Title 40—Protection of Environment--Volume 1
PART 51—REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF IMPLEMENTATION PLANS
§ 51.369   Improving repair effectiveness.
Effective repairs are the key to achieving program goals and the State shall take steps to ensure the capability exists in the repair industry to repair vehicles that fail I/M tests.
(a) Technical assistance. The oversight agency shall provide the repair industry with information and assistance related to vehicle inspection diagnosis and repair.
(1) The agency shall regularly inform repair facilities of changes in the inspection program, training course schedules, common problems being found with particular engine families, diagnostic tips and the like.
(2) The agency shall provide a hot line service to assist repair technicians with specific repair problems, answer technical questions that arise in the repair process, and answer questions related to the legal requirements of State and Federal law with regard to emission control device tampering, engine switching, or similar issues.
(b) Performance monitoring. (1) In enhanced I/M program areas, the oversight agency shall monitor the performance of individual motor vehicle repair facilities, and provide to the public at the time of initial failure, a summary of the performance of local repair facilities that have repaired vehicles for retest. Performance monitoring shall include statistics on the number of vehicles submitted for a retest after repair by the repair facility, the percentage passing on first retest, the percentage requiring more than one repair/retest trip before passing, and the percentage receiving a waiver. Programs may provide motorists with alternative statistics that convey similar information on the relative ability of repair facilities in providing effective and convenient repair, in light of the age and other characteristics of vehicles presented for repair at each facility.
(2) Programs shall provide feedback, including statistical and qualitative information to individual repair facilities on a regular basis (at least annually) regarding their success in repairing failed vehicles.
(3) A prerequisite for a retest shall be a completed repair form that indicates which repairs were performed, as well as any technician recommended repairs that were not performed, and identification of the facility that performed the repairs.
(c) Repair technician training. The State shall assess the availability of adequate repair technician training in the I/M area and, if the types of training described in paragraphs (c)(1) through (4) of this section are not currently available, shall insure that training is made available to all interested individuals in the community either through private or public facilities. This may involve working with local community colleges or vocational schools to add curricula to existing programs or start new programs or it might involve attracting private training providers to offer classes in the area. The training available shall include:
(1) Diagnosis and repair of malfunctions in computer controlled, close-loop vehicles;
(2) The application of emission control theory and diagnostic data to the diagnosis and repair of failures on the transient emission test and the evaporative system functional checks (where applicable);
(3) Utilization of diagnostic information on systematic or repeated failures observed in the transient emission test and the evaporative system functional checks (where applicable); and
(4) General training on the various subsystems related to engine emission control.
(d) SIP requirements. The SIP shall include a description of the technical assistance program to be implemented, a description of the procedures and criteria to be used in meeting the performance monitoring requirements of this section, and a description of the repair technician training resources available in the community.
§ 51.370   Compliance with recall notices.
States shall establish methods to ensure that vehicles subject to enhanced I/M and that are included in either a “Voluntary Emissions Recall” as defined at 40 CFR 85.1902(d), or in a remedial plan determination made pursuant to section 207(c) of the Act, receive the required repairs. States shall require that owners of recalled vehicles have the necessary recall repairs completed, either in order to complete an annual or biennial inspection process or to obtain vehicle registration renewal. All recalls for which owner notification occurs after January 1, 1995 shall be included in the enhanced I/M recall requirement.
(a) General requirements. (1) The State shall have an electronic means to identify recalled vehicles based on lists of VINs with unresolved recalls made available by EPA, the vehicle manufacturers, or a third party supplier approved by the Administrator. The State shall update its list of unresolved recalls on a quarterly basis at a minimum.
(2) The State shall require owners or lessees of vehicles with unresolved recalls to show proof of compliance with recall notices in order to complete either the inspection or registration cycle.
(3) Compliance shall be required on the next registration or inspection date, allowing a reasonable period to comply, after notification of recall was received by the State.
(b) Enforcement. (1) A vehicle shall either fail inspection or be denied vehicle registration if the required recall repairs have not been completed.
(2) In the case of vehicles obtaining recall repairs but remaining on the updated list provided in paragraph (a)(1) of this section, the State shall have a means of verifying completion of the required repairs; electronic records or paper receipts provided by the authorized repair facility shall be required. The vehicle inspection or registration record shall be modified to include (or be supplemented with other VIN-linked records which include) the recall campaign number(s) and the date(s) repairs were performed. Documentation verifying required repairs shall include the following:
(i) The VIN, make, and model year of the vehicle; and
(ii) The recall campaign number and the date repairs were completed.
(c) Reporting requirements. The State shall submit to EPA, by July of each year for the previous calendar year, an annual report providing the following information:
(1) The number of vehicles in the I/M area initially listed as having unresolved recalls, segregated by recall campaign number;
(2) The number of recalled vehicles brought into compliance by owners;
(3) The number of listed vehicles with unresolved recalls that, as of the end of the calendar year, were not yet due for inspection or registration;
(4) The number of recalled vehicles still in non-compliance that have either failed inspection or been denied registration on the basis of non-compliance with recall; and
(5) The number of recalled vehicles that are otherwise not in compliance.
(d) SIP submittals. The SIP shall describe the procedures used to incorporate the vehicle lists provided in paragraph (a)(1) of this section into the inspection or registration database, the quality control methods used to insure that recall repairs are properly documented and tracked, and the method (inspection failure or registration denial) used to enforce the recall requirements.
§ 51.371   On-road testing.
On-road testing is defined as testing of vehicles for conditions impacting the emission of HC, CO, NO X and/or CO2 emissions on any road or roadside in the nonattainment area or the I/M program area. On-road testing is required in enhanced I/M areas and is an option for basic I/M areas.
(a) General requirements. (1) On-road testing is to be part of the emission testing system, but is to be a complement to testing otherwise required.
(2) On-road testing is not required in every season or on every vehicle but shall evaluate the emission performance of 0.5% of the subject fleet statewide or 20,000 vehicles, whichever is less, per inspection cycle.
(3) The on-road testing program shall provide information about the performance of in-use vehicles, by measuring on-road emissions through the use of remote sensing devices or by assessing vehicle emission performance through roadside pullovers including tailpipe or evaporative emission testing or a check of the onboard diagnostic (OBD) system for vehicles so equipped. The program shall collect, analyze and report on-road testing data.
(4) Owners of vehicles that have previously been through the normal periodic inspection and passed the final retest and found to be high emitters shall be notified that the vehicles are required to pass an out-of-cycle follow-up inspection; notification may be by mailing in the case of remote sensing on-road testing or through immediate notification if roadside pullovers are used.
(b) SIP requirements. (1) The SIP shall include a detailed description of the on-road testing program, including the types of testing, test limits and criteria, the number of vehicles (the percentage of the fleet) to be tested, the number of employees to be dedicated to the on-road testing effort, the methods for collecting, analyzing, utilizing, and reporting the results of on-road testing and, the portion of the program budget to be dedicated to on-road testing.
(2) The SIP shall include the legal authority necessary to implement the on-road testing program, including the authority to enforce off-cycle inspection and repair requirements (where applicable).
(3) Emission reduction credit for on-road testing programs shall be granted for a program designed to obtain measurable emission reductions over and above those already predicted to be achieved by other aspects of the I/M program. Emission reduction credit will only be granted to those programs which require out-of-cycle repairs for confirmed high-emitting vehicles identified under the on-road testing program. The SIP shall include technical support for the claimed additional emission reductions.
§ 51.372   State Implementation Plan submissions.
(a) SIP submittals. The SIP shall address each of the elements covered in this subpart, including, but not limited to:
(1) A schedule of implementation of the program including interim milestones leading to mandatory testing. The milestones shall include, at a minimum:
(i) Passage of enabling statutory or other legal authority;
(ii) Proposal of draft regulations and promulgation of final regulations;
(iii) Issuance of final specifications and procedures;
(iv) Issuance of final Request for Proposals (if applicable);
(v) Licensing or certifications of stations and inspectors;
(vi) The date mandatory testing will begin for each model year to be covered by the program;
(vii) The date full-stringency cutpoints will take effect;
(viii) All other relevant dates;
(2) An analysis of emission level targets for the program using the most current EPA mobile source emission model or an alternative approved by the Administrator showing that the program meets the performance standard described in § 51.351 or § 51.352 of this subpart, as applicable;
(3) A description of the geographic coverage of the program, including ZIP codes if the program is not county-wide;
(4) A detailed discussion of each of the required design elements, including provisions for Federal facility compliance;
(5) Legal authority requiring or allowing implementation of the I/M program and providing either broad or specific authority to perform all required elements of the program;
(6) Legal authority for I/M program operation until such time as it is no longer necessary ( i.e. , until a Section 175 maintenance plan without an I/M program is approved by EPA);
(7) Implementing regulations, interagency agreements, and memoranda of understanding; and
(8) Evidence of adequate funding and resources to implement all aspects of the program.
(b) Submittal schedule. The SIP shall be submitted to EPA according to the following schedule—
(1) [Reserved]
(2) A SIP revision required as a result of a change in an area's designation or classification under a NAAQS for ozone, including all necessary legal authority and the items specified in paragraphs (a)(1) through (8) of this section, shall be submitted no later than the deadline for submitting the area's attainment SIP for the NAAQS in question.
(3) [Reserved]
(c) Redesignation requests. Any nonattainment area that EPA determines would otherwise qualify for redesignation from nonattainment to attainment shall receive full approval of a State Implementation Plan (SIP) submittal under Sections 182(a)(2)(B) or 182(b)(4) if the submittal contains the following elements:
(1) Legal authority to implement a basic I/M program (or enhanced if the State chooses to opt up) as required by this subpart. The legislative authority for an I/M program shall allow the adoption of implementing regulations without requiring further legislation.
(2) A request to place the I/M plan (if no I/M program is currently in place or if an I/M program has been terminated,) or the I/M upgrade (if the existing I/M program is to continue without being upgraded) into the contingency measures portion of the maintenance plan upon redesignation.
(3) A contingency measure consisting of a commitment by the Governor or the Governor's designee to adopt or consider adopting regulations to implement an I/M program to correct a violation of the ozone or CO standard or other air quality problem, in accordance with the provisions of the maintenance plan.
(4) A contingency commitment that includes an enforceable schedule for adoption and implementation of the I/M program, and appropriate milestones. The schedule shall include the date for submission of a SIP meeting all of the requirements of this subpart. Schedule milestones shall be listed in months from the date EPA notifies the State that it is in violation of the ozone or CO standard or any earlier date specified in the State plan. Unless the State, in accordance with the provisions of the maintenance plan, chooses not to implement I/M, it must submit a SIP revision containing an I/M program no more than 18 months after notification by EPA.
(d) Basic areas continuing operation of I/M programs as part of their maintenance plan without implemented upgrades shall be assumed to be 80% as effective as an implemented, upgraded version of the same I/M program design, unless a State can demonstrate using operating information that the I/M program is more effective than the 80% level.
(e) SIP submittals to correct violations. SIP submissions required pursuant to a violation of the ambient ozone or CO standard (as discussed in paragraph (c) of this section) shall address all of the requirements of this subpart. The SIP shall demonstrate that performance standards in either § 51.351 or § 51.352 shall be met using an evaluation date (rounded to the nearest January for carbon monoxide and July for hydrocarbons) seven years after the date EPA notifies the State that it is in violation of the ozone or CO standard or any earlier date specified in the State plan. Emission standards for vehicles subject to an IM240 test may be phased in during the program but full standards must be in effect for at least one complete test cycle before the end of the 5-year period. All other requirements shall take effect within 24 months of the date EPA notifies the State that it is in violation of the ozone or CO standard or any earlier date specified in the State plan. The phase-in allowances of § 51.373(c) of this subpart shall not apply.
§ 51.373   Implementation deadlines.
I/M programs shall be implemented as expeditiously as practicable.
(a) Decentralized basic programs shall be fully implemented by January 1, 1994, and centralized basic programs shall be fully implemented by July 1, 1994. More implementation time may be approved by the Administrator if an enhanced I/M program is implemented.
(b) For areas newly required to implement basic I/M as a result of designation under the 8-hour ozone standard, the required program shall be fully implemented no later than 4 years after the effective date of designation and classification under the 8-hour ozone standard.
(c) All requirements related to enhanced I/M programs shall be implemented by January 1, 1995, with the following exceptions.
(1) Areas switching from an existing test-and-repair network to a test-only network may phase in the change between January of 1995 and January of 1996. Starting in January of 1995 at least 30% of the subject vehicles shall participate in the test-only system (in States with multiple I/M areas, implementation is not required in every area by January 1995 as long as statewide, 30% of the subject vehicles are involved in testing) and shall be subject to the new test procedures (including the evaporative system checks, visual inspections, and tailpipe emission tests). By January 1, 1996, all applicable vehicle model years and types shall be included in the test-only system. During the phase-in period, all requirements of this subpart shall be applied to the test-only portion of the program; existing requirements may continue to apply for the test-and-repair portion of the program until it is phased out by January 1, 1996.
(2) Areas starting new test-only programs and those with existing test-only programs may also phase in the new test procedures between January 1, 1995 and January 1, 1996. Other program requirements shall be fully implemented by January 1, 1995.
(d) For areas newly required to implement enhanced I/M as a result of designation under the 8-hour ozone standard, the required program shall be fully implemented no later than 4 years after the effective date of designation and classification under the 8-hour ozone standard.
(e) [Reserved]
(f) Areas that choose to implement an enhanced I/M program only meeting the requirements of § 51.351(h) shall fully implement the program no later than July 1, 1999. The availability and use of this late start date does not relieve the area of the obligation to meet the requirements of § 51.351(h)(11) by the end of 1999.
(g) On-Board Diagnostic checks shall be implemented in all basic, low enhanced and high enhanced areas as part of the I/M program by January 1, 2002. Alternatively, states may elect to phase-in OBD-I/M testing for one test cycle by using the OBD-I/M check to screen clean vehicles from tailpipe testing and require repair and retest for only those vehicles which proceed to fail the tailpipe test. An additional alternative is also available to states with regard to the deadline for mandatory testing, repair, and retesting of vehicles based upon the OBD-I/M check. Under this third option, if a state can show good cause (and the Administrator takes notice-and-comment action to approve this good cause showing), up to an additional 12 months' extension may be granted, establishing an alternative start date for such states of no later than January 1, 2003. States choosing to make this showing will also have available to them the phase-in approach described in this section, with the one-cycle time limit to begin coincident with the alternative start date established by Administrator approval of the showing, but no later than January 1, 2003. The showing of good cause (and its approval or disapproval) will be addressed on a case-by-case basis.
(h) For areas newly required to implement either a basic or enhanced I/M program as a result of being designated and classified under the 8-hour ozone standard, such programs shall begin OBD testing on subject OBD-equipped vehicles coincident with program start-up.
§ 51.390   Implementation plan revision.
(a) Purpose and applicability. The federal conformity rules under part 93, subpart A, of this chapter, in addition to any existing applicable state requirements, establish the conformity criteria and procedures necessary to meet the requirements of Clean Air Act section 176(c) until such time as EPA approves the conformity implementation plan revision required by this subpart. A state with an area subject to this subpart and part 93, subpart A, of this chapter must submit to EPA a revision to its implementation plan which contains criteria and procedures for DOT, MPOs and other state or local agencies to assess the conformity of transportation plans, programs, and projects, consistent with this subpart and part 93, subpart A, of this chapter. The federal conformity regulations contained in part 93, subpart A, of this chapter would continue to apply for the portion of the requirements that the state did not include in its conformity implementation plan and the portion, if any, of the state's conformity provisions that is not approved by EPA. In addition, any previously applicable implementation plan conformity requirements remain enforceable until the state submits a revision to its applicable implementation plan to specifically remove them and that revision is approved by EPA.
(b) Conformity implementation plan content. To satisfy the requirements of Clean Air Act section 176(c)(4)(E), the implementation plan revision required by this section must include the following three requirements of part 93, subpart A, of this chapter: §§ 93.105, 93.122(a)(4)(ii), and 93.125(c). A state may elect to include any other provisions of part 93, subpart A. If the provisions of the following sections of part 93, subpart A, of this chapter are included, such provisions must be included in verbatim form, except insofar as needed to clarify or to give effect to a stated intent in the revision to establish criteria and procedures more stringent than the requirements stated in this chapter: §§ 93.101, 93.102, 93.103, 93.104, 93.106, 93.109, 93.110, 93.111, 93.112, 93.113, 93.114, 93.115, 93.116, 93.117, 93.118, 93.119, 93.120, 93.121, 93.126, and 93.127. A state's conformity provisions may contain criteria and procedures more stringent than the requirements described in this subpart and part 93, subpart A, of this chapter only if the state's conformity provisions apply equally to non-federal as well as federal entities.
(c) Timing and approval. A state must submit this revision to EPA by November 25, 1994 or within 12 months of an area's redesignation from attainment to nonattainment, if the state has not previously submitted such a revision. The state must also revise its conformity implementation plan within 12 months of the date of publication of any final amendments to §§ 93.105, 93.122(a)(4)(ii), and 93.125(c), as appropriate. Any other portions of part 93, subpart A, of this chapter that the state has included in its conformity implementation plan and EPA has approved must be revised in the state's implementation plan and submitted to EPA within 12 months of the date of publication of any final amendments to such sections. EPA will provide DOT with a 30-day comment period before taking action to approve or disapprove the submission. In order for EPA to approve the implementation plan revision submitted to EPA under this subpart, the plan revision must address and give full legal effect to the following three requirements of part 93, subpart A: §§ 93.105, 93.122(a)(4)(ii), and 93.125(c). Any other provisions that are incorporated into the conformity implementation plan must also be done in a manner that gives them full legal effect. Following EPA approval of the state conformity provisions (or a portion thereof) in a revision to the state's conformity implementation plan, conformity determinations will be governed by the approved (or approved portion of the) state criteria and procedures as well as any applicable portions of the federal conformity rules that are not addressed by the approved conformity SIP.
§ 51.490   Applicability.
(a) The rules in this subpart apply to any statutory economic incentive program (EIP) submitted to the EPA as an implementation plan revision to comply with sections 182(g)(3), 182(g)(5), 187(d)(3), or 187(g) of the Act. Such programs may be submitted by any authorized governmental organization, including States, local governments, and Indian governing bodies.
(b) The provisions contained in these rules, except as explicitly exempted, shall also serve as the EPA's policy guidance on discretionary EIP's submitted as implementation plan revisions for any purpose other than to comply with the statutory requirements specified in paragraph (a) of this section.
§ 51.491   Definitions.
Act means the Clean Air Act as amended November 15, 1990.
Actual emissions means the emissions of a pollutant from an affected source determined by taking into account actual emission rates associated with normal source operation and actual or representative production rates ( i.e. , capacity utilization and hours of operation).
Affected source means any stationary, area, or mobile source of a criteria pollutant(s) to which an EIP applies. This term applies to sources explicitly included at the start of a program, as well as sources that voluntarily enter ( i.e. , opt into) the program.
Allowable emissions means the emissions of a pollutant from an affected source determined by taking into account the most stringent of all applicable SIP emissions limits and the level of emissions consistent with source compliance with all Federal requirements related to attainment and maintenance of the NAAQS and the production rate associated with the maximum rated capacity and hours of operation (unless the source is subject to federally enforceable limits which restrict the operating rate, or hours of operation, or both).
Area sources means stationary and nonroad sources that are too small and/or too numerous to be individually included in a stationary source emissions inventory.
