air Pollution
Rule (Transport Rule), EME Homer Generation LP v. EPA, No. 11-1302
(D.C. Cir., August 21, 2012) \8\ does not disturb EPA's determination
that it is appropriate to move forward with this redesignation. The air
quality modeling analysis conducted for the Transport Rule demonstrates
that the Southern NH Area would be able to attain the 1997 8-hour ozone
NAAQS even in the absence of either the Clean Air Interstate Rule
(CAIR) or the Transport Rule. See ``Air Quality Modeling Final Rule
Technical Support Document,'' App. B, B-18, B-19. Nothing in the D.C.
Circuit's August 2012 decision disturbs or calls into question that
conclusion or the validity of the air quality analysis on which it is
based. More importantly, the Transport Rule is not relevant to this
redesignation, since the Transport Rule only addressed emissions in
2012 and beyond. The Southern NH area has been in attainment since 2004
(see 73 FR 14387, March 18, 2008), well before the Transport rule and
also before CAIR (see 70 FR 25162, May 12, 2005) was an enforceable
control measure. As such, the status of CAIR is irrelevant and does not
impact our conclusion that the Southern NH area can be redesignated.
Moreover, in its August 2012 decision, the Court also ordered EPA to
continue implementing CAIR. See EME Homer Generation LP v. EPA, slip
op. at 60. In sum, neither the current status of CAIR nor the current
status of the Transport Rule affects any of the criteria for proposed
approval of this redesignation request for the Southern NH area.
---------------------------------------------------------------------------
\8\ The court's judgment is not final, as of Sept. 30, 2012, as
the mandate has not yet been issued.
---------------------------------------------------------------------------
D. Does the Southern NH area have a fully approved maintenance plan
pursuant to Section 175A of the CAA?
In conjunction with its request to redesignate the Southern NH
nonattainment area to attainment status, New Hampshire submitted a SIP
revision to provide for the maintenance of the 1997 8-hour ozone NAAQS
in the Southern NH area until 2022.
1. Maintenance Plan Requirements
Section 175A of the CAA sets forth the elements of a maintenance
plan for areas seeking redesignation from nonattainment to attainment.
Under section 175A, the plan must demonstrate continued attainment of
the applicable NAAQS for at least ten years after the Administrator
approves a redesignation to attainment. Eight years after the
redesignation, the State must submit a revised maintenance plan which
demonstrates that attainment will continue to be maintained for the ten
years following the initial ten-year period. To address the possibility
of future NAAQS violations, the maintenance plan must contain such
contingency measures, with a schedule for implementation as EPA deems
necessary to assure prompt correction of any future 8-hour ozone
violations. Section 175A of the CAA sets forth the elements of a
maintenance plan for areas seeking redesignation from nonattainment to
attainment. The Calcagni memorandum dated September 4, 1992, provides
additional guidance on the content of a maintenance plan. An ozone
maintenance plan should address the following provisions:
(a) An attainment emissions inventory for both VOC and
NOX;
(b) A maintenance demonstration showing maintenance for the ten
years of the maintenance period;
(c) A commitment to maintain the existing monitoring network;
(d) Factors and procedures to be used for verification of continued
attainment; and
(e) Contingency measures as to correct future violations of the
NAAQS.
2. EPA's Analysis of the Southern NH Maintenance Plan
a. Attainment Emissions Inventory
An attainment inventory includes the emissions during the time
period associated with the monitoring data showing attainment. An
attainment inventory year of 2008 was used for the Southern NH area
since it is a year for which monitors within the area showed
attainment, and is also a year for which New Hampshire prepared a
comprehensive inventory pursuant to the requirements of 40 CFR Part 51,
Subpart A. The 2008 inventory is consistent with EPA guidance and is
based on actual ``typical summer day'' emissions of VOC and
NOX during 2008.
New Hampshire prepared comprehensive VOC and NOX
emissions inventories for the Southern NH area, including point, area,
mobile on-road, and mobile non-road sources for their 2008 attainment
inventory. To develop the NOX and VOC base-year emission
inventories, New Hampshire used the following approaches and sources of
data:
Point source emissions--New Hampshire requires owners and operators
of larger facilities to submit annual production figures and emission
calculations each year. Data for the point source emissions inventory
was collected by this and several other means, including direct
reporting by facilities to the NH DES pursuant to the state's emission
statement requirements, permit requirements, and from data collected
during site visits by field engineers. Quality assurance checks were
performed on the source emission estimates, and comparisons made to
prior year estimates.
