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Daily Rules, Proposed Rules, and Notices of the Federal Government

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 nonattainmentarea 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: 1.www.regulations.gov:Follow the on-line instructions for submitting comments.

2.Email: arnold.anne@epa.gov

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 atwww.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 throughwww.regulations.govor email, information that you consider to be CBI or otherwise protected. Thewww.regulations.govWeb 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 throughwww.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 athttp://www.epa.gov/epahome/dockets.htm.

Docket:All documents in the electronic docket are listed in thewww.regulations.govindex. 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 inwww.regulations.govor 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 theFOR FURTHER INFORMATION CONTACTsection 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, emailBurkhart.Richard@epa.gov.

In addition to the publicly available docket materials available for inspection electronically in the Federal Docket Management System atwww.regulations.gov,and the hard copy available at the Regional Office, which are identified in theADDRESSESsection of thisFederal 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 for2022? 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'srequest 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. NOXand 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, inSouth 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 ofEPA'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 minimumcompleteness 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 Location AQS Site ID 4th high
  • 2007
  • 4th High
  • 2008
  • 4th High
  • 2009
  • Design value
  • (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 Location AQS Site ID 4th high
  • 2009
  • 4th High
  • 2010
  • 4th High
  • 2011
  • Design Value
  • (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 § 51.900(f), except as provided in § 51.905 (a)(1)(iii) of this section, and except as provided in paragraph (b) of § 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.

    • NOXrequirements under section 182(f) of the CAA.

    • Attainment demonstration or an alternative as provided under § 51.905(a)(1)(ii).

    • Contingency measures as provided under § 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 recentFederal Registernotice (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 duesubsequent 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. SeeSierra Clubv.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 NOXcontrol 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 Recovery federal rule Promulgated at 40 CFR part 86. Federal Motor Vehicle Control program federal rule Promulgated at 40 CFR part 86. Heavy Duty Diesel Engines (On-road) federal rule Promulgated at 40 CFR part 86. Federal Non-road Heavy Duty diesel engines federal rule Promulgated at 40 CFR part 89. Federal Non-road Gasoline Engines federal rule Promulgated at 40 CFR 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 Requirement SIP approved (66 FR 1868; 1/10/01). NOXRACT CAA SIP Requirement SIP approved (62 FR 17087; 4/9/97). VOC RACT pursuant to sections 182(a)(2)(A) and 182(b)(2)(B) of CAA CAA SIP Requirement SIPs approved (63 FR 67405; 12/17/98); (63 FR 11600; 3/10/98); (58 FR 4902; 1/19/93); (58 FR 29973; 5/25/93). VOC RACT pursuant to section 182(b)(2)(A) and (C) of CAA CAA SIP Requirement SIPs approved (67 FR 48034; 7/23/02); (65 FR 42290; 7/10/2000); (63 FR 11600; 3/10/98). Stage II Vapor Recovery CAA SIP Requirement SIP approved (63 FR 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 Requirement SIP approved (64 FR 52434; 9/29/99). New Source Review CAA SIP Requirement SIP approved (66 FR 39100; 7/27/01). Base Year Emissions Inventory CAA SIP Requirement SIP approved (62 FR 55521; 10/27/97). 15% VOC Reduction Plan CAA SIP Requirement SIP approved (63 FR 67405; 12/7/98). 9% rate of progress plan CAA SIP Requirement SIP approved (67 FR 18547; 4/16/02). Emissions Statements CAA SIP Requirement SIP approved (63 FR 11600; 3/10/98). Enhanced Monitoring (PAMS) CAA Requirement SIP approved (62 FR 55521; 10/27/97). OTC NOXMOU Phase II and III state initiative SIP approved (64 FR 29567; 6/2/99). Stage II Vapor Recovery or comparable measures section 184(b)(2) CAA requirement CAA SIP requirement SIP approved (64 FR 52434; 9/29/1999).

    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.

    1The 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 172Requirements

    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.

    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 176Conformity 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. SeeWallv.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 NOXfor the year 2008, and 9.2 tpswd VOC and 11.8 tpswd NOXfor 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 NO X 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 NOXrequirements for ozone nonattainment areas. As required under the 1-hour ozone standard, New Hampshire submitted, and EPA approved, NOXand 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.

    2See 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 inconjunction 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 NOXbudget program and the EPA's NOXSIP call, NOXemissions 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 NOXand 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 states3 adopted a memorandum of understanding to achieve regional NOXemission 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 NOXemissions 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 NOXBudget Program.4 This program established ade factoNOXemission rate of 0.15 lbs/MMBtu for participating electric generating units and large industrial boilers. Rules for New Hampshire's participation in the OTC NOXBudget 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 NOXand ozone. This rule, commonly known as the NOXSIP Call, required 22 eastern states and the District of Columbia (not including New Hampshire) to reduce ozone-season NOXemissi