Attainment area means any area of the country designated or redesignated by the EPA at 40 CFR part 81 in accordance with section 107(d) as having attained the relevant NAAQS for a given criteria pollutant. An area can be an attainment area for some pollutants and a nonattainment area for other pollutants.
Attainment demonstration means the requirement in section 182(b)(1)(A) of the Act to demonstrate that the specific annual emissions reductions included in a SIP are sufficient to attain the primary NAAQS by the date applicable to the area.
Directionally-sound strategies are strategies for which adequate procedures to quantify emissions reductions or specify a program baseline are not defined as part of the EIP.
Discretionary economic incentive program means any EIP submitted to the EPA as an implementation plan revision for purposes other than to comply with the statutory requirements of sections 182(g)(3), 182(g)(5), 187(d)(3), or 187(g) of the Act.
Economic incentive program (EIP) means a program which may include State established emission fees or a system of marketable permits, or a system of State fees on sale or manufacture of products the use of which contributes to O 3 formation, or any combination of the foregoing or other similar measures, as well as incentives and requirements to reduce vehicle emissions and vehicle miles traveled in the area, including any of the transportation control measures identified in section 108(f). Such programs may be directed toward stationary, area, and/or mobile sources, to achieve emissions reductions milestones, to attain and maintain ambient air quality standards, and/or to provide more flexible, lower-cost approaches to meeting environmental goals. Such programs are categorized into the following three categories: Emission-limiting, market-response, and directionally-sound strategies.
Emission-limiting strategies are strategies that directly specify limits on total mass emissions, emission-related parameters (e.g., emission rates per unit of production, product content limits), or levels of emissions reductions relative to a program baseline that are required to be met by affected sources, while providing flexibility to sources to reduce the cost of meeting program requirements.
Indian governing body means the governing body of any tribe, band, or group of Indians subject to the jurisdiction of the U.S. and recognized by the U.S. as possessing power of self-government.
Maintenance plan means an implementation plan for an area for which the State is currently seeking designation or has previously sought redesignation to attainment, under section 107(d) of the Act, which provides for the continued attainment of the NAAQS.
Market-response strategies are strategies that create one or more incentives for affected sources to reduce emissions, without directly specifying limits on emissions or emission-related parameters that individual sources or even all sources in the aggregate are required to meet.
Milestones means the reductions in emissions required to be achieved pursuant to section 182(b)(1) and the corresponding requirements in section 182(c)(2) (B) and (C), 182(d), and 182(e) of the Act for O 3 nonattainment areas, as well as the reduction in emissions of CO equivalent to the total of the specified annual emissions reductions required by December 31, 1995, pursuant to section 187(d)(1).
Mobile sources means on-road (highway) vehicles (e.g., automobiles, trucks and motorcycles) and nonroad vehicles (e.g., trains, airplanes, agricultural equipment, industrial equipment, construction vehicles, off-road motorcycles, and marine vessels).
National ambient air quality standard (NAAQS) means a standard set by the EPA at 40 CFR part 50 under section 109 of the Act.
Nonattainment area means any area of the country designated by the EPA at 40 CFR part 81 in accordance with section 107(d) of the Act as nonattainment for one or more criteria pollutants. An area could be a nonattainment area for some pollutants and an attainment area for other pollutants.
Nondiscriminatory means that a program in one State does not result in discriminatory effects on other States or sources outside the State with regard to interstate commerce.
Program baseline means the level of emissions, or emission-related parameter(s), for each affected source or group of affected sources, from which program results (e.g., quantifiable emissions reductions) shall be determined.
Program uncertainty factor means a factor applied to discount the amount of emissions reductions credited in an implementation plan demonstration to account for any strategy-specific uncertainties in an EIP.
Reasonable further progress (RFP) plan means any incremental emissions reductions required by the CAA (e.g., section 182(b)) and approved by the EPA as meeting these requirements.
Replicable refers to methods which are sufficiently unambiguous such that the same or equivalent results would be obtained by the application of the methods by different users.
RFP baseline means the total of actual volatile organic compounds or nitrogen oxides emissions from all anthropogenic sources in an O 3 nonattainment area during the calendar year 1990 (net of growth and adjusted pursuant to section 182(b)(1)(B) of the Act), expressed as typical O 3 season, weekday emissions.
Rule compliance factor means a factor applied to discount the amount of emissions reductions credited in an implementation plan demonstration to account for less-than-complete compliance by the affected sources in an EIP.
Shortfall means the difference between the amount of emissions reductions credited in an implementation plan for a particular EIP and those that are actually achieved by that EIP, as determined through an approved reconciliation process.
State means State, local government, or Indian-governing body.
State implementation plan (SIP) means a plan developed by an authorized governing body, including States, local governments, and Indian-governing bodies, in a nonattainment area, as required under titles I & II of the Clean Air Act, and approved by the EPA as meeting these same requirements.
Stationary source means any building, structure, facility or installation, other than an area or mobile source, which emits or may emit any criteria air pollutant or precursor subject to regulation under the Act.
Statutory economic incentive program means any EIP submitted to the EPA as an implementation plan revision to comply with sections 182(g)(3), 182(g)(5), 187(d)(3), or 187(g) of the Act.
Surplus means, at a minimum, emissions reductions in excess of an established program baseline which are not required by SIP requirements or State regulations, relied upon in any applicable attainment plan or demonstration, or credited in any RFP or milestone demonstration, so as to prevent the double-counting of emissions reductions.
Transportation control measure (TCM) is any measure of the types listed in section 108(F) of the Act, or any measure in an applicable implementation plan directed toward reducing emissions of air pollutants from transportation sources by a reduction in vehicle use or changes in traffic conditions.
§ 51.492   State program election and submittal.
(a) Extreme O 3 nonattainment areas. (1) A State or authorized governing body for any extreme O 3 nonattainment area shall submit a plan revision to implement an EIP, in accordance with the requirements of this part, pursuant to section 182(g)(5) of the Act, if:
(i) A required milestone compliance demonstration is not submitted within the required period.
(ii) The Administrator determines that the area has not met any applicable milestone.
(2) The plan revision in paragraph (a)(1) of this section shall be submitted within 9 months after such failure or determination, and shall be sufficient, in combination with other elements of the SIP, to achieve the next milestone.
(b) Serious CO nonattainment areas. (1) A State or authorized governing body for any serious CO nonattainment area shall submit a plan revision to implement an EIP, in accordance with the requirements of this part, if:
(i) A milestone demonstration is not submitted within the required period, pursuant to section 187(d) of the Act.
(ii) The Administrator notifies the State, pursuant to section 187(d) of the Act, that a milestone has not been met.
(iii) The Administrator determines, pursuant to section 186(b)(2) of the Act that the NAAQS for CO has not been attained by the applicable date for that area. Such revision shall be submitted within 9 months after such failure or determination.
(2) Submittals made pursuant to paragraphs (b)(1) (i) and (ii) of this section shall be sufficient, together with a transportation control program, to achieve the specific annual reductions in CO emissions set forth in the implementation plan by the attainment date. Submittals made pursuant to paragraph (b)(1)(iii) of this section shall be adequate, in combination with other elements of the revised plan, to reduce the total tonnage of emissions of CO in the area by at least 5 percent per year in each year after approval of the plan revision and before attainment of the NAAQS for CO.
(c) Serious and severe O 3 nonattainment areas. If a State, for any serious or severe O 3 nonattainment area, elects to implement an EIP in the circumstances set out in section 182(g)(3) of the Act, the State shall submit a plan revision to implement the program in accordance with the requirements of this part. If the option to implement an EIP is elected, a plan revision shall be submitted within 12 months after the date required for election, and shall be sufficient, in combination with other elements of the SIP, to achieve the next milestone.
(d) Any nonattainment or attainment area. Any State may at any time submit a plan or plan revision to implement a discretionary EIP, in accordance with the requirements of this part, pursuant to sections 110(a)(2)(A) and 172(c)(6) and other applicable provisions of the Act concerning SIP submittals. The plan revision shall not interfere with any applicable requirement concerning attainment and RFP, or any other applicable requirements of the Act.
§ 51.493   State program requirements.
Economic incentive programs shall be State and federally enforceable, nondiscriminatory, and consistent with the timely attainment of NAAQS, all applicable RFP and visibility requirements, applicable PSD increments, and all other applicable requirements of the Act. Programs in nonattainment areas for which credit is taken in attainment and RFP demonstrations shall be designed to ensure that the effects of the program are quantifiable and permanent over the entire duration of the program, and that the credit taken is limited to that which is surplus. Statutory programs shall be designed to result in quantifiable, significant reductions in actual emissions. The EIP's shall include the following elements, as applicable:
(a) Statement of goals and rationale. This element shall include a clear statement as to the environmental problem being addressed, the intended environmental and economic goals of the program, and the rationale relating the incentive-based strategy to the program goals.
(1) The statement of goals must include the goal that the program will benefit both the environment and the regulated entities. The program shall be designed so as to meaningfully meet this goal either directly, through increased or more rapid emissions reductions beyond those that would be achieved through a traditional regulatory program, or, alternatively, through other approaches that will result in real environmental benefits. Such alternative approaches include, but are not limited to, improved administrative mechanisms, reduced administrative burdens on regulatory agencies, improved emissions inventories, and the adoption of emission caps which over time constrain or reduce growth-related emissions beyond traditional regulatory approaches.
(2) The incentive-based strategy shall be described in terms of one of the following three strategies:
(i) Emission-limiting strategies, which directly specify limits on total mass emissions, emission-related parameters (e.g., emission rates per unit of production, product content limits), or levels of emissions reductions relative to a program baseline that affected sources are required to meet, while providing flexibility to sources to reduce the cost of meeting program requirements.
(ii) Market-response strategies, which create one or more incentives for affected sources to reduce emissions, without directly specifying limits on emissions or emission-related parameters that individual sources or even all sources in the aggregate are required to meet.
(iii) Directionally-sound strategies, for which adequate procedures to quantify emissions reductions are not defined.
(b) Program scope. (1) This element shall contain a clear definition of the sources affected by the program. This definition shall address:
(i) The extent to which the program is mandatory or voluntary for the affected sources.
(ii) Provisions, if any, by which sources that are not required to be in the program may voluntarily enter the program.
(iii) Provisions, if any, by which sources covered by the program may voluntarily leave the program.
(2) Any opt-in or opt-out provisions in paragraph (b)(1) of this section shall be designed to provide mechanisms by which such program changes are reflected in an area's attainment and RFP demonstrations, thus ensuring that there will not be an increase in the emissions inventory for the area caused by voluntary entry or exit from the program.
(3) The program scope shall be defined so as not to interfere with any other Federal requirements which apply to the affected sources.
(c) Program baseline. A program baseline shall be defined as a basis for projecting program results and, if applicable, for initializing the incentive mechanism (e.g., for marketable permits programs). The program baseline shall be consistent with, and adequately reflected in, the assumptions and inputs used to develop an area's RFP plans and attainment and maintenance demonstrations, as applicable. The State shall provide sufficient supporting information from the areawide emissions inventory and other sources to justify the baseline used in the EIP.
(1) For EIP's submitted in conjunction with, or subsequent to, the submission of any areawide progress plan due at the time of EIP submission (e.g., the 15 percent RFP plan and/or subsequent 3 percent plans) or an attainment demonstration, a State may exercise flexibility in setting a program baseline provided the program baseline is consistent with and reflected in all relevant progress plans or attainment demonstration. A flexible program baseline may be based on the lower of actual, allowable, or some other intermediate or lower level of emissions. For any EIP submitted prior to the submittal of an attainment demonstration, the State shall include the following with its EIP submittal:
(i) A commitment that its subsequent attainment demonstration and all future progress plans, if applicable, will be consistent with the EIP baseline.
(ii) A discussion of how the baseline will be integrated into the subsequent attainment demonstration, taking into account the potential that credit issued prior to the attainment demonstration may no longer be surplus relative to the attainment demonstration.
(2) Except as provided for in paragraph (c)(4) of this section, for EIP's submitted during a time period when any progress plans are required but not yet submitted (e.g., the 15 percent RFP plan and/or the subsequent 3 percent plans), the program baseline shall be based on the lower-of-actual-or-allowable emissions. In such cases, actual emissions shall be taken from the most appropriate inventory, such as the 1990 actual emission inventory (due for submission in November 1992), and allowable emissions are the lower of SIP-allowable emissions or the level of emissions consistent with source compliance with all Federal requirements related to attainment and maintenance of the NAAQS.
(3) For EIP's that are designed to implement new and/or previously existing RACT requirements through emissions trading and are submitted in conjunction with, or subsequent to, the submission of an associated RACT rule, a State may exercise flexibility in setting a program baseline provided the program baseline is consistent with and reflected in the associated RACT rule, and any applicable progress plans and attainment demonstrations.
(4) For EIP's that are designed to implement new and/or previously existing RACT requirements through emissions trading and are submitted prior to the submission of a required RFP plan or attainment demonstration, States also have flexibility in determining the program baseline, provided the following conditions are met.
(i) For EIP's that implement new RACT requirements for previously unregulated source categories through emissions trading, the new RACT requirements must reflect, to the extent practicable, increased emissions reductions beyond those that would be achieved through a traditional RACT program.
(ii) For EIP's that impose new RACT requirements on previously unregulated sources in a previously regulated source category (e.g., RACT “catch-up” programs), the new incentive-based RACT rule shall, in the aggregate, yield reductions in actual emissions at least equivalent to that which would result from source-by-source compliance with the existing RACT limit for that source category.
(5) A program baseline for individual sources shall, as appropriate, be contained or incorporated by reference in federally-enforceable operating permits or a federally-enforceable SIP.
(6) An initial baseline for TCM's shall be calculated by establishing the preexisting conditions in the areas of interest. This may include establishing to what extent TCM's have already been implemented, what average vehicle occupancy (AVO) levels have been achieved during peak and off-peak periods, what types of trips occur in the region, and what mode choices have been made in making these trips. In addition, the extent to which travel options are currently available within the region of interest shall be determined. These travel options may include, but are not limited to, the degree of dispersion of transit services, the current ridership rates, and the availability and usage of parking facilities.
(7) Information used in setting a program baseline shall be of sufficient quality to provide for at least as high a degree of accountability as currently exists for traditional control requirements for the categories of sources affected by the program.
(d) Replicable emission quantification methods. This program element, for programs other than those which are categorized as directionally-sound, shall include credible, workable, and replicable methods for projecting program results from affected sources and, where necessary, for quantifying emissions from individual sources subject to the EIP. Such methods, if used to determine credit taken in attainment, RFP, and maintenance demonstrations, as applicable, shall yield results which can be shown to have a level of certainty comparable to that for source-specific standards and traditional methods of control strategy development. Such methods include, as applicable, the following elements:
(1) Specification of quantification methods. This element shall specify the approach or the combination or range of approaches that are acceptable for each source category affected by the program. Acceptable approaches may include, but are not limited to:
(i) Test methods for the direct measurement of emissions, either continuously or periodically.
(ii) Calculation equations which are a function of process or control system parameters, ambient conditions, activity levels, and/or throughput or production rates.
(iii) Mass balance calculations which are a function of inventory, usage, and/or disposal records.
(iv) EPA-approved emission factors, where appropriate and adequate.
(v) Any combination of these approaches.
(2) Specification of averaging times.
(i) The averaging time for any specified mass emissions caps or emission rate limits shall be consistent with: attaining and maintaining all applicable NAAQS, meeting RFP requirements, and ensuring equivalency with all applicable RACT requirements.
(ii) If the averaging time for any specified VOC or NO X mass emissions caps or emission rate limits for stationary sources (and for other sources, as appropriate) is longer than 24 hours, the State shall provide, in support of the SIP submittal, a statistical showing that the specified averaging time is consistent with attaining the O 3 NAAQS and satisfying RFP requirements, as applicable, on the basis of typical summer day emissions; and, if applicable, a statistical showing that the longer averaging time will produce emissions reductions that are equivalent on a daily basis to source-specific RACT requirements.
(3) Accounting for shutdowns and production curtailments. This accounting shall include provisions which ensure that:
(i) Emissions reductions associated with shutdowns and production curtailments are not double-counted in attainment or RFP demonstrations.
(ii) Any resultant “shifting demand” which increases emissions from other sources is accounted for in such demonstrations.
(4) Accounting for batch, seasonal, and cyclical operations. This accounting shall include provisions which ensure that the approaches used to account for such variable operations are consistent with attainment and RFP plans.
(5) Accounting for travel mode choice options, as appropriate, for TCM's. This accounting shall consider the factors or attributes of the different forms of travel modes (e.g., bus, ridesharing) which determine which type of travel an individual will choose. Such factors include, but are not limited to, time, cost, reliability, and convenience of the mode.
(e) Source requirements. This program element shall include all source-specific requirements that constitute compliance with the program. Such requirements shall be appropriate, readily ascertainable, and State and federally enforceable, including, as applicable:
(1) Emission limits.
(i) For programs that impose limits on total mass emissions, emission rates, or other emission-related parameter(s), there must be an appropriate tracking system so that a facility's limits are readily ascertainable at all times.
(ii) For emission-limiting EIP's that authorize RACT sources to meet their RACT requirements through RACT/non-RACT trading, such trading shall result in an exceptional environmental benefit. Demonstration of an exceptional environmental benefit shall require either the use of the statutory offset ratios for nonattainment areas as the determinant of the amount of emissions reductions that would be required from non-RACT sources generating credits for RACT sources or, alternatively, a trading ratio of 1.1 to 1, at a minimum, may be authorized, provided exceptional environmental benefits are otherwise demonstrated.
(2) Monitoring, recordkeeping, and reporting requirements.
(i) An EIP (or the SIP as a whole) must contain test methods and, where necessary, emission quantification methodologies, appropriate to the emission limits established in the SIP. EIP sources must be subject to clearly specified MRR requirements appropriate to the test methods and any applicable quantification methodologies, and consistent with the EPA's title V rules, where applicable. Such MRR requirements shall provide sufficiently reliable and timely information to determine compliance with emission limits and other applicable strategy-specific requirements, and to provide for State and Federal enforceability of such limits and requirements. Methods for MRR may include, but are not limited to:
(A) The continuous monitoring of mass emissions, emission rates, or process or control parameters.
(B) In situ or portable measurement devices to verify control system operating conditions.
(C) Periodic measurement of mass emissions or emission rates using reference test methods.
(D) Operation and maintenance procedures and/or other work practices designed to prevent, identify, or remedy noncomplying conditions.
(E) Manual or automated recordkeeping of material usage, inventories, throughput, production, or levels of required activities.
(F) Any combination of these methods. EIP's shall require that responsible parties at each facility in the EIP program certify reported information.
(ii) Procedures for determining required data, including the emissions contribution from affected sources, for periods for which required data monitoring is not performed, data are otherwise missing, or data have been demonstrated to have been inaccurately determined.
(3) Any other applicable strategy-specific requirements.
(f) Projected results and audit/reconciliation procedures. (1) The SIP submittal shall include projections of the emissions reductions associated with the implementation of the program. These projected results shall be related to and consistent with the assumptions used to develop the area's attainment demonstration and maintenance plan, as applicable. For programs designed to produce emissions reductions creditable towards RFP milestones, projected emissions reductions shall be related to the RFP baseline and consistent with the area's RFP compliance demonstration. The State shall provide sufficient supporting information that shows how affected sources are or will be addressed in the emissions inventory, RFP plan, and attainment demonstration or maintenance plan, as applicable.