Area source emissions--Area source emissions are generally
estimated by multiplying an emission factor by some known indicator or
collective activity for each area source category at the county level.
New Hampshire estimates emissions from area sources using primarily the
methodologies described within the EPA's Emissions Inventory
Improvement Program (EIIP). Throughput estimates are derived from
county-level activity data, by apportioning national and statewide
activity data to counties, from census numbers, and from county
employee numbers. County employee numbers are based upon North American
Industry Classification System (NAICS) codes to establish that those
numbers are specific to the industry covered.
[[Page 65162]]
On-road mobile sources--New Hampshire used EPA's Motor Vehicle
Emissions Simulator (MOVES) to estimate highway vehicle emissions for
2008. Estimates of vehicle miles traveled (VMT) by vehicle type and
roadway type were obtained from the relevant Metropolitan Planning
Organization within the Southern NH area.
Nonroad mobile emissions--The 2008 emissions for the majority of
nonroad emission source categories were estimated using the EPA NONROAD
2008a model. The NONROAD model estimates emissions for diesel,
gasoline, liquefied petroleum gasoline, and compressed natural gas-
fueled nonroad equipment types and includes growth factors. The NONROAD
model does not estimate emissions from aircraft, locomotives, or
commercial marine vessels (CMVs). For 2008 locomotive and commercial
marine emissions, New Hampshire used standard EPA recommended emission
estimation methodologies. For 2008 aircraft and airport ground service
equipment, New Hampshire used the Federal Aviation's Agency's Emissions
and Dispersion Modeling System (EDMS). The 2008 attainment year VOC and
NOX emissions for the Southern NH area are summarized along
with the 2012 and 2022 projected emissions for this area in Table 4.
The downward emissions trend demonstrates that the NAAQS should be
maintained for this area. EPA has concluded that New Hampshire has
adequately derived and documented the 2008 attainment year and
projected year VOC and NOX emissions for this area.
New Hampshire's 2008 inventory VOC and NOX emissions was
developed on a tons per summer weekday basis, and is summarized in
Table 4 below.
b. Maintenance Demonstration
New Hampshire's March 2, 2012 SIP submittal, as amended September
21, 2012, includes a 10-year maintenance plan for the Southern NH area
as required by section 175A of the Act. This plan demonstrates
maintenance by showing that future emissions of VOC and NOX
remain at or below attainment year emission levels. A maintenance
demonstration need not be based on modeling. See Wall v. EPA, 265 F.3d
426 (6th Cir. 2001), Sierra Club v. EPA, 375 F. 3d 537 (7th Cir. 2004).
See also 66 FR 53094, 53099-53100 (October 19, 2001), 68 FR 25430-25432
(May 12, 2003).
New Hampshire used 2008 as the base year, 2012 as the current year,
and 2022 as the last year of the maintenance plan. (In addition, per 40
CFR Part 93, a MVEB must be established for the last year of the
maintenance plan. MVEBs are discussed in Section V below.) Table 4
shows the emissions inventories for 2008, 2012, and 2022, from New
Hampshire's September 21, 2012 amended submittal for the Southern NH
area. The emissions inventory shows a downward trend in precursor
emissions from 2008 through 2012, and continuing on until 2022. By
2022, VOC emissions are expected to decrease by 13 percent and
NOX emissions to decrease by 48 percent. Analysis of the
anticipated trend in emissions is a requirement of a maintenance plan.
New Hampshire's submittal provides such documentation and demonstrates
that a significant downward trend in emissions will occur. New
Hampshire has fulfilled this maintenance plan requirement.
Table 4--Attainment (2008), Current (2012) and Maintenance (2022) Inventories for the Southern NH Nonattainment
Area
[Pounds per summer week day]
----------------------------------------------------------------------------------------------------------------
VOC NOX
Source category -----------------------------------------------------------------------------
2008 2012 2022 2008 2012 2022
----------------------------------------------------------------------------------------------------------------
Point............................. 5,762 5,288 6,605 24,289 21,665 22,742
Area.............................. 55,871 57,885 70,195 6,528 6,243 6,432
Onroad............................ 35,666 28,470 18,410 74,352 51,204 23,558
Nonroad........................... 33,512 26,863 19,152 31,364 26,121 17,670
-----------------------------------------------------------------------------
Total......................... 130,811 118,506 114,362 136,533 105,223 70,402
----------------------------------------------------------------------------------------------------------------
Change from 2008.................. ........... -12,305 -16,449 ........... -31,310 -66,131
----------------------------------------------------------------------------------------------------------------
c. Monitoring Network
There are currently 4 monitors measuring ozone in the Southern NH
area. In the maintenance plan, the State of New Hampshire has committed
to continue to monitor ozone levels according to an EPA-approved
monitoring plan. New Hampshire remains obligated to continue to quality
assure monitoring data in accordance with 40 CFR part 58 and enter all
data into the AQS in accordance with federal guidelines. New Hampshire
has therefore addressed the requirement for continued ozone monitoring
in this area.