(i) For emission-limiting programs, the projected results shall be consistent with the reductions in mass emissions or emissions-related parameters specified in the program design.
(ii) For market-response programs, the projected results shall be based on market analyses relating levels of targeted emissions and/or emission-related activities to program design parameters.
(iii) For directionally-sound programs, the projected results may be descriptive and shall be consistent with the area's attainment demonstration or maintenance plan.
(2) Quantitative projected results shall be adjusted through the use of two uncertainty factors, as appropriate, to reflect uncertainties inherent in both the extent to which sources will comply with program requirements and the overall program design.
(i) Uncertainty resulting from incomplete compliance shall be addressed through the use of a rule compliance factor.
(ii) Programmatic uncertainty shall be addressed through the use of a program uncertainty factor. Any presumptive norms set by the EPA shall be used unless an adequate justification for an alternative factor is included in supporting information to be supplied with the SIP submittal. In the absence of any EPA-specified presumptive norms, the State shall provide an adequate justification for the selected factors as part of the supporting information to be supplied with the SIP submittal.
(3) Unless otherwise provided in program-specific guidance issued by the EPA, EIP's for which SIP credit is taken shall include audit procedures to evaluate program implementation and track program results in terms of both actual emissions reductions, and, to the extent practicable, cost savings relative to traditional regulatory program requirements realized during program implementation. Such audits shall be conducted at specified time intervals, not to exceed three years. The State shall provide timely post-audit reports to the EPA.
(i) For emission-limiting EIP's, the State shall commit to ensure the timely implementation of programmatic revisions or other measures which the State, in response to the audit, deems necessary for the successful operation of the program in the context of overall RFP and attainment requirements.
(ii) For market-response EIP's, reconciliation procedures that identify a range of appropriate actions or revisions to program requirements that will make up for any shortfall between credited results ( i.e. , projected results, as adjusted by the two uncertainty factors described above) and actual results obtained during program implementation shall be submitted together with the program audit provisions. Such measures must be federally enforceable, as appropriate, and automatically executing to the extent necessary to make up the shortfall within a specified period of time, consistent with relevant RFP and attainment requirements.
(g) Implementation schedule. The program shall contain a schedule for the adoption and implementation of all State commitments and source requirements included in the program design.
(h) Administrative procedures. The program shall contain a description of State commitments which are integral to the implementation of the program, and the administrative system to be used to implement the program, addressing the adequacy of the personnel, funding, and legislative authority.
(1) States shall furnish adequate documentation of existing legal authority and demonstrated administrative capacity to implement and enforce the provisions of the EIP.
(2) For programs which require private and/or public entities to establish emission-related economic incentives (e.g., programs requiring employers to exempt carpoolers/multiple occupancy vehicles from paying for parking), States shall furnish adequate documentation of State authority and administrative capacity to implement and enforce the underlying program.
(i) Enforcement mechanisms. The program shall contain a compliance instrument(s) for all program requirements, which is legally binding and State and federally enforceable. This program element shall also include a State enforcement program which defines violations, and specifies auditing and inspections plans and provisions for enforcement actions. The program shall contain effective penalties for noncompliance which preserve the level of deterrence in traditional programs. For all such programs, the manner of collection of penalties must be specified.
(1) Emission limit violations. (i) Programs imposing limits on mass emissions or emission rates that provide for extended averaging times and/or compliance on a multisource basis shall include procedures for determining the number of violations, the number of days of violation, and sources in violation, for statutory maximum penalty purposes, when the limits are exceeded. The State shall demonstrate that such procedures shall not lessen the incentive for source compliance as compared to a program applied on a source-by-source, daily basis.
(ii) Programs shall require plans for remedying noncompliance at any facility that exceeds a multisource emissions limit for a given averaging period. These plans shall be enforceable both federally and by the State.
(2) Violations of MRR requirements. The MRR requirements shall apply on a daily basis, as appropriate, and violations thereof shall be subject to State enforcement sanctions and to the Federal penalty of up to $25,000 for each day a violation occurs or continues. In addition, where the requisite scienter conditions are met, violations of such requirements shall be subject to the Act's criminal penalty sanctions of section 113(c)(2), which provides for fines and imprisonment of up to 2 years. The civil monetary penalty amount listed in this section may not reflect recent inflation adjustments EPA is required to make. The current maximum and minimum statutory civil penalty amounts are located in § 19.4.
§ 51.494   Use of program revenues.
Any revenues generated from statutory EIP's shall be used by the State for any of the following:
(a) Providing incentives for achieving emissions reductions.
(b) Providing assistance for the development of innovative technologies for the control of O 3 air pollution and for the development of lower-polluting solvents and surface coatings. Such assistance shall not provide for the payment of more than 75 percent of either the costs of any project to develop such a technology or the costs of development of a lower-polluting solvent or surface coating.
(c) Funding the administrative costs of State programs under this Act. Not more than 50 percent of such revenues may be used for this purpose. The use of any revenues generated from discretionary EIP's shall not be constrained by the provisions of this part.
§ 51.850   [Reserved]
§ 51.851   State implementation plan (SIP) or Tribal implementation plan (TIP) revision.
(a) A State or eligible Tribe (a federally recognized tribal government determined to be eligible to submit a TIP under 40 CFR 49.6) may submit to the Environmental Protection Agency (EPA) a revision to its applicable implementation plan which contains criteria and procedures for assessing the conformity of Federal actions to the applicable implementation plan, consistent with this section and 40 CFR part 93, subpart B.
(b) Until EPA approves the conformity implementation plan revision permitted by this section, Federal agencies shall use the provisions of 40 CFR part 93, subpart B in addition to any existing applicable State or tribal requirements, to demonstrate conformity with the applicable SIP or TIP as required by section 176(c) of the CAA (42 U.S.C. 7506).
(c) Following EPA approval of the State or tribal conformity provisions (or a portion thereof) in a revision to the applicable SIP or TIP, conformity determinations shall be governed by the approved (or approved portion of) State or tribal criteria and procedures. The Federal conformity regulations contained in 40 CFR part 93, subpart B would apply only for the portion, if any, of the part 93 requirements not contained in the State or Tribe conformity provisions approved by EPA.
(d) The State or tribal conformity implementation plan criteria and procedures cannot be any less stringent than the requirements in 40 CFR part 93, subpart B.
(e) A State's or Tribe's conformity provisions may contain criteria and procedures more stringent than the requirements described in this subpart and part 93, subpart B, only if the State's or Tribe's conformity provisions apply equally to non-Federal as well as Federal entities.
(f) In its SIP or TIP, the State or Tribe may identify a list of Federal actions or type of emissions that it presumes will conform. The State or Tribe may place whatever limitations on that list that it deems necessary. The State or Tribe must demonstrate that the action will not interfere with timely attainment or maintenance of the standard, meeting the reasonable further progress milestones or other requirements of the Clean Air Act. Federal agencies can rely on the list to determine that their emissions conform with the applicable SIP or TIP.
(g) Any previously applicable SIP or TIP requirements relating to conformity remain enforceable until EPA approves the revision to the SIP or TIP to specifically remove them.
§§ 51.852-51.860   [Reserved]
§ 51.900   Definitions.
The following definitions apply for purposes of this subpart. Any term not defined herein shall have the meaning as defined in 40 CFR 51.100.
(a) 1-hour NAAQS means the 1-hour ozone national ambient air quality standards codified at 40 CFR 50.9.
(b) 8-hour NAAQS means the 8-hour ozone national ambient air quality standards codified at 40 CFR 50.10.
(c) 1-hour ozone design value is the 1-hour ozone concentration calculated according to 40 CFR part 50, Appendix H and the interpretation methodology issued by the Administrator most recently before the date of the enactment of the CAA Amendments of 1990.
(d) 8-Hour ozone design value is the 8-hour ozone concentration calculated according to 40 CFR part 50, appendix I.
(e) CAA means the Clean Air Act as codified at 42 U.S.C. 7401-7671q (2003).
(f) 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:
(1) Reasonably available control technology (RACT).
(2) Inspection and maintenance programs (I/M).
(3) Major source applicability cut-offs for purposes of RACT.
(4) Rate of Progress (ROP) reductions.
(5) Stage II vapor recovery.
(6) Clean fuels fleet program under section 183(c)(4) of the CAA.
(7) Clean fuels for boilers under section 182(e)(3) of the CAA.
(8) Transportation Control Measures (TCMs) during heavy traffic hours as provided under section 182(e)(4) of the CAA.
(9) Enhanced (ambient) monitoring under section 182(c)(1) of the CAA.
(10) Transportation controls under section 182(c)(5) of the CAA.
(11) Vehicle miles traveled provisions of section 182(d)(1) of the CAA.
(12) NO X requirements under section 182(f) of the CAA.
(13) Attainment demonstration or an alternative as provided under § 51.905(a)(1)(ii).
(14) Contingency measures required under CAA sections 172(c)(9) and 182(c)(9) that would be triggered based on a failure to attain the 1-hour NAAQS by the applicable attainment date or to make reasonable further progress toward attainment of the 1-hour NAAQS.
(g) Attainment year ozone season shall mean the ozone season immediately preceding a nonattainment area's attainment date.
(h) Designation for the 8-hour NAAQS shall mean the effective date of the 8-hour designation for an area.
(i) Higher classification/lower classification. For purposes of determining whether a classification is higher or lower, classifications are ranked from lowest to highest as follows: classification under subpart 1 of the CAA; marginal; moderate; serious; severe-15; severe-17; and extreme.
(j) Initially designated means the first designation that becomes effective for an area for the 8-hour NAAQS and does not include a redesignation to attainment or nonattainment for that standard.
(k) Maintenance area for the 1-hour NAAQS means an area that was designated nonattainment for the 1-hour NAAQS on or after November 15, 1990 and was redesignated to attainment for the 1-hour NAAQS subject to a maintenance plan as required by section 175A of the CAA.
(l) Nitrogen Oxides (NO X ) means the sum of nitric oxide and nitrogen dioxide in the flue gas or emission point, collectively expressed as nitrogen dioxide.
(m) NO X SIP Call means the rules codified at 40 CFR 51.121 and 51.122.
(n) Ozone season means for each State, the ozone monitoring season as defined in 40 CFR Part 58, Appendix D, section 2.5 for that State.
(o) Ozone transport region means the area established by section 184(a) of the CAA or any other area established by the Administrator pursuant to section 176A of the CAA for purposes of ozone.
(p) Reasonable further progress (RFP) means for the purposes of the 8-hour NAAQS, the progress reductions required under section 172(c)(2) and section 182(b)(1) and (c)(2)(B) and (c)(2)(C) of the CAA.
(q) Rate of progress (ROP) means for purposes of the 1-hour NAAQS, the progress reductions required under section 172(c)(2) and section 182(b)(1) and (c)(2)(B) and (c)(2)(C) of the CAA.
(r) Revocation of the 1-hour NAAQS means the time at which the 1-hour NAAQS no longer apply to an area pursuant to 40 CFR 50.9(b).
(s) Subpart 1 (CAA) means subpart 1 of part D of title I of the CAA.
(t) Subpart 2 (CAA) means subpart 2 of part D of title I of the CAA.
(u) Attainment Area means, unless otherwise indicated, an area designated as either attainment, unclassifiable, or attainment/unclassifiable.
(v) Summer day emissions means an average day's emissions for a typical summer work weekday. The state will select the particular month(s) in summer and the day(s) in the work week to be represented. The selection of conditions should be coordinated with the conditions assumed in the development of RFP plans, ROP plans and demonstrations, and/or emissions budgets for transportation conformity, to allow comparability of daily emission estimates.
§ 51.901   Applicability of part 51.
The provisions in subparts A through W of part 51 apply to areas for purposes of the 8-hour NAAQS to the extent they are not inconsistent with the provisions of this subpart.
§ 51.902   Which classification and nonattainment area planning provisions of the CAA shall apply to areas designated nonattainment for the 1997 8-hour NAAQS?
(a) An area designated nonattainment for the 1997 8-hour NAAQS will be classified in accordance with section 181 of the CAA, as interpreted in § 51.903(a), for purposes of the 1997 8-hour NAAQS, and will be subject to the requirements of subpart 2 that apply for that classification.
(b) [Reserved]
§ 51.903   How do the classification and attainment date provisions in section 181 of subpart 2 of the CAA apply to areas subject to § 51.902(a)?
(a) In accordance with section 181(a)(1) of the CAA, each area subject to § 51.902(a) shall be classified by operation of law at the time of designation. However, the classification shall be based on the 8-hour design value for the area, in accordance with Table 1 below, or such higher or lower classification as the State may request as provided in paragraphs (b) and (c) of this section. The 8-hour design value for the area shall be calculated using the three most recent years of air quality data. For each area classified under this section, the primary NAAQS attainment date for the 8-hour NAAQS shall be as expeditious as practicable but not later than the date provided in the following Table 1.
Table 1—Classification for 8-Hour Ozone NAAQS for Areas Subject to § 51.902( a )
1 but not including.
(b) A State may request a higher classification for any reason in accordance with section 181(b)(3) of the CAA.
(c) A State may request a lower classification in accordance with section 181(a)(4) of the CAA.
§ 51.904   How do the classification and attainment date provisions in section 172(a) of subpart 1 of the CAA apply to areas subject to § 51.902(b)?
(a) Classification. The Administrator may classify an area subject to § 51.902(b) as an overwhelming transport area if:
(1) The area meets the criteria as specified for rural transport areas under section 182(h) of the CAA;
(2) Transport of ozone and/or precursors into the area is so overwhelming that the contribution of local emissions to observed 8-hour ozone concentration above the level of the NAAQS is relatively minor; and
(3) The Administrator finds that sources of VOC (and, where the Administrator determines relevant, NO X ) emissions within the area do not make a significant contribution to the ozone concentrations measured in other areas.
(b) Attainment dates. For an area subject to § 51.902(b), the Administrator will approve an attainment date consistent with the attainment date timing provision of section 172(a)(2)(A) of the CAA at the time the Administrator approves an attainment demonstration for the area.
§ 51.905   How do areas transition from the 1-hour NAAQS to the 1997 8-hour NAAQS and what are the anti-backsliding provisions?
(a) What requirements that applied in an area for the 1-hour NAAQS continue to apply after revocation of the 1-hour NAAQS for that area? —(1) 8-Hour NAAQS Nonattainment/1-Hour NAAQS Nonattainment. The following requirements apply to an area designated nonattainment for the 8-hour NAAQS and designated nonattainment for the 1-hour NAAQS at the time of designation for the 8-hour NAAQS for that area.
(i) The area remains subject to the obligation to adopt and implement the applicable requirements as defined in § 51.900(f), except as provided in paragraph (a)(1)(iii) of this section, and except as provided in paragraph (b) of this section.
(ii) If the area has not met its obligation to have a fully-approved attainment demonstration SIP for the 1-hour NAAQS, the State must comply with one of the following:
(A) Submit a 1-hour attainment demonstration no later than 1 year after designation;
(B) Submit a RFP plan for the 8-hour NAAQS no later than 1-year following designations for the 8-hour NAAQS providing a 5 percent increment of emissions reduction from the area's 2002 emissions baseline, which must be in addition to measures (or enforceable commitments to measures) in the SIP at the time of the effective date of designation and in addition to national or regional measures and must be achieved no later than 2 years after the required date for submission (3 years after designation).
(C) Submit an 8-hour ozone attainment demonstration no later than 1 year following designations that demonstrates attainment of the 8-hour NAAQS by the area's attainment date; provides for 8-hour RFP for the area out to the attainment date; and for the initial period of RFP for the area (between 2003-2008), achieve the emission reductions by December 31, 2007.
(iii) If the area has an outstanding obligation for an approved 1-hour ROP SIP, it must develop and submit to EPA all outstanding 1-hour ROP plans; where a 1-hour obligation overlaps with an 8-hour RFP requirement, the State's 8-hour RFP plan can be used to satisfy the 1-hour ROP obligation if the 8-hour RFP plan has an emission target at least as stringent as the 1-hour ROP emission target in each of the 1-hour ROP target years for which the 1-hour ROP obligation exists.
(2) 8-Hour NAAQS Nonattainment/1-Hour NAAQS Maintenance. An area designated nonattainment for the 8-hour NAAQS that is a maintenance area for the 1-hour NAAQS at the time of designation for the 8-hour NAAQS for that area remains subject to the obligation to implement the applicable requirements as defined in § 51.900 (f) to the extent such obligations are required by the approved SIP, except as provided in paragraph (b) of this section. Applicable measures in the SIP must continue to be implemented; however, if these measures were shifted to contingency measures prior to designation for the 8-hour NAAQS for the area, they may remain as contingency measures, unless the measures are required to be implemented by the CAA by virtue of the area's requirements under the 8-hour NAAQS. The State may not remove such measures from the SIP.
(3) 8-Hour NAAQS Attainment/1-Hour NAAQS Nonattainment —(i) Obligations in an approved SIP. For an area that is 8-hour NAAQS attainment/1-hour NAAQS nonattainment, the State may request that obligations under the applicable requirements of § 51.900(f) be shifted to contingency measures, consistent with sections 110(l) and 193 of the CAA, after revocation of the 1-hour NAAQS; however, the State cannot remove the obligations from the SIP. For such areas, the State may request that the nonattainment NSR provisions be removed from the SIP on or after the date of revocation of the 1-hour NAAQS and need not be shifted to contingency measures subject to paragraph (e)(4) of this section.
(ii) Attainment demonstration and ROP plans. (A) To the extent an 8-hour NAAQS attainment/1-hour NAAQS nonattainment area does not have an approved attainment demonstration or ROP plan that was required for the 1-hour NAAQS under the CAA, the obligation to submit such an attainment demonstration or ROP plan
( 1 ) Is deferred for so long as the area continues to maintain the 8-hour NAAQS; and
( 2 ) No longer applies once the area has an approved maintenance plan pursuant to paragraph (a)(3)(iii) of this section.
(B) For an 8-hour NAAQS attainment/1-hour NAAQS nonattainment area that violates the 8-hour NAAQS, prior to having an approved maintenance plan for the 8-hour NAAQS as provided under paragraph (a)(3)(iii) of this section, paragraphs (a)(3)(ii)(B)( 1 ), ( 2 ), and ( 3 ) of this section shall apply.
( 1 ) In lieu of any outstanding obligation to submit an attainment demonstration, within 1 year after the date on which EPA publishes a determination that a violation of the 8-hour NAAQS has occurred, the State must submit (or revise a submitted) maintenance plan for the 8-hour NAAQS, as provided under paragraph (a)(3)(iii) of this section, to—
( i ) Address the violation by relying on modeling that meets EPA guidance for purposes of demonstrating maintenance of the NAAQS; or
( ii ) Submit a SIP providing for a 3 percent increment of emissions reductions from the area's 2002 emissions baseline; these reductions must be in addition to measures (or enforceable commitments to measures) in the SIP at the time of the effective date of designation and in addition to national or regional measures.
( 2 ) The plan required under paragraph (a)(3)(ii)(B)( 1 ) of this section must provide for the emission reductions required within 3 years after the date on which EPA publishes a determination that a violation of the 8-hour NAAQS has occurred.
( 3 ) The State shall submit an ROP plan to achieve any outstanding ROP reductions that were required for the area for the 1-hour NAAQS, and the 3-year period or periods for achieving the ROP reductions will begin January 1 of the year following the 3-year period on which EPA bases its determination that a violation of the 8-hour NAAQS occurred.
(iii) Maintenance plans for the 8-hour NAAQS. For areas initially designated attainment for the 8-hour NAAQS, and designated nonattainment for the 1-hour NAAQS at the time of designation for the 8-hour NAAQS, the State shall submit no later than 3 years after the area's designation for the 8-hour NAAQS, a maintenance plan for the 8-hour NAAQS in accordance with section 110(a)(1) of the CAA. The maintenance plan must provide for continued maintenance of the 8-hour NAAQS for 10 years following designation and must include contingency measures. This provision does not apply to areas redesignated from nonattainment to attainment for the 8-hour NAAQS pursuant to CAA section 107(d)(3); such areas are subject to the maintenance plan requirement in section 175A of the CAA.
(4) 8-Hour NAAQS Attainment/1-Hour NAAQS Maintenance —(i) Obligations in an approved SIP. For an 8-hour NAAQS attainment/1-hour NAAQS maintenance area, the State may request that obligations under the applicable requirements of § 51.900(f) be shifted to contingency measures, consistent with sections 110(l) and 193 of the CAA, after revocation of the 1-hour NAAQS; however, the State cannot remove the obligations from the SIP.
(ii) Maintenance Plans for the 8-hour NAAQS. For areas initially designated attainment for the 8-hour NAAQS and subject to the maintenance plan for the 1-hour NAAQS at the time of designation for the 8-hour NAAQS, the State shall submit no later than 3 years after the area's designation for the 8-hour NAAQS, a maintenance plan for the 8-hour NAAQS in accordance with section 110(a)(1) of the CAA. The maintenance plan must provide for continued maintenance of the 8-hour NAAQS for 10 years following designation and must include contingency measures. This provision does not apply to areas redesignated from nonattainment to attainment for the 8-hour NAAQS pursuant to section 107(d)(3); such areas are subject to the maintenance plan requirement in section 175A of the CAA.
(b) Does attainment of the ozone NAAQS affect the obligations under paragraph (a) of this section? A State remains subject to the obligations under paragraphs (a)(1)(i) and (a)(2) of this section until the area attains the 8-hour NAAQS. After the area attains the 8-hour NAAQS, the State may request such obligations be shifted to contingency measures, consistent with sections 110(l) and 193 of the CAA; however, the State cannot remove the obligations from the SIP. Once an area attains the 1-hour NAAQS, the section 172 and 182 contingency measures under the 1-hour NAAQS can be shifted to contingency measures for the 1997 8-hour ozone NAAQS and must remain in the SIP until the area is redesignated to attainment for the 1997 8-hour NAAQS.
(c) Which portions of an area designated for the 8-hour NAAQS remain subject to the obligations identified in paragraph (a) of this section? (1) Except as provided in paragraph (c)(2) of this section, only the portion of the designated area for the 8-hour NAAQS that was required to adopt the applicable requirements in § 51.900(f) for purposes of the 1-hour NAAQS is subject to the obligations identified in paragraph (a) of this section, including the requirement to submit a maintenance plan for purposes of paragraph (a)(3)(iii) of this section. 40 CFR part 81, subpart C identifies the boundaries of areas and the area designations and classifications for the 1-hour NAAQS in place as of the effective date of designation for the 8-hour NAAQS.
(2) For purposes of paragraph (a)(1)(ii)(B) and (C) of this section, the requirement to achieve emission reductions applies to the entire area designated nonattainment for the 8-hour ozone NAAQS.
(d) [Reserved]
(e) What obligations that applied for the 1-hour NAAQS will no longer apply after revocation of the 1-hour NAAQS for an area? —(1) Maintenance plans. Upon revocation of the 1-hour NAAQS, an area with an approved 1-hour maintenance plan under section 175A of the CAA may modify the maintenance plan: To remove the obligation to submit a maintenance plan for the 1-hour NAAQS 8 years after approval of the initial 1-hour maintenance plan; and to remove the obligation to implement contingency measures upon a violation of the 1-hour NAAQS. However, such requirements will remain enforceable as part of the approved SIP until such time as EPA approves a SIP revision removing such obligations. The EPA shall not approve a SIP revision requesting these modifications until the State submits and EPA approves an attainment demonstration for the 8-hour NAAQS for an area initially designated nonattainment for the 8-hour ozone NAAQS or a maintenance SIP for the 8-hour NAAQS for an area initially designated attainment for the 8-hour NAAQS. Any revision to such SIP must meet the requirements of section 110(l) and 193 of the CAA.
(2) Findings of failure to attain the 1-hour NAAQS. (i) Upon revocation of the 1-hour NAAQS for an area, EPA is no longer obligated—
(A) To determine pursuant to section 181(b)(2) or section 179(c) of the CAA whether an area attained the 1-hour NAAQS by that area's attainment date for the 1-hour NAAQS; or
(B) To reclassify an area to a higher classification for the 1-hour NAAQS based upon a determination that the area failed to attain the 1-hour NAAQS by the area's attainment date for the 1-hour NAAQS.
(ii)-(iii) [Reserved]
(3) Conformity determinations for the 1-hour NAAQS. Upon revocation of the 1-hour NAAQS for an area, conformity determinations pursuant to section 176(c) of the CAA are no longer required for the 1-hour NAAQS. At that time, any provisions of applicable SIPs that require conformity determinations in such areas for the 1-hour NAAQS will no longer be enforceable pursuant to section 176(c)(5) of the CAA.
(f) What is the continued applicability of the NO X SIP Call after revocation of the 1-hour NAAQS? The NO X SIP Call shall continue to apply after revocation of the 1-hour NAAQS. Control obligations approved into the SIP pursuant to 40 CFR 51.121 and 51.122 may be modified by the State only if the requirements of §§ 51.121 and 51.122, including the statewide NO X emission budgets, continue to be met and the State makes a showing consistent with section 110(l) of the CAA.
§ 51.906   Redesignation to nonattainment following initial designations for the 8-hour NAAQS.
For any area that is initially designated attainment or unclassifiable for the 8-hour NAAQS and that is subsequently redesignated to nonattainment for the 8-hour ozone NAAQS, any absolute, fixed date applicable in connection with the requirements of this part is extended by a period of time equal to the length of time between the effective date of the initial designation for the 8-hour NAAQS and the effective date of redesignation, except as otherwise provided in this subpart.
§ 51.907   For an area that fails to attain the 8-hour NAAQS by its attainment date, how does EPA interpret sections 172(a)(2)(C)(ii) and 181(a)(5)(B) of the CAA?
For purposes of applying sections 172(a)(2)(C) and 181(a)(5) of the CAA, an area will meet the requirement of section 172(a)(2)(C)(ii) or 181(a)(5)(B) of the CAA pertaining to 1-year extensions of the attainment date if:
(a) For the first 1-year extension, the area's 4th highest daily 8-hour average in the attainment year is 0.084 ppm or less.
(b) For the second 1-year extension, the area's 4th highest daily 8-hour value, averaged over both the original attainment year and the first extension year, is 0.084 ppm or less.
(c) For purposes of paragraphs (a) and (b) of this section, the area's 4th highest daily 8-hour average shall be from the monitor with the highest 4th highest daily 8-hour average of all the monitors that represent that area.
§ 51.908   What modeling and attainment demonstration requirements apply for purposes of the 8-hour ozone NAAQS?
(a) What is the attainment demonstration requirement for an area classified as moderate or higher under subpart 2 pursuant to § 51.903? An area classified as moderate or higher under § 51.903 shall be subject to the attainment demonstration requirement applicable for that classification under section 182 of the Act, except such demonstration is due no later than 3 years after the area's designation for the 8-hour NAAQS.
(b) What is the attainment demonstration requirement for an area subject only to subpart 1 in accordance with § 51.902(b)? An area subject to § 51.902(b) shall be subject to the attainment demonstration under section 172(c)(1) of the Act and shall submit an attainment demonstration no later than 3 years after the area's designation for the 8-hour NAAQS.
(c) What criteria must the attainment demonstration meet? An attainment demonstration due pursuant to paragraph (a) or (b) of this section must meet the requirements of § 51.112; the adequacy of an attainment demonstration shall be demonstrated by means of a photochemical grid model or any other analytical method determined by the Administrator, in the Administrator's discretion, to be at least as effective.
(d) For each nonattainment area, the State must provide for implementation of all control measures needed for attainment no later than the beginning of the attainment year ozone season.
§ 51.909   [Reserved]
§ 51.910   What requirements for reasonable further progress (RFP) under sections 172(c)(2) and 182 apply for areas designated nonattainment for the 8-hour ozone NAAQS?
(a) What are the general requirements for RFP for an area classified under subpart 2 pursuant to § 51.903? For an area classified under subpart 2 pursuant to § 51.903, the RFP requirements specified in section 182 of the Act for that area's classification shall apply.
(1) What is the content and timing of the RFP plan required under sections 182(b)(1) and 182(c)(2)(B) of the Act for an area classified as moderate or higher pursuant to § 51.903 (subpart 2 coverage)?
(i) Moderate or Above Area. (A) Except as provided in paragraph (a)(1)(ii) of this section, for each area classified as moderate or higher, the State shall submit a SIP revision consistent with section 182(b)(1) of the Act no later than 3 years after designation for the 8-hour NAAQS for the area. The 6-year period referenced in section 182(b)(1) of the Act shall begin January 1 of the year following the year used for the baseline emissions inventory.
(B) For each area classified as serious or higher, the State shall submit a SIP revision consistent with section 182(c)(2)(B) of the Act no later than 3 years after designation for the 8-hour NAAQS. The final increment of progress must be achieved no later than the attainment date for the area.
(ii) Area with Approved 1-hour Ozone 15 Percent VOC ROP Plan. An area classified as moderate or higher that has the same boundaries as an area, or is entirely composed of several areas or portions of areas, for which EPA fully approved a 15 percent plan for the 1-hour NAAQS is considered to have met section 182(b)(1) of the Act for the 8-hour NAAQS and instead:
(A) If classified as moderate, the area is subject to RFP under section 172(c)(2) of the Act and shall submit no later than 3 years after designation for the 8-hour NAAQS a SIP revision that meets the requirements of paragraph (b)(2) of this section, consistent with the attainment date established in the attainment demonstration SIP.
(B) If classified as serious or higher, the area is subject to RFP under section 182(c)(2)(B) of the Act and shall submit no later than 3 years after designation for the 8-hour NAAQS an RFP SIP providing for an average of 3 percent per year of VOC and/or NO X emissions reductions for
( 1 ) the 6-year period beginning January 1 of the year following the year used for the baseline emissions inventory; and
( 2 ) all remaining 3-year periods after the first 6-year period out to the area's attainment date.
(iii) Moderate and Above Area for Which Only a Portion Has an Approved 1-hour Ozone 15 Percent VOC ROP Plan. An area classified as moderate or higher that contains one or more areas, or portions of areas, for which EPA fully approved a 15 percent plan for the 1-hour NAAQS as well as areas for which EPA has not fully approved a 15 percent plan for the 1-hour NAAQS shall meet the requirements of either paragraph (a)(1)(iii)(A) or (B) below.
(A) The State shall not distinguish between the portion of the area that previously met the 15 percent VOC reduction requirement and the portion of the area that did not, and
( 1 ) The State shall submit a SIP revision consistent with section 182(b)(1) of the Act no later than 3 years after designation for the 8-hour NAAQS for the entire area. The 6-year period referenced in section 182(b)(1) of the Act shall begin January 1 of the year following the year used for the baseline emissions inventory.
( 2 ) For each area classified as serious or higher, the State shall submit a SIP revision consistent with section 182(c)(2)(B) of the Act no later than 3 years after designation for the 8-hour NAAQS. The final increment of progress must be achieved no later than the attainment date for the area.
(B) The State shall treat the area as two parts, each with a separate RFP target as follows:
( 1 ) For the portion of the area without an approved 15 percent VOC RFP plan for the 1-hour standard, the State shall submit a SIP revision consistent with section 182(b)(1) of the Act no later than 3 years after designation for the 8-hour NAAQS for the area. The 6-year period referenced in section 182(b)(1) of the Act shall begin January 1 of the year following the year used for the baseline emissions inventory. Emissions reductions to meet this requirement may come from anywhere within the 8-hour nonattainment area.
( 2 ) For the portion of the area with an approved 15 percent VOC plan for the 1-hour NAAQS, the State shall submit a SIP as required under paragraph (b)(2)of this section.
(2) What restrictions apply on the creditability of emission control measures for the RFP plans required under this section? Except as specifically provided in section 182(b)(1)(C) and (D) and section 182(c)(2)(B) of the Act, all SIP-approved or federally promulgated emissions reductions that occur after the baseline emissions inventory year are creditable for purposes of the RFP requirements in this section, provided the reductions meet the requirements for creditability, including the need to be enforceable, permanent, quantifiable and surplus, as described for purposes of State economic incentive programs in the requirements of § 51.493 of this part.
(b) How does the RFP requirement of section 172(c)(2) of the Act apply to areas subject to that requirement? (1) An area subject to the RFP requirement of subpart 1 pursuant to § 51.902(b) or a moderate area subject to subpart 2 as covered in paragraphs (a)(1)(ii)(A) of this section shall meet the RFP requirements of section 172(c)(2) of the Act as provided in paragraph (b)(2) of this section.
(2) The State shall submit no later than 3 years following designation for the 8-hour NAAQS a SIP providing for RFP consistent with the following:
(i) For each area with an attainment demonstration requesting an attainment date of 5 years or less after designation for the 8-hour NAAQS, the attainment demonstration SIP shall require that all emissions reductions needed for attainment be implemented by the beginning of the attainment year ozone season.
(ii) For each area with an attainment demonstration requesting an attainment date more than 5 years after designation for the 8-hour NAAQS, the attainment demonstration SIP—
(A) Shall provide for a 15 percent emission reduction from the baseline year within 6 years after the baseline year.
(B) May use either NO X or VOC emissions reductions (or both) to achieve the 15 percent emission reduction requirement. Use of NO X emissions reductions must meet the criteria in section 182(c)(2)(C) of the Act.
(C) For each subsequent 3-year period out to the attainment date, the RFP SIP must provide for an additional increment of progress. The increment for each 3-year period must be a portion of the remaining emission reductions needed for attainment beyond those reductions achieved for the first increment of progress (e.g., beyond 2008 for areas designated nonattainment in June 2004). Specifically, the amount of reductions needed for attainment is divided by the number of years needed for attainment after the first increment of progress in order to establish an “annual increment.” For each 3-year period out to the attainment date, the area must achieve roughly the portion of reductions equivalent to three annual increments.
(c) What method should a State use to calculate RFP targets? In calculating RFP targets for the initial 6-year period and the subsequent 3-year periods pursuant to this section, the State shall use the methods consistent with the requirements of sections 182(b)(1)(C) and (D) and 182(c)(2)(B) to properly account for non-creditable reductions.
(d) What is the baseline emissions inventory for RFP plans? For the RFP plans required under this section, the baseline emissions inventory shall be determined at the time of designation of the area for the 8-hour NAAQS and shall be the emissions inventory for the most recent calendar year for which a complete inventory is required to be submitted to EPA under the provisions of subpart A of this part or a more recent alternative baseline emissions inventory provided the State demonstrates that the baseline inventory meets the CAA provisions for RFP and provides a rationale for why it is appropriate to use the alternative baseline year rather than 2002 to comply with the CAA's RFP provisions.
§ 51.911   [Reserved]
§ 51.912   What requirements apply for reasonably available control technology (RACT) and reasonably available control measures (RACM) under the 8-hour NAAQS?
(a) What is the RACT requirement for areas subject to subpart 2 in accordance with § 51.903? (1) For each area subject to subpart 2 in accordance with § 51.903 of this part and classified moderate or higher, the State shall submit a SIP revision that meets the NO X and VOC RACT requirements in sections 182(b)(2) and 182(f) of the Act.
(2) The State shall submit the RACT SIP for each area no later than 27 months after designation for the 8-hour ozone NAAQS, except that for a State subject to the requirements of the Clean Air Interstate Rule, the State shall submit NO X RACT SIPs for electrical generating units (EGUs) no later than the date by which the area's attainment demonstration is due (prior to any reclassification under section 181(b)(3)) for the 8-hour ozone national ambient air quality standard, or July 9, 2007, whichever comes later.
(3) The State shall provide for implementation of RACT as expeditiously as practicable but no later than the first ozone season or portion thereof which occurs 30 months after the RACT SIP is due.
(b) How do the RACT provisions apply to a major stationary source? Volatile organic compounds and NO X are to be considered separately for purposes of determining whether a source is a major stationary source as defined in section 302 of the Act.
(c) What is the RACT requirement for areas subject only to subpart 1 pursuant to § 51.902(b)? Areas subject only to subpart 1 pursuant to § 51.902(b) are subject to the RACT requirement specified in section 172(c)(1) of the Act.
(1) For an area that submits an attainment demonstration that requests an attainment date 5 years or less after designation for the 8-hour NAAQS, the State shall meet the RACT requirement by submitting an attainment demonstration SIP demonstrating that the area has adopted all control measures necessary to demonstrate attainment as expeditiously as practicable.
(2) For an area that submits an attainment demonstration that requests an attainment date more than 5 years after designation for the 8-hour NAAQS, the State shall submit a SIP consistent with the requirements of § 51.912(a) and (b) except the State shall submit the RACT SIP for each area with its request pursuant to Clean Air Act section 172(a)(2)(A) to extend the attainment date.
(d) What is the Reasonably Available Control Measures (RACM) requirement for areas designated nonattainment for the 8-hour NAAQS? For each nonattainment area required to submit an attainment demonstration under § 51.908, the State shall submit with the attainment demonstration a SIP revision demonstrating that it has adopted all RACM necessary to demonstrate attainment as expeditiously as practicable and to meet any RFP requirements.
§ 51.913   How do the section 182(f) NOXexemption provisions apply for the 8-hour NAAQS?
(a) A person may petition the Administrator for an exemption from NO X obligations under section 182(f) for any area designated nonattainment for the 8-hour ozone NAAQS and for any area in a section 184 ozone transport region.
(b) The petition must contain adequate documentation that the criteria in section 182(f) are met.
(c) A section 182(f) NO X exemption granted for the 1-hour ozone standard does not relieve the area from any NO X obligations under section 182(f) for the 8-hour ozone standard.
§ 51.914   What new source review requirements apply for 8-hour ozone nonattainment areas?
The requirements for new source review for the 8-hour ozone standard are located in § 51.165 of this part.
§ 51.915   What emissions inventory requirements apply under the 8-hour NAAQS?
For each nonattainment area subject to subpart 2 in accordance with § 51.903, the emissions inventory requirements in sections 182(a)(1) and 182(a)(3) of the Act shall apply, and such SIP shall be due no later 2 years after designation. For each nonattainment area subject only to title I, part D, subpart 1 of the Act in accordance with § 51.902(b), the emissions inventory requirement in section 172(c)(3) of the Act shall apply, and an emission inventory SIP shall be due no later 3 years after designation. The state must report to the EPA summer day emissions of NO X and VOC from all point sources, nonpoint sources, onroad mobile sources, and nonroad mobile sources. The state shall report emissions as point sources according to the point source emissions thresholds of the Air Emissions Reporting Rule (AERR), 40 CFR part 51, subpart A. The detail of the emissions inventory shall be consistent with the data elements required by 40 CFR part 51, subpart A.
§ 51.916   What are the requirements for an Ozone Transport Region under the 8-hour NAAQS?