d. Verification of Continued Attainment
The state has the legal authority to enforce and implement the
requirements of the ozone maintenance plan. This includes the authority
to adopt, implement, and enforce any subsequent emission control
contingency measures determined to be necessary to correct future ozone
attainment problems. To implement the ozone maintenance plan, the state
will continue to monitor ozone levels in the area. New Hampshire has
also committed to track the progress of the maintenance demonstration
by periodically updating their emission inventory. New Hampshire has
committed to do this annually. The update will be based, in part, on
the annual update of the National Emissions Inventory (NEI), and will
indicate new source growth and other changes from the attainment
inventory, including any changes in vehicle miles traveled or in
traffic patterns, as well as any changes in MOVES or its successor.
e. The Maintenance Plan's Contingency Measures
The contingency plan provisions are designed to promptly correct a
violation of the NAAQS that might occur after redesignation. Section
175A of the Act requires that a maintenance plan include such
contingency measures as EPA deems necessary to assure that the state
will promptly correct a violation of the NAAQS that occurs after
redesignation. The maintenance plan should identify the contingency
measures to be adopted, a schedule and procedure for adoption and
implementation, and a time limit for action by the state. The state
should also
[[Page 65163]]
identify specific indicators to be used to determine when the
contingency measures need to be implemented. The maintenance plan must
include a requirement that the state will implement all measures with
respect to control of the pollutant that were contained in the SIP
before redesignation of the area to attainment. See Section 175A(d).
As required by section 175A of the CAA, the NH DES has committed to
the following procedure. At the conclusion of each ozone season, the NH
DES will evaluate whether the design value for the Southern NH area is
above or below the 1997 8-hour ozone standard. If the design value is
above the standard, the NH DES will evaluate the potential causes of
this design value increase. The NH DES will examine whether this
increase is due to an increase in local in-state emissions or an
increase in upwind out-of-state emissions. If an increase in in-state
emissions is determined to be a contributing factor to the design value
increase, New Hampshire will evaluate the projected in-state emissions
for the Southern NH area for the ozone season in the following year. If
in-state emissions are not expected to satisfactorily decrease in the
following ozone season, in order to mitigate the violation, New
Hampshire will implement one or more of the contingency measures listed
in this section, or substitute a new VOC or NOx control measure(s) to
achieve additional in-state emissions reductions.
As stated in New Hampshire's redesignation submittal (see page 42):
The contingency measures(s) will be selected by the Governor or
the Governor's designee within 6 months of the end of the ozone
season for which contingency measures have been determined needed.
New Hampshire will then initiate a course of action to implement
enforceable control measure(s) to rectify the problem. New
rulemaking, when required, can typically be adopted and implemented
within a 12-month timeframe. NHDES will update the maintenance plan
as necessary and develop and implement required regulations as soon
as practicable within the guidelines established in the New
Hampshire Administrative Procedures Act, but no later than 18 months
after selection of the appropriate measure.
Possible contingency measures include: Additional controls for NOx
at ICI Boilers (at Major Point Sources); additional controls on
Emulsified Asphalt Paving operations for VOC; and additional controls
on Consumer Products to lower VOC emissions (details can be found in
the New Hampshire request see pages 41 to 45). In addition, NH DES is
evaluating other potential NOx and VOC control measures that could be
applied, if necessary, to further reduce ozone levels in the
maintenance area. These control measures are listed in Table 6.4 of the
New Hampshire request, along with the previously mentioned contingency
measures for boilers, asphalt paving, and consumer products.
For the foregoing reasons, EPA believes that the Southern NH area
maintenance plan adequately addresses the five basic components of a
maintenance plan: Attainment inventory; maintenance demonstration;
monitoring network; verification of continued attainment; and a
contingency plan. Therefore, EPA is proposing to approve the
maintenance plan SIP revision submitted by New Hampshire for the
Southern NH area as meeting the requirements of CAA section 175A.