(a) In General. Sections 176A and 184 of the Act apply for purposes of the 8-hour NAAQS.
(b) RACT Requirements for Certain Portions of an Ozone Transport Region.
(1) The State shall submit a SIP revision that meets the RACT requirements of section 184 of the Act for each area that is located in an ozone transport region and that is—
(i) Designated as attainment or unclassifiable for the 8-hour standard;
(ii) Designated nonattainment and classified as marginal for the 8-hour standard; or
(iii) Designated nonattainment and covered solely under subpart 1 of part D, title I of the CAA for the 8-hour standard.
(2) The State is required to submit the RACT revision no later than September 16, 2006 and shall provide for implementation of RACT as expeditiously as practicable but no later than May 1, 2009.
§ 51.917   What is the effective date of designation for the Las Vegas, NV, 8-hour ozone nonattainment area?
The Las Vegas, NV, 8-hour ozone nonattainment area (designated on September 17, 2004 (69 FR 55956)) shall be treated as having an effective date of designation of June 15, 2004, for purposes of calculating SIP submission deadlines, attainment dates, or any other deadline under this subpart.
§ 51.918   Can any SIP planning requirements be suspended in 8-hour ozone nonattainment areas that have air quality data that meets the NAAQS?
Upon a determination by EPA that an area designated nonattainment for the 8-hour ozone NAAQS has attained the standard, the requirements for such area to submit attainment demonstrations and associated reasonably available control measures, reasonable further progress plans, contingency measures, and other planning SIPs related to attainment of the 8-hour ozone NAAQS shall be suspended until such time as: the area is redesignated to attainment, at which time the requirements no longer apply; or EPA determines that the area has violated the 8-hour ozone NAAQS.
§ 51.919   Applicability.
As of April 6, 2015, the provisions of subpart AA shall replace the provisions of subpart X, §§ 51.900 to 51.918, which will cease to apply, with the exception of the attainment date extension provisions of § 51.907 for the anti-backsliding purposes of § 51.1105(d)(2).
§ 51.930   Mitigation of Exceptional Events.
(a) A State requesting to exclude air quality data due to exceptional events must take appropriate and reasonable actions to protect public health from exceedances or violations of the national ambient air quality standards. At a minimum, the State must:
(1) Provide for prompt public notification whenever air quality concentrations exceed or are expected to exceed an applicable ambient air quality standard;
(2) Provide for public education concerning actions that individuals may take to reduce exposures to unhealthy levels of air quality during and following an exceptional event; and
(3) Provide for the implementation of appropriate measures to protect public health from exceedances or violations of ambient air quality standards caused by exceptional events.
(b) Development of mitigation plans for areas with historically documented or known seasonal events —(1) Generally. All States having areas with historically documented or known seasonal events shall be required to develop a mitigation plan with the components identified in paragraph (b)(2) of this section and submit such plan to the Administrator according to the requirements in paragraph (b)(3) of this section.
(i) For purposes of the requirements set forth in this section, historically documented or known seasonal events shall include those events of the same type and pollutant that recur in a 3-year period and meet any of the following:
(A) Three events or event seasons for which a State submits a demonstration under the provisions of 40 CFR 50.14 in a 3-year period; or
(B) Three events or event seasons that are the subject of an initial notification of a potential exceptional event as defined in 40 CFR 50.14(c)(2) in a 3-year period regardless of whether the State submits a demonstration under the provisions of 40 CFR 50.14.
(ii) The Administrator will provide written notification to States that they are subject to the requirements in paragraph (b) of this section when the Administrator becomes aware of applicability.
(2) Plan components. At a minimum, each mitigation plan developed under this paragraph shall contain provisions for the following:
(i) Public notification to and education programs for affected or potentially affected communities. Such notification and education programs shall apply whenever air quality concentrations exceed or are expected to exceed a national ambient air quality standard with an averaging time that is less than or equal to 24-hours.
(ii) Steps to identify, study and implement mitigating measures, including approaches to address each of the following:
(A) Measures to abate or minimize contributing controllable sources of identified pollutants.
(B) Methods to minimize public exposure to high concentrations of identified pollutants.
(C) Processes to collect and maintain data pertinent to the event.
(D) Mechanisms to consult with other air quality managers in the affected area regarding the appropriate responses to abate and minimize impacts.
(iii) Provisions for periodic review and evaluation of the mitigation plan and its implementation and effectiveness by the State and all interested stakeholders.
(A) With the submission of the initial mitigation plan according to the requirements in paragraph (b)(3) of this section that contains the elements in paragraph (b)(2) of this section, the State must:
( 1 ) Document that a draft version of the mitigation plan was available for public comment for a minimum of 30 days;
( 2 ) Submit the public comments it received along with its mitigation plan to the Administrator; and
( 3 ) In its submission to the Administrator, for each public comment received, explain the changes made to the mitigation plan or explain why the State did not make any changes to the mitigation plan.
(B) The State shall specify in its mitigation plan the periodic review and evaluation process that it intends to follow for reviews following the initial review identified in paragraph (b)(2)(iii)(A) of this section.
(3) Submission of mitigation plans. All States subject to the provisions of paragraph (b) of this section shall, after notice and opportunity for public comment identified in paragraph (b)(2)(iii)(A) of this section, submit a mitigation plan to the Administrator for review and verification of the plan components identified in paragraph (b)(2) of this section.
(i) States shall submit their mitigation plans within 2 years of being notified that they are subject to the provisions of paragraph (b) of this section.
(ii) The Administrator shall review each mitigation plan developed according to the requirements in paragraph (b)(2) of this section and shall notify the submitting State upon completion of such review.
§ 51.1000   Definitions.
The following definitions apply for purposes of this subpart. Any term not defined herein shall have the meaning as defined in 40 CFR 51.100 or Clean Air Act section 302.
Act means the Clean Air Act as codified at 42 U.S.C. 7401-7671q (2003).
Additional feasible measure is any control measure that otherwise meets the definition of “best available control measure” (BACM) but can only be implemented in whole or in part beginning 4 years after the date of reclassification of an area as Serious and no later than the statutory attainment date for the area.
Additional reasonable measure is any control measure that otherwise meets the definition of “reasonably available control measure” (RACM) but can only be implemented in whole or in part during the period beginning 4 years after the effective date of designation of a nonattainment area and no later than the end of the sixth calendar year following the effective date of designation of the area.
Applicable annual standard is the annual PM 2.5 NAAQS established, revised, or retained as a result of a particular PM 2.5 NAAQS review.
Applicable attainment date means the latest statutory date by which an area is required to attain a particular PM 2.5 NAAQS, unless the EPA has approved an attainment plan for the area to attain such NAAQS, in which case the applicable attainment date is the date approved under such attainment plan. If the EPA grants an extension of an approved attainment date, then the applicable attainment date for the area shall be the extended date.
Applicable 24-hour standard is the 24-hour PM 2.5 NAAQS established, revised, or retained as a result of a particular PM 2.5 NAAQS review.
Attainment projected inventory for the nonattainment area means the projected emissions of direct PM 2.5 and all PM 2.5 precursors on the projected attainment date for the area. This projected inventory includes sources included in the base year inventory for the nonattainment area revised to account for changes in direct PM 2.5 and all PM 2.5 precursors through implementation of the plan and any additional sources of such emissions expected within the boundaries of the nonattainment area by the projected attainment date for the area.
Average-season-day emissions means the sum of all emissions during the applicable season divided by the number of days in that season.
Base year inventory for the nonattainment area means the actual emissions of direct PM 2.5 and all PM 2.5 precursors from all sources within the boundaries of a nonattainment area in one of the 3 years used for purposes of designations or another technically appropriate year.
Best available control measure (BACM) is any technologically and economically feasible control measure that can be implemented in whole or in part within 4 years after the date of reclassification of a Moderate PM 2.5 nonattainment area to Serious and that generally can achieve greater permanent and enforceable emissions reductions in direct PM 2.5 emissions and/or emissions of PM 2.5 plan precursors from sources in the area than can be achieved through the implementation of RACM on the same source(s). BACM includes best available control technology (BACT).
Date of designation means the effective date of a PM 2.5 area designation as promulgated by the Administrator.
Date of reclassification means the effective date of a PM 2.5 area reclassification from Moderate to Serious as promulgated by the Administrator.
Direct PM 2.5 emissions means solid or liquid particles emitted directly from an air emissions source or activity, or reaction products of gases emitted directly from an air emissions source or activity which form particulate matter as they reach ambient temperatures. Direct PM 2.5 emissions include filterable and condensable PM 2.5 emissions composed of elemental carbon, directly emitted organic carbon, directly emitted sulfate, directly emitted nitrate, and other organic or inorganic particles that exist or form through reactions as emissions reach ambient temperatures (including but not limited to crustal material, metals, and sea salt).
Implemented means adopted by the state, fully approved into the SIP by the EPA, and requiring expeditious compliance by affected sources with installation and/or operation of any equipment, control device, process change, or other emission reduction activity.
Major stationary source means any stationary source of air pollutant(s) that emits, or has the potential to emit 100 tons per year or more of direct PM 2.5 or any PM 2.5 precursor in any Moderate nonattainment area for the PM 2.5 NAAQS, or 70 tons per year or more of direct PM 2.5 or any PM 2.5 precursor in any Serious nonattainment area for the PM 2.5 NAAQS.
Mobile source means mobile sources as defined by 40 CFR 51.50.
Most stringent measure (MSM) is any permanent and enforceable control measure that achieves the most stringent emissions reductions in direct PM 2.5 emissions and/or emissions of PM 2.5 plan precursors from among those control measures which are either included in the SIP for any other NAAQS, or have been achieved in practice in any state, and that can feasibly be implemented in the relevant PM 2.5 NAAQS nonattainment area.
Nonpoint source means nonpoint sources as defined by 40 CFR 51.50.
PM 2.5 design value (DV) for a PM 2.5 nonattainment area is the highest of the 3-year average concentrations calculated for the ambient air quality monitors in the area, in accordance with 40 CFR part 50, appendix N.
PM 2.5 NAAQS are the fine particulate matter National Ambient Air Quality Standards codified at 40 CFR part 50.
PM 2.5 plan precursors are those PM 2.5 precursors required to be regulated in the applicable attainment plan and/or NNSR program.
PM 2.5 precursors are Sulfur dioxide (SO 2 ), Oxides of nitrogen (NO X ), Volatile organic compounds (VOC), and Ammonia (NH 3 ).
Point source means point sources as defined by 40 CFR 51.50.
Precursor demonstration means an optional set of analyses provided by a state that are designed to show that emissions of a particular PM 2.5 precursor do not contribute significantly to PM 2.5 levels that exceed the relevant PM 2.5 standard in a particular nonattainment area. The three types of precursor demonstrations provided in this rule are the comprehensive precursor demonstration, the major stationary source precursor demonstration, and the NNSR precursor demonstration.
Reasonable further progress (RFP) means such annual incremental reductions in emissions of direct PM 2.5 and PM 2.5 plan precursors as are required for the purpose of ensuring attainment of the applicable PM 2.5 NAAQS in a nonattainment area by the applicable attainment date.
Reasonably available control measure (RACM) is any technologically and economically feasible measure that can be implemented in whole or in part within 4 years after the effective date of designation of a PM 2.5 nonattainment area and that achieves permanent and enforceable reductions in direct PM 2.5 emissions and/or PM 2.5 plan precursor emissions from sources in the area. RACM includes reasonably available control technology (RACT).
RFP projected emissions means the estimated emissions for direct PM 2.5 and PM 2.5 plan precursors by source category or subcategory for the years in which quantitative milestones are due for a nonattainment area.
Subpart 1 means subpart 1 of part D of title I of the Act.
Subpart 4 means subpart 4 of part D of title I of the Act.
§ 51.1001   Applicability of part 51.
The provisions in subparts A through X of this part apply to areas for purposes of the PM 2.5 NAAQS to the extent they are not inconsistent with the provisions of this subpart.
§ 51.1002   Classifications and reclassifications.
(a) Initial classification as Moderate PM 2.5 nonattainment area. Any area designated nonattainment for a PM 2.5 NAAQS shall be classified at the time of such designation, by operation of law, as a Moderate PM 2.5 nonattainment area.
(b) Reclassification as Serious PM 2.5 nonattainment area. A Moderate nonattainment area shall be reclassified to Serious under the following circumstances:
(1) The EPA shall reclassify as Serious through notice-and-comment rulemaking any Moderate PM 2.5 nonattainment area that the EPA determines cannot practicably attain a particular PM 2.5 NAAQS by the applicable Moderate area attainment date.
(2) A Moderate PM 2.5 nonattainment area shall be reclassified by operation of law as a Serious nonattainment area if the EPA finds through notice-and-comment rulemaking that the area failed to attain a particular PM 2.5 NAAQS by the applicable Moderate area attainment date.
§ 51.1003   Attainment plan due dates and submission requirements.
(a) Nonattainment areas initially classified as Moderate. (1) For any area designated as nonattainment and initially classified as Moderate for a PM 2.5 NAAQS, the state(s) shall submit a Moderate area attainment plan that meets all of the following requirements:
(i) Base year emissions inventory requirements set forth at § 51.1008(a)(1);
(ii) Attainment projected emissions inventory requirements set forth at § 51.1008(a)(2);
(iii) Moderate area attainment plan control strategy requirements set forth at § 51.1009;
(iv) Attainment demonstration and modeling requirements set forth at § 51.1011;
(v) Reasonable Further Progress (RFP) requirements set forth at § 51.1012;
(vi) Quantitative milestone requirements set forth at § 51.1013;
(vii) Contingency measure requirements set forth at § 51.1014; and,
(viii) Nonattainment new source review plan requirements pursuant to § 51.165.
(2) The state(s) shall submit its Moderate area attainment plan to the EPA no later than 18 months from the effective date of designation of the area.
(b) Nonattainment areas reclassified to Serious. (1) For any nonattainment area reclassified to Serious for a PM 2.5 NAAQS under § 51.1002(b), in addition to meeting the Moderate area attainment plan submission requirements set forth at § 51.1003(a), the state(s) shall submit a Serious area attainment plan that meets all of the following requirements:
(i) Base year emissions inventory requirements set forth at § 51.1008(b)(1);
(ii) Attainment projected emissions inventory requirements set forth at § 51.1008(b)(2);
(iii) Serious area attainment plan control strategy requirements set forth at § 51.1010;
(iv) Attainment demonstration and modeling requirements set forth at § 51.1011;
(v) Reasonable Further Progress (RFP) requirements set forth at § 51.1012;
(vi) Quantitative milestone requirements set forth at § 51.1013;
(vii) Contingency measure requirements set forth at § 51.1014; and,
(viii) Nonattainment new source review plan requirements pursuant to § 51.165.
(2) The state(s) shall submit its Serious area attainment plan to the EPA according to the following schedule:
(i) Discretionary reclassification. (A) For any nonattainment area reclassified to Serious for a particular PM 2.5 NAAQS under § 51.1002(b)(1) because the EPA determined it cannot practicably attain the NAAQS by the applicable Moderate area attainment date, the state(s) shall submit to the EPA no later than 18 months from the effective date of reclassification the portion of the Serious area attainment plan that meets the following requirements:
( 1 ) Base year emissions inventory requirements set forth at § 51.1008(b)(1);
( 2 ) Serious area attainment plan control strategy requirements set forth at § 51.1010(a)(1) through (4); and,
( 3 ) Nonattainment new source review plan requirements pursuant to § 51.165.
(B) The state(s) shall submit to the EPA the portion of the Serious area attainment plan that meets the requirements set forth at paragraphs (b)(1)(ii), and (b)(1)(iv) through (vii) of this section to the EPA by a date that is no later than 4 years after the effective date of reclassification, or 2 years prior to the attainment date, whichever is earlier.
(ii) Mandatory reclassification. For any nonattainment area reclassified to Serious for a particular PM 2.5 NAAQS under § 51.1002(b)(2) because the EPA determined it failed to attain the NAAQS by the applicable Moderate area attainment date, the state(s) shall submit to the EPA a Serious area attainment plan meeting the requirements set forth at paragraphs (b)(1)(i) through (viii) of this section within 18 months from the effective date of reclassification, or 2 years before the attainment date, whichever is earlier.
(iii) If the state(s) submits to the EPA a request for a Serious area attainment date extension simultaneous with the Serious area attainment plan due under paragraph (b)(1) of this section, such a plan shall meet the most stringent measure (MSM) requirements set forth at § 51.1010(b) in addition to the BACM and BACT and additional feasible measure requirements set forth at § 51.1010(a).
(c) Serious nonattainment areas subject to CAA section 189(d) for failing to attain the PM 2.5 NAAQS by the applicable Serious area attainment date. (1) For any Serious nonattainment area that fails to attain the PM 2.5 NAAQS by the applicable Serious area attainment date, the state(s) shall submit a revised Serious area attainment plan that demonstrates that each year the area will achieve at least a 5 percent reduction in emissions of direct PM 2.5 or a 5 percent reduction in emissions of a PM 2.5 plan precursor based on the most recent emissions inventory for the area. The revised attainment plan shall meet the following requirements:
(i) Emissions inventory requirements set forth at § 51.1008(c)(1);
(ii) Emissions inventory requirements set forth at § 51.1008(c)(2);
(iii) Serious area attainment plan control strategy requirements set forth at § 51.1010;
(iv) Attainment demonstration and modeling requirements set forth at § 51.1011;
(v) Reasonable Further Progress (RFP) requirements set forth at § 51.1012;
(vi) Quantitative milestone requirements set forth at § 51.1013;
(vii) Contingency measure requirements set forth at § 51.1014; and
(viii) Nonattainment new source review plan requirements pursuant to § 51.165.
(2) The state(s) shall submit to the EPA the revised attainment plan meeting the requirements set forth at paragraphs (c)(1)(i) through (vii) of this section no later than 12 months from the applicable Serious area attainment date that was previously missed.
(d) Any attainment plan submitted to the EPA under this section shall establish motor vehicle emissions budgets for the projected attainment year for the area, if applicable. The state shall develop such budgets according to the requirements of the transportation conformity rule as they apply to PM 2.5 nonattainment areas (40 CFR part 93).
§ 51.1004   Attainment dates.
(a) The state shall submit a projected attainment date as part of its attainment plan submission under § 51.1003 for any PM 2.5 NAAQS nonattainment area located in whole or in part within its boundaries. The state shall justify the projected attainment date for each such nonattainment area (or portion of a nonattainment area) as part of the demonstration of attainment developed and submitted according to the requirements set forth at § 51.1011 and according to the following:
(1) Nonattainment areas initially classified as Moderate.
(i) Except for nonattainment areas that meet the criterion under paragraph (a)(1)(ii) of this section, the projected attainment date for a Moderate PM 2.5 nonattainment area shall be as expeditious as practicable through the implementation of all control measures required under § 51.1009. The attainment date may be as late as the end of the sixth calendar year after the effective date of designation if the state demonstrates that the implementation of the control measures that qualify as RACM, RACT, and additional reasonable measures, but that are not necessary for demonstrating attainment by the end of the sixth calendar year after the effective date of designation, will not collectively advance the attainment date by at least 1 year.
(ii) The projected attainment date for a Moderate PM 2.5 nonattainment area which the state demonstrates cannot practicably attain the applicable PM 2.5 NAAQS by the end of the sixth calendar year after the effective date of designation of the area with the implementation of all control measures required under § 51.1009 shall be the end of the sixth calendar year after the effective date of designation unless and until the area is reclassified as Serious according to § 51.1002.
(2) Nonattainment areas reclassified to Serious. (i) Except for nonattainment areas that meet the criterion under paragraph (a)(2)(ii) of this section, the projected attainment date for a Serious PM 2.5 nonattainment area shall be as expeditious as practicable with the implementation of all control measures required under § 51.1010 but no later than the end of the tenth calendar year after the effective date of designation.
(ii) A state that submits an attainment plan that demonstrates that a Serious PM 2.5 nonattainment area cannot practicably attain the PM 2.5 NAAQS by the end of the tenth calendar year following the effective date of designation of the area with the implementation of all control measures required under § 51.1010(a) must request an extension of the Serious area attainment date consistent with § 51.1005(b). The request must propose a projected attainment date for the nonattainment area that is as expeditious as practicable, but no later than the end of the fifteenth calendar year following the effective date of designation of the area.
(3) Serious nonattainment areas subject to CAA section 189(d) for failing to attain by the applicable Serious area attainment date. The projected attainment date for a Serious PM 2.5 nonattainment area that failed to attain the PM 2.5 NAAQS by the applicable Serious area attainment date shall be as expeditious as practicable, but no later than 5 years following the effective date of the EPA's finding that the area failed to attain by the original Serious area attainment date, except that the Administrator may extend the attainment date to the extent the Administrator deems appropriate, for a period no greater than 10 years from the effective date of the EPA's determination that the area failed to attain, considering the severity of nonattainment and the availability and feasibility of pollution control measures.
(b) Except for attainment plans that meet the conditions of paragraphs (a)(1)(ii) or (a)(3) of this section, the Administrator shall approve an attainment date at the same time and in the same manner in which the Administrator approves the attainment plan for the area.
(1) In accordance with paragraph (a)(1)(ii) of this section, if a state demonstrates that a Moderate PM 2.5 nonattainment area cannot practicably attain the PM 2.5 NAAQS by the end of the sixth calendar year following the effective date of designation of the area, the EPA shall proceed under the provisions of § 51.1002(b)(1) to reclassify the area to Serious through notice-and-comment rulemaking.
(2) [Reserved]
§ 51.1005   Attainment date extensions.
(a) Nonattainment areas initially classified as Moderate. (1) A state with a Moderate PM 2.5 nonattainment area may apply for a 1-year attainment date extension for the area if the following conditions are met in the calendar year that includes the applicable attainment date for the area:
(i) The state has complied with all requirements and commitments pertaining to the area in the applicable implementation plan;
(ii) For an area designated nonattainment for a particular 24-hour PM 2.5 NAAQS for which the state seeks an attainment date extension, the 98th percentile 24-hour concentration at each monitor in the area for the calendar year that includes the applicable attainment date is less than or equal to the level of the applicable 24-hour standard (calculated according to the data analysis requirements in 40 CFR part 50, appendix N);
(iii) For an area designated nonattainment for a particular annual PM 2.5 NAAQS for which the state seeks an attainment date extension, the annual average concentration at each monitor in the area for the calendar year that includes the applicable attainment date is less than or equal to the level of the applicable annual standard (calculated according to the data analysis requirements in 40 CFR part 50, appendix N).
(2) The applicable implementation plan for a Moderate PM 2.5 nonattainment area for which a state seeks an attainment date extension is the plan submitted to the EPA to meet the requirements of § 51.1003(a).
(3) A Moderate area 1-year attainment date extension runs from January 1 to December 31 of the year following the year that includes the applicable attainment date.
(4) A state with a Moderate area that received an initial 1-year attainment date extension may apply for a second 1-year attainment date extension for the area if the state meets the conditions described in paragraph (a)(1) of this section for the first 1-year extension year.
(b) Nonattainment areas reclassified as Serious. (1) A state may apply for one attainment date extension not to exceed 5 years for a Serious nonattainment area if the following conditions are met:
(i) The state demonstrates that attainment of the applicable PM 2.5 NAAQS by the approved attainment date for the area would be impracticable or, in the absence of an approved attainment date, attainment of the applicable PM 2.5 NAAQS by the applicable statutory attainment date for the area would be impracticable;
(ii) The state has complied with all requirements and commitments pertaining to the area in the applicable implementation plan; and,
(iii) The state demonstrates that the attainment plan for the area includes the most stringent measures (MSM) that are included in the attainment plan of any state or are achieved in practice in any state, and can feasibly be implemented in the area consistent with § 51.1010(b).
(2) At the time of application for an attainment date extension, the state shall submit to the EPA a Serious area attainment plan that meets the following requirements:
(i) Base year and attainment projected emissions inventory requirements set forth at § 51.1008(b);
(ii) Most stringent measures (MSM) requirement described under paragraph (b)(1)(iii) of this section and § 51.1010(b), and best available control measures not previously submitted;
(iii) Attainment demonstration and modeling requirements set forth at § 51.1011 that justify the state's conclusion under paragraph (b)(1)(i) of this section, and that demonstrate attainment as expeditiously as practicable;
(iv) Reasonable Further Progress (RFP) requirements set forth at § 51.1012;
(v) Quantitative milestone requirements set forth at § 51.1013;
(vi) Contingency measure requirements set forth at § 51.1014; and,
(vii) Nonattainment new source review plan requirements pursuant to § 51.165.
(3) The applicable implementation plan for a Serious PM 2.5 nonattainment area for which a state seeks an attainment date extension under § 51.1004(a)(2)(ii) is the plan submitted to the EPA to meet the requirements set forth at § 51.1003(a).
(4) The applicable implementation plan for a Serious PM 2.5 nonattainment area for which a state seeks an attainment date extension under § 51.1004(a)(2)(i) is the plan submitted to the EPA to meet the requirements set forth at § 51.1003(b)(1).
(5) A state applying for an attainment date extension for a Serious nonattainment area under § 51.1004(a)(2)(ii) shall submit to the EPA a request for an extension at the same time as it submits the Serious area attainment plan due under § 51.1003(b)(1).
(6) A state applying for an attainment date extension for a Serious nonattainment area subsequent to submitting an initial Serious area attainment plan that demonstrated attainment of the NAAQS by the applicable attainment date consistent with § 51.1004(a)(2)(i) at the time of submission may apply for such an extension no later than 60 calendar days prior to the approved attainment date for the area or, in the absence of an approved attainment date, no later than 60 calendar days prior to the applicable statutory attainment date for the area.
(c) Serious nonattainment areas subject to CAA section 189(d) for failing to attain by the applicable Serious area attainment date. If a Serious area fails to attain a particular PM 2.5 NAAQS by the applicable Serious area attainment date, the area is then subject to the requirements of section 189(d) of the Act, and, for this reason, the state is prohibited from requesting an extension of the applicable Serious area attainment date for such area.
(d) For any attainment date extension request submitted pursuant to this section, the requesting state (or states) shall submit a written request and evidence of compliance with these regulations which includes both of the following:
(1) Evidence that all control measures submitted in the applicable attainment plan have been implemented, and
(2) Evidence that the area has made emission reduction progress that represents reasonable further progress toward timely attainment of the applicable PM 2.5 NAAQS.
(e) For a PM 2.5 nonattainment area located in two or more states or jurisdictions, all states and/or jurisdictions in which such area is located shall submit separate attainment date extension requests for the area consistent with the requirements set forth at paragraph (d) of this section.
§ 51.1006   Optional PM2.5precursor demonstrations
(a) A state may elect to submit to the EPA one or more precursor demonstrations for a specific nonattainment area. The analyses conducted in support of any precursor demonstration must be based on precursor emissions attributed to sources and activities in the nonattainment area.
(1) A comprehensive precursor demonstration must show that emissions of a particular precursor from all existing stationary, area, and mobile sources located in the nonattainment area do not contribute significantly to PM 2.5 levels that exceed the standard in the area. If the state chooses to conduct a comprehensive precursor demonstration, the state must conduct the analysis in paragraph (a)(1)(i) of this section and it may conduct the analysis in paragraph (a)(1)(ii) of this section.
(i) Concentration-based contribution analysis. The comprehensive precursor demonstration must evaluate the contribution of a particular precursor to PM 2.5 levels in the area. If the contribution of the precursor to PM 2.5 levels in the area is not significant, based on the facts and circumstances of the area, then the EPA may approve the demonstration.
(ii) Sensitivity-based contribution analysis. If the concentration-based contribution analysis does not support a finding of insignificant contribution, based on the facts and circumstances of the area, then the state may choose to submit an analysis evaluating the sensitivity of PM 2.5 levels in the area to a decrease in emissions of the precursor in order to determine whether the resulting air quality changes are significant. If the estimated air quality changes determined in the sensitivity analysis are not significant, based on the facts and circumstances of the area, then the EPA may approve the demonstration.
(iii) If a comprehensive precursor demonstration is approved by the EPA, the state will not be required to control emissions of the relevant precursor from existing sources in the current attainment plan.
(2) A major stationary source precursor demonstration must show that emissions of a particular precursor from all existing major stationary sources located in the nonattainment area do not contribute significantly to PM 2.5 levels that exceed the standard in the area. If the state chooses to conduct a major stationary source precursor demonstration, the state must conduct the analysis in paragraph (a)(2)(i) of this section and it may conduct the analysis in paragraph (a)(2)(ii) of this section.
(i) Concentration-based contribution analysis. The major stationary source precursor demonstration must evaluate the contribution of major source emissions of a particular precursor to PM 2.5 levels in the area. If the contribution of the precursor to PM 2.5 levels in the area is not significant, based on the facts and circumstances of the area, then the EPA may approve the demonstration.
(ii) Sensitivity-based contribution analysis. If the concentration-based contribution analysis does not support a finding of insignificant contribution, based on the facts and circumstances of the area, then the state may choose to submit an analysis evaluating the sensitivity of PM 2.5 levels in the area to a decrease in emissions of the precursor in order to determine whether the resulting air quality changes are significant. If the estimated air quality changes determined in the sensitivity analysis are not significant, based on the facts and circumstances of the area, then the EPA may approve the demonstration.
(iii) If a major stationary source precursor demonstration is approved by the EPA, the state will not be required to control emissions of the relevant precursor from existing major stationary sources in the current attainment plan.
(3)(i) A NNSR precursor demonstration must evaluate the sensitivity of PM 2.5 levels in the nonattainment area to an increase in emissions of a particular precursor in order to determine whether the resulting air quality changes are significant. If the estimated air quality changes determined in the sensitivity analysis are not significant, based on the facts and circumstances of the area, the state may use that information to identify new major stationary sources and major modifications of a precursor that will not be considered to contribute significantly to PM 2.5 levels that exceed the standard in the nonattainment area.
(ii) If a NNSR precursor demonstration for a particular PM 2.5 nonattainment area is approved, the state may exempt such new major stationary sources or major modifications of the particular precursor from the requirements for PM 2.5 in § 51.165.
(b) If an area with one or more precursor demonstrations approved by the EPA is required to submit another PM 2.5 attainment plan in accordance with § 51.1003 of this part, the current precursor demonstration(s) will not apply to the new plan. The state must submit the appropriate updated precursor demonstration(s) if it seeks to exempt sources of a particular precursor from control requirements in the new Serious area attainment demonstration or in the NNSR program for the Serious area.
§ 51.1007   [Reserved]
§ 51.1008   Emissions inventory requirements.
(a) For any nonattainment area initially classified as Moderate, the state shall submit to the EPA all of the following:
(1) A base year inventory for the nonattainment area for all emissions sources that meets the following minimum criteria:
(i) The inventory year shall be one of the 3 years for which monitored data were used for designations or another technically appropriate inventory year if justified by the state in the plan submission.
(ii) The inventory shall include actual emissions of all sources within the nonattainment area.
(iii) The emissions values shall be either annual total emissions, average-season-day emissions, or both, as appropriate for the relevant PM 2.5 NAAQS. The state shall include as part of the plan a rationale for providing annual or seasonal emissions, and the justification for the period used for any seasonal emissions calculations.
(iv) The inventory shall include direct PM 2.5 emissions, separately reported PM 2.5 filterable and condensable emissions, and emissions of the scientific PM 2.5 precursors, including precursors that are not PM 2.5 plan precursors pursuant to a precursor demonstration under § 51.1006.
(v) The state shall report emissions as point sources according to the point source emissions thresholds of the Air Emissions Reporting Requirements (AERR), 40 CFR part 51, subpart A.
(vi) The detail of the emissions inventory shall be consistent with the detail and data elements required by 40 CFR part 51, subpart A.
(2) An attainment projected inventory for the nonattainment area that meets the following minimum criteria:
(i) The year of the projected inventory shall be the most expeditious year for which projected emissions show modeled PM 2.5 concentrations below the level of the NAAQS.
(ii) The emissions values shall be projected emissions of the same sources included in the base year inventory for the nonattainment area ( i.e., those only within the nonattainment area) and any new sources. The state shall include in this inventory projected emissions growth and contraction from both controls and other causes during the relevant period.
(iii) The temporal period of emissions shall be the same temporal period (annual, average-season-day, or both) as the base year inventory for the nonattainment area.
(iv) Consistent with the base year inventory for the nonattainment area, the inventory shall include direct PM 2.5 emissions, separately reported PM 2.5 filterable and condensable emissions, and emissions of the scientific PM 2.5 precursors, including precursors that are not PM 2.5 plan precursors pursuant to a precursor demonstration under § 51.1006 of this part.
(v) The same sources reported as point sources in the base year inventory for the nonattainment area shall be included as point sources in the attainment projected inventory for the nonattainment area. Stationary nonpoint and mobile source projected emissions shall be provided using the same detail ( e.g., state, county, and process codes) as the base year inventory for the nonattainment area.
(vi) The same detail of the emissions included shall be consistent with the level of detail and data elements as in the base year inventory for the nonattainment area ( i.e., as required by 40 CFR part 41, subpart A).
(b) For any nonattainment area reclassified as Serious, the state shall submit to the EPA all of the following:
(1) For purposes of meeting the emissions inventory requirements of CAA section 172(c)(3), a base year inventory for the nonattainment area for all emissions sources that meets the requirements listed under paragraphs (a)(1) (ii) through (a)(1)(vi) of this section. In addition, the inventory shall use the Serious area definition of a major source listed under § 51.165(a)(1)(iv)(A), and(a)(1)(vii) and (viii), and consistent with Table 1 of Appendix A to subpart A of this part in determining sources to include as point sources. Finally, the inventory year shall be one of the 3 years for which monitored data were used for reclassification to Serious, or another technically appropriate inventory year if justified by the state in the plan submission.
(2) An attainment projected inventory for the nonattainment area that meets the criteria listed under paragraph (a)(2) of this section.
(c) Serious nonattainment areas subject to CAA section 189(d) for failing to attain a PM 2.5 NAAQS by the applicable Serious area attainment date. No later than 12 months after the EPA finds through notice-and-comment rulemaking that a Serious nonattainment area, or portion thereof contained within a state's borders, fails to attain a PM 2.5 NAAQS by the applicable attainment date and thus becomes subject to the requirements under CAA section 189(d), the state shall submit to the EPA all of the following:
(1) For purposes of meeting the emissions inventory requirements of CAA section 172(c)(3), a base year inventory for the nonattainment area for all emissions sources that meets the requirements listed under paragraphs (a)(1) (ii) through (a)(1)(vi) of this section. In addition, the inventory shall use the Serious area definition of a major source listed under § 51.165(a)(1)(iv)(A)(vii) and (viii) and consistent with Table 1 of Appendix A to subpart A of this part in determining sources to include as point sources. The inventory year shall be one of the 3 years for which monitored data were used to determine that the area failed to attain the PM 2.5 NAAQS by the applicable Serious area attainment date, or another technically appropriate inventory year if justified by the state in the plan submission.
(2) An attainment projected inventory for the nonattainment area as defined by § 51.1000(e) and that meets the criteria listed under paragraph (a)(2) of this section.
§ 51.1009   Moderate area attainment plan control strategy requirements.
(a) The state shall identify, adopt, and implement control measures, including control technologies, on sources of direct PM 2.5 emissions and sources of emissions of PM 2.5 plan precursors located in any Moderate PM 2.5 nonattainment area or portion thereof located within the state consistent with the following:
(1) The state shall identify all sources of direct PM 2.5 emissions and all sources of emissions of PM 2.5 precursors in the nonattainment area in accordance with the emissions inventory requirements of § 51.1008(a).
(2) The state shall identify all potential control measures to reduce emissions from all sources of direct PM 2.5 emissions and all sources of emissions of PM 2.5 plan precursors in the nonattainment area identified under paragraph (a)(1) of this section.
(i) The state is not required to identify and evaluate potential control measures to reduce emissions of a particular PM 2.5 precursor from any existing sources if the state has submitted a comprehensive precursor demonstration approved by the EPA pursuant to § 51.1006, except where the EPA requires such information as necessary to evaluate the comprehensive precursor demonstration pursuant to § 51.1006(a)(1)(ii).
(ii) The state is not required to identify and evaluate potential control measures to reduce emissions of a particular PM 2.5 precursor from any existing major stationary sources if the state has submitted a major stationary source precursor demonstration approved by the EPA pursuant to § 51.1006, except where the EPA requires such information as necessary to evaluate the major stationary source precursor demonstration pursuant to § 51.1006(a)(1)(ii).
(3) For any potential control measure identified under paragraph (a)(2) of this section, the state may make a demonstration that such measure is not technologically or economically feasible to implement in whole or in part by the end of the sixth calendar year following the effective date of designation of the area, and the state may eliminate such whole or partial measure from further consideration under this paragraph.
(i) For purposes of evaluating the technological feasibility of a potential control measure, the state may consider factors including but not limited to a source's processes and operating procedures, raw materials, physical plant layout, and potential environmental impacts such as increased water pollution, waste disposal, and energy requirements.
(ii) For purposes of evaluating the economic feasibility of a potential control measure, the state may consider factors including but not limited to capital costs, operating and maintenance costs, and cost effectiveness of the measure.
(iii) The state must submit to the EPA as part of its Moderate area attainment plan a detailed written justification for eliminating from further consideration any potential control measure identified under paragraph (a)(2) of this section on the basis of technological or economic infeasibility.
(4) The state shall use air quality modeling that meets the requirements of § 51.1011(a) and that accounts for emissions reductions estimated due to all technologically and economically feasible control measures identified for sources of direct PM 2.5 emissions and sources of emissions of PM 2.5 plan precursors in the Moderate PM 2.5 nonattainment area to demonstrate that the area can attain the applicable PM 2.5 NAAQS as expeditiously as practicable but no later than the end of the sixth year following the effective date of designation of the area. The state may use air quality modeling to demonstrate that the Moderate PM 2.5 nonattainment area cannot practicably attain the applicable PM 2.5 NAAQS by such date.
(i) If the state demonstrates through air quality modeling that the area can attain the applicable PM 2.5 NAAQS by the end of the sixth calendar year following the effective date of designation of the area, the state shall adopt and implement all technologically and economically feasible control measures identified under paragraph (a)(3) of this section that are necessary to bring the area into attainment by such date. The state shall also adopt and implement all other technologically and economically feasible measures identified under paragraph (a)(3) of this section that, when considered collectively, would advance the attainment date for the area by at least 1 year. If the state demonstrates through this analysis that control measures for reducing emissions of a PM 2.5 precursor would not be necessary for attainment as expeditiously as practicable or to advance the attainment date, then the state would not be required to include control measures for the precursor in the Moderate area attainment plan, nor be required to address the precursor in the RFP plan, quantitative milestones and associated reports, and contingency measures.