V. How are MVEBs developed and what is an adequacy determination?
Under the CAA, states are required to submit, at various times,
control strategy SIPs and maintenance plans in ozone areas. These
control strategy SIPs (e.g., reasonable further progress SIPs and
attainment demonstration SIPs) and maintenance plans create MVEBs based
on on-road mobile source emissions for criteria pollutants and/or their
precursors to address pollution from cars and trucks. Per 40 CFR part
93, a MVEB is established for the last year of the maintenance plan.
The MVEB is the portion of the total allowable emissions that is
allocated to highway and transit vehicle use that, together with
emissions from other sources in the area, will provide for attainment
or maintenance. The MVEB serves as a ceiling on emissions from an
area's planned transportation system. The MVEB concept is further
explained in the preamble to the November 24, 1993, transportation
conformity rule (58 FR 62188). The preamble also describes how to
establish the MVEB in the SIP and revise the MVEB.
Under section 176(c) of the CAA, new transportation projects, such
as the construction of new highways, must ``conform'' to (i.e., be
consistent with) the part of the state's air quality plan that
addresses pollution from cars and trucks. ``Conformity'' to the SIP
means that transportation activities will not cause new air quality
violations, worsen existing violations, or delay timely attainment of
the national ambient air quality standards or an interim milestone. If
a transportation plan does not ``conform,'' most new projects that
would expand the capacity of roadways cannot go forward. Regulations at
40 CFR part 93 set forth EPA policy, criteria, and procedures for
demonstrating and assuring conformity of such transportation activities
to a SIP.
When reviewing submitted ``control strategy'' SIPs or maintenance
plans containing MVEBs, EPA must affirmatively find the MVEB budget
contained therein ``adequate'' for use in determining transportation
conformity. Once EPA affirmatively finds the submitted MVEB is adequate
for transportation conformity purposes, that MVEB can be used by state
and federal agencies in determining whether proposed transportation
projects ``conform'' to the SIP as required by section 176(c) of the
Act. EPA's substantive criteria for determining ``adequacy'' of an MVEB
are set out in 40 CFR 93.118(e)(4).
VI. What is the status of EPA's adequacy determination for the area's
MVEBs for 2022?
The Southern NH area's attainment plan and 10-year maintenance plan
submission contains new VOC and NOX MVEBs for the years 2008
and 2022. The availability of the SIP submission with these 2008 and
2022 MVEBs was announced for public comment on EPA's adequacy web page
on March 5, 2012, at: www.epa.gov/otaq/stateresources/transpconfor/adequacy.htm. The EPA public comment period on adequacy of the 2008 and
2022 MVEBs for the Southern NH area closed on April 4, 2012. EPA did
not receive any adverse comments. EPA New England sent a letter to the
New Hampshire Department of Environmental Services on April 25, 2012,
stating that the 2008 and 2022 motor vehicle emissions budgets in the
March 2, 2012 SIP submittal are adequate.
On September 21, 2012, the New Hampshire Department of
Environmental Services submitted minor amendments to the SIP revision
entitled ``Request for Redesignating the Boston-Manchester-Portsmouth
(SE), NH 8-Hour (1997 Standard) Ozone Nonattainment Area.'' One of
these minor changes was running the MOVES2010b model with Stage II
vapor controls turned off for 2012 and 2022 to generate new 2012 and
2022 on-road mobile VOC emissions.\9\ This reflects the fact that New
Hampshire's Stage II
[[Page 65164]]
vapor recovery program will no longer be providing emissions reductions
as of January 1, 2012. See section IV of this notice. Turning off Stage
II vapor controls in future years increased the 2022 onroad motor
vehicle VOC emissions by 581 pounds per summer weekday. This increase
in onroad VOC emissions increased the 2022 VOC MVEB from 8.9 tpswd
(previously determined adequate) to 9.2 tpswd.
---------------------------------------------------------------------------
\9\ It should be noted that New Hampshire's December 2011
proposed redesignation request that was subject to public comment
also included modeling runs with Stage II vapor controls turned off
for 2012 and 2022. However, the final redesignation request
submitted on March 2, 2012 did not include such provisions. This was
corrected in the supplement submitted on September 21, 2012.