(A) Any control measure identified for adoption and implementation under this paragraph that can be implemented in whole or in part by 4 years after the effective date of designation of the Moderate PM 2.5 nonattainment area shall be considered RACM for the area. Any such control measure that is also a control technology shall be considered RACT for the area.
(B) Any control measure identified for adoption and implementation under this paragraph that can only be implemented in whole or in part during the period beginning 4 years after the effective date of designation of the Moderate PM 2.5 nonattainment area and the applicable attainment date for the area shall be considered an additional reasonable measure for the area.
(ii) If the state demonstrates that the area cannot practicably attain the applicable PM 2.5 NAAQS by the end of the sixth calendar year following the effective date of designation of the area, the state shall adopt all technologically and economically feasible control measures identified under paragraph (a)(3) of this section. This requirement also applies to areas that demonstrate pursuant to section 179B that the plan would be adequate to attain or maintain the standard but for emissions emanating from outside the United States.
(A) Any control measure identified for adoption and implementation under this paragraph that can be implemented in whole or in part by 4 years after the effective date of designation of the Moderate PM 2.5 nonattainment area shall be considered RACM for the area. Any such control measure that is also a control technology shall be considered RACT for the area.
(B) Any control measure identified for adoption and implementation under this paragraph that can only be implemented in whole or in part during the period beginning 4 years after the effective date of designation of the Moderate PM 2.5 nonattainment area through the end of the sixth calendar year following the effective date of designation of the area shall be considered an additional reasonable measure for the area.
(b) The state shall adopt control measures, including control technologies, on sources of direct PM 2.5 emissions and sources of emissions of PM 2.5 plan precursors located within the state but outside the Moderate PM 2.5 nonattainment area if adopting such control measures is necessary to provide for attainment of the applicable PM 2.5 NAAQS in such area.
(c) For new or revised source emissions limitations on sources of direct PM 2.5 emissions, the state shall establish such emission limitations to apply either to the total of the filterable plus condensable fractions of direct PM 2.5 , or to filterable PM 2.5 and condensable PM 2.5 separately.
§ 51.1010   Serious area attainment plan control strategy requirements.
(a) The state shall identify, adopt, and implement best available control measures, including control technologies, on sources of direct PM 2.5 emissions and sources of emissions of PM 2.5 plan precursors located in any Serious PM 2.5 nonattainment area or portion thereof located within the state and consistent with the following:
(1) The state shall identify all sources of direct PM 2.5 emissions and all sources of emissions of PM 2.5 precursors in the nonattainment area in accordance with the emissions inventory requirements of § 51.1008(b).
(2) The state shall identify all potential control measures to reduce emissions from all sources of direct PM 2.5 emissions and sources of emissions of PM 2.5 plan precursors in the nonattainment area identified under paragraph (a)(1) of this section.
(i) The state shall survey other NAAQS nonattainment areas in the U.S. and identify any measures for direct PM 2.5 and PM 2.5 plan precursors not previously identified by the state during the development of the Moderate area attainment plan for the area.
(ii) The state is not required to identify and evaluate potential control measures to reduce emissions of a particular PM 2.5 precursor from any existing sources if the state has submitted a comprehensive precursor demonstration approved by the EPA, except where the EPA requires such information as necessary to evaluate the comprehensive precursor demonstration pursuant to § 51.1006(a)(1)(ii).
(iii) The state is not required to identify and evaluate potential control measures to reduce emissions of a particular PM 2.5 precursor from any existing major stationary sources if the state has submitted a major stationary source precursor demonstration approved by the EPA, except where the EPA requires such information as necessary to evaluate the major stationary source demonstration pursuant to § 51.1006(a)(1)(ii).
(3) The state may make a demonstration that any measure identified under paragraph (a)(2) of this section is not technologically or economically feasible to implement in whole or in part by the end of the tenth calendar year following the effective date of designation of the area, and may eliminate such whole or partial measure from further consideration under this paragraph.
(i) For purposes of evaluating the technological feasibility of a potential control measure, the state may consider factors including but not limited to a source's processes and operating procedures, raw materials, physical plant layout, and potential environmental impacts such as increased water pollution, waste disposal, and energy requirements.
(ii) For purposes of evaluating the economic feasibility of a potential control measure, the state may consider capital costs, operating and maintenance costs, and cost effectiveness of the measure.
(iii) The state shall submit to the EPA as part of its Serious area attainment plan submission a detailed written justification for eliminating from further consideration any potential control measure identified under paragraph (a)(2) of this section on the basis of technological or economic infeasibility. The state shall provide as part of its written justification an explanation of how its criteria for determining the technological and economic feasibility of potential control measures under paragraphs (a)(3)(i) and (ii) of this section are more stringent than its criteria for determining the technological and economic feasibility of potential control measures under § 51.1009(a)(3)(i) and (ii) for the same sources in the PM 2.5 nonattainment area.
(4) Except as provided under paragraph (a)(3) of this section, the state shall adopt and implement all potential control measures identified under paragraph (a)(2) of this section.
(i) Any control measure that can be implemented in whole or in part by the end of the fourth year following the date of reclassification of the area to Serious shall be considered a best available control measure for the area. Any such control measure that is also a control technology for a stationary source in the area shall be considered a best available control technology for the area.
(ii) Any control measure that can be implemented in whole or in part between the end of the fourth year following the date of reclassification of the area to Serious and the applicable attainment date for the area shall be considered an additional feasible measure.
(5) The state shall use air quality modeling that meets the requirements of § 51.1011(b) and that accounts for emissions reductions estimated due to all best available control measures, including best available control technologies, and additional feasible measures identified for sources of direct PM 2.5 emissions and sources of emissions of PM 2.5 plan precursors in the area to demonstrate that the area can attain the PM 2.5 NAAQS as expeditiously as practicable but no later than the end of the tenth calendar year following the effective date of designation of the area, or to demonstrate that the Serious PM 2.5 nonattainment area cannot practicably attain the applicable PM 2.5 NAAQS by such date.
(b) For a Serious PM 2.5 nonattainment area for which air quality modeling demonstrates the area cannot practicably attain the applicable PM 2.5 NAAQS by the end of the tenth calendar year following the date of designation of the area, the state shall identify, adopt, and implement the most stringent control measures that are included in the attainment plan for any state or are achieved in practice in any state, and can be feasibly implemented in the area, consistent with the following requirements.
(1) The state shall identify all sources of direct PM 2.5 emissions and sources of emissions of PM 2.5 precursors in the nonattainment area in accordance with the emissions inventory requirements of § 51.1008(b).
(2) The state shall identify all potential control measures to reduce emissions from all sources of direct PM 2.5 emissions and sources of emissions of PM 2.5 plan precursors in the nonattainment area identified under paragraph (b)(1) of this section.
(i) For the sources and source categories represented in the emission inventory for the nonattainment area, the state shall identify the most stringent measures for reducing direct PM 2.5 and PM 2.5 plan precursors adopted into any SIP or used in practice to control emissions in any state.
(ii) The state shall reconsider and reassess any measures previously rejected by the state during the development of any previous Moderate area or Serious area attainment plan control strategy for the area.
(3) The state may make a demonstration that a measure identified under paragraph (b)(2) of this section is not technologically or economically feasible to implement in whole or in part by 5 years after the applicable attainment date for the area, and may eliminate such whole or partial measure from further consideration under this paragraph.
(i) For purposes of evaluating the technological feasibility of a potential control measure, the state may consider factors including but not limited to a source's processes and operating procedures, raw materials, physical plant layout, and potential environmental impacts such as increased water pollution, waste disposal, and energy requirements.
(ii) For purposes of evaluating the economic feasibility of a potential control measure, the state may consider capital costs, operating and maintenance costs, and cost effectiveness of the measure.
(iii) The state shall submit to the EPA as part of its Serious area attainment plan submission a detailed written justification for eliminating from further consideration any potential control measure identified under paragraph (b)(2) of this section on the basis of technological or economic infeasibility.
(4) Except as provided under paragraph (b)(3) of this section, the state shall adopt and implement all control measures identified under paragraph (b)(2) of this section that collectively shall achieve attainment as expeditiously as practicable but no later than 5 years after the applicable attainment date for the area.
(5) The state shall use air quality modeling that meets the requirements of § 51.1011(b) and that accounts for emissions reductions estimated due to all most stringent measures; best available control measures, including best available control technologies; and additional feasible measures identified for sources of direct PM 2.5 emissions and sources of emissions of PM 2.5 plan precursors in the area to demonstrate that the area can attain the PM 2.5 NAAQS as expeditiously as practicable but no later than the end of the fifteenth calendar year following the effective date of designation of the area.
(c) For a Serious PM 2.5 nonattainment area that the EPA has determined has failed to attain by the applicable attainment date, the state shall submit a revised attainment plan with a control strategy that demonstrates that each year the area will achieve at least a 5 percent reduction in emissions of direct PM 2.5 or a 5 percent reduction in emissions of a PM 2.5 plan precursor based on the most recent emissions inventory for the area; and that the area will attain the standard as expeditiously as practicable consistent with § 51.1004(a)(3). The plan shall meet the requirements of § 51.1003(c)-(d), and the following requirements:
(1) The state shall identify all sources of direct PM 2.5 emissions and sources of emissions of PM 2.5 precursors in the nonattainment area in accordance with the emissions inventory requirements of § 51.1008(b).
(2) The state shall identify all potential control measures to reduce emissions from all sources of direct PM 2.5 emissions and sources of emissions of PM 2.5 plan precursors in the nonattainment area identified under paragraph (c)(1) of this section.
(i) For the sources and source categories represented in the emission inventory for the nonattainment area, the state shall identify the most stringent measures for reducing direct PM 2.5 and PM 2.5 plan precursors adopted into any SIP or used in practice to control emissions in any state, as applicable.
(ii) The state shall reconsider and reassess any measures previously rejected by the state during the development of any Moderate area or Serious area attainment plan control strategy for the area.
(3) The state may make a demonstration that a measure identified under paragraph (c)(2) of this section is not technologically or economically feasible to implement in whole or in part within 5 years or such longer period as the EPA may determine is appropriate after the EPA's determination that the area failed to attain by the Serious area attainment date, and may eliminate such whole or partial measure from further consideration under this paragraph.
(i) For purposes of evaluating the technological feasibility of a potential control measure, the state may consider factors including but not limited to a source's processes and operating procedures, raw materials, physical plant layout, and potential environmental impacts such as increased water pollution, waste disposal, and energy requirements.
(ii) For purposes of evaluating the economic feasibility of a potential control measure, the state may consider capital costs, operating and maintenance costs, and cost effectiveness of the measure.
(iii) The state shall submit to the EPA as part of its Serious area attainment plan submission a detailed written justification for eliminating from further consideration any potential control measure identified under paragraph (c)(2) of this section on the basis of technological or economic infeasibility.
(4) Except as provided under paragraph (c)(3) of this section, the state shall adopt and implement all control measures identified under paragraph (c)(2) of this section that collectively achieve attainment of the standard as expeditiously as practicable pursuant to § 51.1004(a)(3).
(5) The state shall conduct air quality modeling that meets the requirements of § 51.1011(b) and that accounts for emissions reductions due to control measures needed to meet the annual reduction requirement of 5 percent of direct PM 2.5 or a PM 2.5 plan precursor; most stringent measures; best available control measures, including best available control technologies; and additional feasible measures identified for sources of direct PM 2.5 emissions and sources of emissions of PM 2.5 plan precursors in the area in order to demonstrate that the area can attain the PM 2.5 NAAQS as expeditiously as practicable.
(d) The state shall adopt control measures, including control technologies, on sources of direct PM 2.5 emissions and sources of emissions of PM 2.5 plan precursors located within the state but outside the Serious PM 2.5 nonattainment area if adopting such control measures is necessary to provide for attainment of the applicable PM 2.5 NAAQS in such area by the attainment date.
(e) For new or revised source emissions limitations on sources of direct PM 2.5 emissions, the state shall establish such emission limitations to apply either to the total of the filterable plus condensable fractions of direct PM 2.5 , or to filterable PM 2.5 and condensable PM 2.5 separately.
§ 51.1011   Attainment demonstration and modeling requirements.
(a) Nonattainment areas initially classified as Moderate. The attainment demonstration due to the EPA as part of any Moderate area attainment plan required under § 51.1003(a) shall meet all of the following criteria:
(1) The attainment demonstration shall show the projected attainment date for the Moderate nonattainment area that is as expeditious as practicable in accordance with the requirements of § 51.1004(a)(1).
(2) The attainment demonstration shall meet the requirements of Appendix W of this part and shall include inventory data, modeling results, and emission reduction analyses on which the state has based its projected attainment date.
(3) The base year for the emissions inventory required for an attainment demonstration under this paragraph shall be one of the 3 years used for designations or another technically appropriate inventory year if justified by the state in the plan submission.
(4) The control strategies modeled as part of the attainment demonstration shall be consistent with the following as applicable:
(i) For a Moderate area that can demonstrate attainment of the applicable PM 2.5 NAAQS no later than the end of the sixth calendar year following the date of designation of the area with the implementation of RACM and RACT and additional reasonable measures, the control strategies modeled as part of the attainment demonstration shall be consistent with control strategy requirements under § 51.1009(a).
(ii) For a Moderate area that cannot practicably attain the applicable PM 2.5 NAAQS by the end of the sixth calendar year following the date of designation of the area with the implementation of RACM and RACT and additional reasonable measures, the control strategies modeled as part of the attainment demonstration shall be consistent with control strategy requirements under § 51.1009(b).
(5) Required time frame for obtaining emissions reductions. For each Moderate nonattainment area, the attainment plan must provide for implementation of all control measures needed for attainment as expeditiously as practicable. All control measures in the attainment demonstration must be implemented no later than the beginning of the year containing the applicable attainment date, notwithstanding RACM implementation deadline requirements in § 51.1009.
(b) Nonattainment areas reclassified as Serious. The attainment demonstration due to the EPA as part of a Serious area attainment plan required under § 51.1003(b) or (c) shall meet all of the following criteria:
(1) The attainment demonstration shall show the projected attainment date for the Serious nonattainment area that is as expeditious as practicable.
(2) The attainment demonstration shall meet the requirements of Appendix W of this part and shall include inventory data, modeling results, and emission reduction analyses on which the state has based its projected attainment date.
(3) The base year for the emissions inventories required for attainment demonstrations under this paragraph shall be one of the 3 years used for designations or another technically appropriate inventory year if justified by the state in the plan submission.
(4) The control strategies modeled as part of a Serious area attainment demonstration shall be consistent with the control strategies required pursuant to § 51.1003 and § 51.1010.
(5) Required timeframe for obtaining emissions reductions. For each Serious nonattainment area, the attainment plan must provide for implementation of all control measures needed for attainment as expeditiously as practicable. All control measures must be implemented no later than the beginning of the year containing the applicable attainment date, notwithstanding BACM implementation deadline requirements in § 51.1010.
§ 51.1012   Reasonable further progress (RFP) requirements.
(a) Each attainment plan for a PM 2.5 nonattainment area shall include an RFP plan that demonstrates that sources in the area will achieve such annual incremental reductions in emissions of direct PM 2.5 and PM 2.5 plan precursors as are necessary to ensure attainment of the applicable PM 2.5 NAAQS as expeditiously as practicable. The RFP plan shall include all of the following:
(1) A schedule describing the implementation of control measures during each year of the applicable attainment plan. Control measures for Moderate area attainment plans are required in § 51.1009, and control measures for Serious area attainment plans are required in § 51.1010.
(2) RFP projected emissions for direct PM 2.5 and all PM 2.5 plan precursors for each applicable milestone year, based on the anticipated implementation schedule for control measures required in paragraph (a)(1) of this section. For purposes of establishing motor vehicle emissions budgets for transportation conformity purposes (as required in 40 CFR part 93) for a PM 2.5 nonattainment area, the state shall include in its RFP submission an inventory of on-road mobile source emissions in the nonattainment area for each milestone year.
(3) An analysis that presents the schedule of control measures and estimated emissions changes to be achieved by each milestone year, and that demonstrates that the control strategy will achieve reasonable progress toward attainment between the applicable base year and the attainment year. The analysis shall rely on information from the base year inventory for the nonattainment area required in § 51.1008(a)(1) and the attainment projected inventory for the nonattainment area required in § 51.1008(a)(2), in addition to the RFP projected emissions required in paragraph (a)(2) of this section.
(4) An analysis that demonstrates that by the end of the calendar year for each milestone date for the area determined in accordance with § 51.1013(a), pollutant emissions will be at levels that reflect either generally linear progress or stepwise progress in reducing emissions on an annual basis between the base year and the attainment year. A demonstration of stepwise progress must be accompanied by appropriate justification for the selected implementation schedule.
(5) At the state's election, an analysis that identifies air quality targets associated with the RFP projected emissions identified for the milestone years at the design value monitor locations.
(b) For a multi-state or multi-jurisdictional nonattainment area, the RFP plans for each state represented in the nonattainment area shall demonstrate RFP on the basis of common multi-state inventories. The states or jurisdictions within which the area is located must provide a coordinated RFP plan. Each state in a multi-state nonattainment area must ensure that the sources within its boundaries comply with enforceable emission levels and other requirements that in combination with the reductions planned in other state(s) within the nonattainment area will provide for attainment as expeditiously as practicable and demonstrate RFP consistent with these regulations.
§ 51.1013   Quantitative milestone requirements.
(a) Consistent with CAA section 189(c)(1), the state must submit in each attainment plan for a PM 2.5 nonattainment area specific quantitative milestones that demonstrate reasonable further progress toward attainment of the applicable PM 2.5 NAAQS in the area and that meet the following requirements:
(1) Nonattainment areas initially classified as Moderate. (i) Except as provided in paragraph (a)(4) of this section, each attainment plan submittal for a Moderate PM 2.5 nonattainment area shall contain quantitative milestones to be achieved no later than a milestone date of 4.5 years and 7.5 years from the date of designation of the area.
(ii) The plan shall contain quantitative milestones to be achieved by the milestone dates specified in paragraph (a)(1)(i) of this section, as applicable, and that provide for objective evaluation of reasonable further progress toward timely attainment of the applicable PM 2.5 NAAQS in the area. At a minimum, each quantitative milestone plan must include a milestone for tracking progress achieved in implementing the SIP control measures, including RACM and RACT, by each milestone date.
(2) Nonattainment areas reclassified as Serious. (i) Except as provided in paragraph (a)(4) of this section, each attainment plan submission that demonstrates that a Serious PM 2.5 nonattainment area can attain a particular PM 2.5 NAAQS by the end of the tenth calendar year following the effective date of designation of the area with the implementation of control measures as required under § 51.1010(a) shall contain quantitative milestones to be achieved no later than milestone dates of 7.5 years and 10.5 years, respectively, from the date of designation of the area.
(ii) Except as provided in paragraph (a)(4) of this section, each attainment plan submission that demonstrates that a Serious PM 2.5 nonattainment area cannot practicably attain a particular PM 2.5 NAAQS by the end of the tenth calendar year following the date of designation of the area with the implementation of control measures required under § 51.1010(a) shall contain quantitative milestones to be achieved no later than milestone dates of 7.5 years, 10.5 years, and 13.5 years from the date of designation of the area. If the attainment date is beyond 13.5 years from the date of designation of the area, such attainment plan shall also contain a quantitative milestones to be achieved no later than milestone dates of 16.5 years, respectively, from the date of designation of the area.