---------------------------------------------------------------------------
The NH DES utilized the MOVES2010 model to calculate on-road
emissions of VOC and NOX for the Southern NH 8-hour
nonattainment area. New Hampshire is establishing motor vehicle
emissions budgets for the last year of the Southern NH area's 8-hour
ozone maintenance plan (year 2022) at 9.2 tpswd of VOC and 11.8 tpswd
of NOX. These on-road mobile source emissions when added to
emissions from all other inventory sources (stationary, other mobile
(i.e., non-road, marine vessels, airplanes, locomotives) and area
sources) result in year 2022 emissions inventories lower than the year
2008 attainment emissions inventory. New Hampshire is also establishing
2008 motor vehicle emissions budgets of 17.8 tpswd of VOC and 37.2
tpswd of NOX. As part of its redesignation request, NHDES
has requested that EPA withdraw the SIP-approved 2009 MVEBs prepared
using MOBILE6.2 and replace them with the submitted 2008 MVEBs prepared
using MOVES2010. The 2008 and 2022 adequate emissions budgets, once
approved by EPA, will continue to be used for future transportation
conformity determinations.
VII. Proposed Actions
EPA is proposing to approve (1) the redesignation of the Southern
New Hampshire 8-hour ozone nonattainment area from nonattainment to
attainment for the 1997 8-hour ozone NAAQS. EPA has evaluated the State
of New Hampshire's redesignation request and is proposing to approve it
as meeting the redesignation requirements in section 107(d)(3)(E) of
the CAA provided that EPA finalizes approvals of emissions inventories
under section 182(a)(1), certain RACT requirements, and New Hampshire's
Vehicle I/M SIP revision. The final approval of this redesignation
request would change the official designation for the Southern New
Hampshire ozone nonattainment area from nonattainment to attainment for
the 1997 8-hour ozone standard. EPA is also proposing to approve the
175A maintenance plan SIP revision for the Southern NH 8-hour area,
including the 2008 and 2022 MVEBs submitted by New Hampshire. EPA is
proposing to withdraw the SIP-approved 2009 MVEBs prepared using
MOBILE6.2 and replace them with the new 2008 MVEBs included in the
maintenance plan. In addition, in this notice EPA is proposing to
approve the 2008 comprehensive emissions inventory for the Southern NH
area under CAA section 182(a)(1). EPA is soliciting public comments on
the issues discussed in this document. These comments will be
considered before taking final action.
VIII. Statutory and Executive Order Reviews
Under the CAA, redesignation of an area to attainment and the
accompanying approval of a maintenance plan under section 107(d)(3)(E)
are actions that affect the status of a geographical area and do not
impose any additional regulatory requirements on sources beyond those
imposed by state law. A redesignation to attainment does not in and of
itself create any new requirements, but rather results in the
applicability of requirements contained in the CAA for areas that have
been redesignated to attainment. Moreover, the Administrator is
required to approve a SIP submission that complies with the provisions
of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40
CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to
approve state choices, provided that they meet the criteria of the CAA.
Accordingly, these actions do not impose additional requirements beyond
those imposed by state law and the CAA. For that reason, these actions:
Are not ``significant regulatory actions'' subject to
review by the Office of Management and Budget under Executive Order
12866 (58 FR 51735, October 4, 1993);
Do not impose an information collection burden under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);
Are certified as not having a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.);
Do not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4);
Do not have Federalism implications as specified in
Executive Order 13132 (64 FR 43255, August 10, 1999);
Are not an economically significant regulatory action
based on health or safety risks subject to Executive Order 13045 (62 FR
19885, April 23, 1997);
Are not a significant regulatory action subject to
Executive Order 13211 (66 FR 28355, May 22, 2001);
Are not subject to requirements of section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272
note) because application of those requirements would be inconsistent
with the CAA; and
Do not provide EPA with the discretionary authority to
address, as appropriate, disproportionate human health or environmental
effects, using practicable and legally permissible methods, under
Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as
specified by Executive Order 13175 (65 FR 67249, November 9, 2000),
because redesignation is an action that affects the status of a
geographical area and does not impose any new regulatory requirements
on tribes, impact any existing sources of air pollution on tribal
lands, nor impair the maintenance of ozone national ambient air quality
standards in tribal lands.
List of Subjects
40 CFR Part 52
Environmental protection, Air pollution control, Incorporation by
reference, Intergovernmental relations, Nitrogen dioxide, Ozone,
Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR Part 81
Environmental protection, Air pollution control, National parks,
Wilderness areas.
Authority: 42 U.S.C. 7401 et seq.
Dated: October 15, 2012.
H. Curtis Spalding,
Regional Administrator, EPA New England.
[FR Doc. 2012-26210 Filed 10-24-12; 8:45 am]
BILLING CODE 6560-50-P