(iii) The plan shall contain quantitative milestones to be achieved by the milestone dates specified in paragraphs (a)(2)(i) and (ii) of this section, as applicable, and that provide for objective evaluation of reasonable further progress toward timely attainment of the applicable PM 2.5 NAAQS in the area. At a minimum, each quantitative milestone plan must include a milestone for tracking progress achieved in implementing SIP control measures, including BACM and BACT, by each milestone date.
(3) Serious areas that fail to attain by the applicable Serious area attainment date. (i) Except as provided in paragraph (a)(4) of this section, each attainment plan submission for a Serious area that failed to attain a particular PM 2.5 NAAQS by the applicable Serious area attainment date and is therefore subject to the requirements of CAA section 189(d) and § 51.1003(c) shall contain quantitative milestones.
(A) If the attainment plan is due prior to a date 13.5 years from designation of the area, then the plan shall contain milestones to be achieved by no later than a milestone date of 13.5 years from the date of designation of the area, and every 3 years thereafter, until the milestone date that falls within 3 years after the applicable attainment date.
(B) If the attainment plan is due later than a date 13.5 years from designation of the area, then the plan shall contain milestones to be achieved by no later than a milestone date of 16.5 years from the date of designation of the area, and every 3 years thereafter, until the milestone date that falls within 3 years after the applicable attainment date.
(ii) The plan shall contain quantitative milestones to be achieved by the milestone dates for the area, and that provide for objective evaluation of reasonable further progress toward timely attainment of the applicable PM 2.5 NAAQS in the area. At a minimum, each quantitative milestone plan must include a milestone for tracking progress achieved in implementing the SIP control measures by each milestone date.
(4) Each attainment plan submission for an area designated nonattainment for the 1997 and/or 2006 PM 2.5 NAAQS before January 15, 2015, shall contain quantitative milestones to be achieved no later than 3 years after December 31, 2014, and every 3 years thereafter until the milestone date that falls within 3 years after the applicable attainment date.
(b) Not later than 90 days after the date on which a milestone applicable to a PM 2.5 nonattainment area occurs, each state in which all or part of such area is located shall submit to the Administrator a milestone report that contains all of the following:
(1) A certification by the Governor or Governor's designee that the SIP control strategy is being implemented consistent with the RFP plan, as described in the applicable attainment plan;
(2) Technical support, including calculations, sufficient to document completion statistics for appropriate milestones and to demonstrate that the quantitative milestones have been satisfied and how the emissions reductions achieved to date compare to those required or scheduled to meet RFP; and,
(3) A discussion of whether the area will attain the applicable PM 2.5 NAAQS by the projected attainment date for the area.
(c) If a state fails to submit a milestone report by the date specified in paragraph (b) of this section, the Administrator shall require the state to submit, within 9 months after such failure, a plan revision that assures that the area will achieve the next milestone or attain the applicable NAAQS by the applicable date, whichever is earlier. If the Administrator determines that an area has not met any applicable milestone by the milestone date, the state shall submit, within 9 months after such determination, a plan revision that assures that the area will achieve the next milestone or attain the applicable NAAQS by the applicable date, whichever is earlier.
§ 51.1014   Contingency measure requirements.
(a) The state must include as part of each attainment plan submitted under this subpart for a PM 2.5 nonattainment area specific contingency measures that shall take effect with minimal further action by the state or the EPA following a determination by the Administrator that the area has failed:
(1) To meet any RFP requirement in an attainment plan approved in accordance with § 51.1012;
(2) To meet any quantitative milestone in an attainment plan approved in accordance with § 51.1013;
(3) To submit a quantitative milestone report required under § 51.1013(b); or,
(4) To attain the applicable PM 2.5 NAAQS by the applicable attainment date.
(b) The contingency measures adopted as part of a PM 2.5 attainment plan shall meet all of the following requirements:
(1) The contingency measures shall consist of control measures that are not otherwise included in the control strategy or that achieve emissions reductions not otherwise relied upon in the control strategy for the area; and,
(2) Each contingency measure shall specify the timeframe within which its requirements become effective following a determination by the Administrator under paragraph (a) of this section.
(c) The attainment plan submission shall contain a description of the specific trigger mechanisms for the contingency measures and specify a schedule for implementation.
§ 51.1015   Clean data requirements.
(a) Nonattainment areas initially classified as Moderate. Upon a determination by the EPA that a Moderate PM 2.5 nonattainment area has attained the PM 2.5 NAAQS, the requirements for the state to submit an attainment demonstration, provisions demonstrating that reasonably available control measures (including reasonably available control technology for stationary sources) shall be implemented no later than 4 years following the date of designation of the area, reasonable further progress plan, quantitative milestones and quantitative milestone reports, and contingency measures for the area shall be suspended until such time as:
(1) The area is redesignated to attainment, after which such requirements are permanently discharged; or,
(2) The EPA determines that the area has re-violated the PM 2.5 NAAQS, at which time the state shall submit such attainment plan elements for the Moderate nonattainment area by a future date to be determined by the EPA and announced through publication in the Federal Register at the time EPA determines the area is violating the PM 2.5 NAAQS.
(b) Nonattainment areas reclassified as Serious. Upon a determination by the EPA that a Serious PM 2.5 nonattainment area has attained the PM 2.5 NAAQS, the requirements for the state to submit an attainment demonstration, reasonable further progress plan, quantitative milestones and quantitative milestone reports, and contingency measures for the area shall be suspended until such time as:
(1) The area is redesignated to attainment, after which such requirements are permanently discharged; or,
(2) The EPA determines that the area has re-violated the PM 2.5 NAAQS, at which time the state shall submit such attainment plan elements for the Serious nonattainment area by a future date to be determined by the EPA and announced through publication in the Federal Register at the time the EPA determines the area is violating the PM 2.5 NAAQS.
§ 51.1016   Continued applicability of the FIP and SIP requirements pertaining to interstate transport under CAA section 110(a)(2)(D)(i) and (ii) after revocation of the 1997 primary annual PM2.5NAAQS.
All control requirements associated with a FIP or approved SIP in effect for an area pursuant to obligations arising from CAA section 110(a)(2)(D)(i) and (ii) as of October 24, 2016, such as the CAIR or the CSAPR, shall continue to apply after revocation of the 1997 primary annual PM 2.5 NAAQS. Control requirements associated with a FIP or approved into the SIP pursuant to obligations arising from CAA section 110(a)(2)(D)(i) and (ii), including 40 CFR 51.123, 51.124, 52.35, 52.36, 52.38 and 52.39, may be modified by the state only if the requirements of § 51.123, 51.124, 52.35, 52.36, 52.38 and 52.39, including statewide annual SO 2 and annual NO X emission budgets, continue to be in effect. Any such modification must meet the requirements of CAA section 110(l).
§ 51.1100   Definitions.
The following definitions apply for purposes of this subpart. Any term not defined herein shall have the meaning as defined in 40 CFR 51.100.
(a) 1-hour NAAQS means the 1-hour primary and secondary ozone national ambient air quality standards codified at 40 CFR 50.9.
(b) 1997 NAAQS means the 1997 8-hour primary and secondary ozone national ambient air quality standards codified at 40 CFR 50.10.
(c) 2008 NAAQS means the 2008 8-hour primary and secondary ozone NAAQS codified at 40 CFR 50.15.
(d) 1-hour ozone design value is the 1-hour ozone concentration calculated according to 40 CFR part 50, appendix H and the interpretation methodology issued by the Administrator most recently before the date of the enactment of the CAA Amendments of 1990.
(e) 8-hour ozone design value is the 8-hour ozone concentration calculated according to 40 CFR part 50, appendix P.
(f) CAA means the Clean Air Act as codified at 42 U.S.C. 7401—7671q (2010).
(g) Attainment area means, unless otherwise indicated, an area designated as either attainment, unclassifiable, or attainment/unclassifiable.
(h) Attainment year ozone season shall mean the ozone season immediately preceding a nonattainment area's maximum attainment date.
(i) Designation for the 2008 NAAQS shall mean the effective date of the designation for an area for the 2008 NAAQS.
(j) Higher classification/lower classification. For purposes of determining whether a classification is higher or lower, classifications under subpart 2 of part D of title I of the CAA are ranked from lowest to highest as follows: Marginal; Moderate; Serious; Severe; and Extreme.
(k) Initially designated means the first designation that becomes effective for an area for the 2008 NAAQS and does not include a redesignation to attainment or nonattainment for the 2008 NAAQS.
(l) Maintenance area means an area that was designated nonattainment for a specific NAAQS and was redesignated to attainment for that NAAQS subject to a maintenance plan as required by CAA section 175A.
(m) Nitrogen Oxides (NO X ) means the sum of nitric oxide and nitrogen dioxide in the flue gas or emission point, collectively expressed as nitrogen dioxide.
(n) Ozone season means for each state, the ozone monitoring season as defined in 40 CFR part 58, appendix D, section 4.1(i) for that state.
(o) Applicable requirements for an area for anti-backsliding purposes means the following requirements, to the extent such requirements apply to the area pursuant to its classification under CAA section 181(a)(1) for the 1-hour NAAQS or 40 CFR 51.902 for the 1997 ozone NAAQS at the time of revocation of the 1997 ozone NAAQS:
(1) Reasonably available control technology (RACT) under CAA sections 172(c)(1) and 182(b)(2).
(2) Vehicle inspection and maintenance programs (I/M) under CAA sections 182(b)(4) and 182(c)(3).
(3) Major source applicability thresholds for purposes of RACT under CAA sections 172(c)(2), 182(b), 182(c), 182(d), and 182(e).
(4) Reductions to achieve Reasonable Further Progress (RFP) under CAA sections172(c)(2), 182(b)(1)(A), and 182(c)(2)(B).
(5) Clean fuels fleet program under CAA section183(c)(4).
(6) Clean fuels for boilers under CAA section 182(e)(3).
(7) Transportation Control Measures (TCMs) during heavy traffic hours as specified under CAA section 182(e)(4).
(8) Enhanced (ambient) monitoring under CAA section 182(c)(1).
(9) Transportation controls under CAA section 182(c)(5).
(10) Vehicle miles traveled provisions of CAA section 182(d)(1).
(11) NO X requirements under CAA section 182(f).
(12) Attainment demonstration requirements under CAA sections 172(c)(4), 182(b)(1)(A), and 182(c)(2).
(13) Nonattainment contingency measures required under CAA sections 172(c)(9) and 182(c)(9) for failure to attain the 1-hour or 1997 ozone NAAQS by the applicable attainment date or to make reasonable further progress toward attainment of the 1-hour or 1997 ozone NAAQS.
(14) Nonattainment NSR major source thresholds and offset ratios under CAA sections 172(a)(5) and 182(a)(2).
(15) Penalty fee program requirements for Severe and Extreme Areas under CAA section 185.
(16) Contingency measures associated with areas utilizing CAA section 182(e)(5).
(17) Reasonably available control measures (RACM) requirements under CAA section 172(c)(1).
(p) CSAPR means the Cross State Air Pollution Rule codified at 40 CFR 52.38 and part 97.
(q) CAIR means the Clean Air Interstate Rule codified at 40 CFR 51.123, 52.35 and part 95.
(r) NO X SIP Call means the rules codified at 40 CFR 51.121 and 51.122.
(s) Ozone transport region (OTR) means the area established by CAA section 184(a) or any other area established by the Administrator pursuant to CAA section 176A for purposes of ozone.
(t) Reasonable further progress (RFP) means both the emissions reductions required under CAA section 172(c)(2) which EPA interprets to be an average 3 percent per year emissions reductions of either VOC or NO X and CAA sections 182(c)(2)(B) and (c)(2)(C) and the 15 percent reductions over the first six years of the plan and the following three percent per year average under § 51.1110.
(u) Rate-of-progress (ROP) means the 15 percent progress reductions in VOC emissions over the first 6 years required under CAA section 182(b)(1).
(v) Revocation of the 1-hour NAAQS means the time at which the 1-hour NAAQS no longer apply to an area pursuant to 40 CFR 50.9(b).
(w) Revocation of the 1997 ozone NAAQS means the time at which the 1997 8-hour NAAQS no longer apply to an area pursuant to 40 CFR 50.10(c).
(x) Subpart 1 means subpart 1 of part D of title I of the CAA.
(y) Subpart 2 means subpart 2 of part D of title I of the CAA.
(z) I/M refers to the inspection and maintenance programs for in-use vehicles required under the 1990 CAA Amendments and defined by subpart S of 40 CFR part 51.
(aa) An area “ Designated nonattainment for the 1-hour ozone NAAQS” means, for purposes of 40 CFR 51.1105, an area that is subject to applicable 1-hour ozone NAAQS anti-backsliding requirements at the time of revocation of the 1997 ozone NAAQS.
(bb) Base year inventory for the nonattainment area means a comprehensive, accurate, current inventory of actual emissions from sources of VOC and NO X emitted within the boundaries of the nonattainment area as required by CAA section 182(a)(1).
(cc) Ozone season day emissions means an average day's emissions for a typical ozone season work weekday. The state shall select, subject to EPA approval, the particular month(s) in the ozone season and the day(s) in the work week to be represented, considering the conditions assumed in the development of RFP plans and/or emissions budgets for transportation conformity.
§ 51.1101   Applicability of part 51.
The provisions in subparts A-X of part 51 apply to areas for purposes of the 2008 NAAQS to the extent they are not inconsistent with the provisions of this subpart.
§ 51.1102   Classification and nonattainment area planning provisions.
An area designated nonattainment for the 2008 ozone NAAQS will be classified in accordance with CAA section 181, as interpreted in § 51.1103(a), and will be subject to the requirements of subpart 2 of part D of title I of the CAA that apply for that classification.
§ 51.1103   Application of classification and attainment date provisions in CAA section 181 to areas subject to § 51.1102.
(a) In accordance with CAA section 181(a)(1), each area designated nonattainment for the 2008 ozone NAAQS shall be classified by operation of law at the time of designation. The classification shall be based on the 8-hour design value for the area at the time of designation, in accordance with Table 1 below. A state may request a higher or lower classification as provided in paragraphs (b) and (c) of this section. For each area classified under this section, the attainment date for the 2008 NAAQS shall be as expeditious as practicable but not later than the date provided in Table 1 as follows:
Table 1—Classifications and Attainment Dates for 2008 8-Hour Ozone NAAQS (0.075 PPM) for Areas Subject to CFR Section 51.1102
* But not including
(b) A state may request, and the Administrator must approve, a higher classification for any reason in accordance with CAA section 181(b)(3).
(c) A state may request, and the Administrator may in the Administrator's discretion approve, a higher or lower classification in accordance with CAA section 181(a)(4).
(d) The following nonattainment areas are reclassified for the 2008 ozone NAAQS as follows: Serious—Ventura County, CA; Severe—Los Angeles-San Bernardino Counties (West Mojave Desert), Riverside County (Coachella Valley), and Sacramento Metro, CA; Extreme—Los Angeles-South Coast Air Basin, and San Joaquin Valley, CA.
§ 51.1104   [Reserved]
§ 51.1105   Transition from the 1997 ozone NAAQS to the 2008 ozone NAAQS and anti-backsliding.
(a) Requirements that continue to apply after revocation of the 1997 ozone NAAQS —(1) 2008 ozone NAAQS nonattainment and 1997 ozone NAAQS nonattainment. The following requirements apply to an area designated nonattainment for the 2008 ozone NAAQS and also designated nonattainment for the 1997 ozone NAAQS, or nonattainment for both the 1997 and 1-hour ozone NAAQS, at the time of revocation of the respective ozone NAAQS: The area remains subject to the obligation to adopt and implement the applicable requirements of § 51.1100(o), for any ozone NAAQS for which it was designated nonattainment at the time of revocation, in accordance with its classification for that NAAQS at the time of that revocation, except as provided in paragraph (b) of this section.
(2) 2008 ozone NAAQS nonattainment and 1997 ozone NAAQS maintenance. For an area designated nonattainment for the 2008 ozone NAAQS that was redesignated to attainment for the 1997 ozone NAAQS prior to April 6, 2015 (hereinafter a “maintenance area”) the SIP, including the maintenance plan, is considered to satisfy the applicable requirements of 40 CFR 51.1100(o) for the revoked NAAQS. The measures in the SIP and maintenance plan shall continue to be implemented in accordance with the terms in the SIP. Any measures associated with applicable requirements that were shifted to contingency measures prior to April 6, 2015 may remain in that form. After April 6, 2015, and to the extent consistent with any SIP for the 2008 ozone NAAQS and with CAA sections 110(l) and 193, the state may request that obligations under the applicable requirements of § 51.1100(o) be shifted to the SIP's list of maintenance plan contingency measures for the area.
(3) 2008 ozone NAAQS attainment and 1997 ozone NAAQS nonattainment. For an area designated attainment for the 2008 ozone NAAQS, and designated nonattainment for the 1997 ozone NAAQS as of April 6, 2015 or for both the 1997 and the 1-hour ozone NAAQS as of the respective dates of their revocations, the area is no longer subject to nonattainment NSR and the state may at any time request that the nonattainment NSR provisions applicable to the area be removed from the SIP. The state may request, consistent with CAA sections 110(l) and 193, that SIP measures adopted to satisfy other applicable requirements of § 51.1100(o) be shifted to the SIP's list of maintenance plan contingency measures for the area. The area's approved PSD SIP shall be considered to satisfy the state's obligations with respect to the area's maintenance of the 2008 ozone NAAQS pursuant to CAA section 110(a)(1).
(4) 2008 ozone NAAQS attainment and 1997 ozone NAAQS maintenance. An area designated attainment for the 2008 ozone NAAQS with an approved CAA section 175A maintenance plan for the 1997 ozone NAAQS is considered to satisfy the applicable requirements of 40 CFR 51.1100(o) through implementation of the SIP and maintenance plan provisions for the area. After April 6, 2015, and to the extent consistent with CAA sections 110(l) and 193, the state may request that obligations under the applicable requirements of 40 CFR 51.1100(o) be shifted to the list of maintenance plan contingency measures for the area. For an area that is initially designated attainment for the 2008 ozone NAAQS and which has been redesignated to attainment for the 1997 ozone NAAQS with an approved CAA section 175A maintenance plan and an approved PSD SIP, the area's approved maintenance plan and the state's approved PSD SIP for the area are considered to satisfy the state's obligations with respect to the area's maintenance of the 2008 ozone NAAQS pursuant to CAA section 110(a)(1).
(b) Effect of Redesignation or Redesignation Substitute. (1) An area remains subject to the anti-backsliding obligations for a revoked NAAQS under paragraphs (a)(1) and (2) of this section until either EPA approves a redesignation to attainment for the area for the 2008 ozone NAAQS; or EPA approves a demonstration for the area in a redesignation substitute procedure for a revoked NAAQS. Under this redesignation substitute procedure for a revoked NAAQS, and for this limited anti-backsliding purpose, the demonstration must show that the area has attained that revoked NAAQS due to permanent and enforceable emission reductions and that the area will maintain that revoked NAAQS for 10 years from the date of EPA's approval of this showing.
(2) If EPA, after notice-and-comment rulemaking, approves a redesignation to attainment, the state may request that provisions for nonattainment NSR be removed from the SIP, and that other anti-backsliding obligations be shifted to contingency measures provided that such action is consistent with CAA sections 110(l) and 193. If EPA, after notice and comment rulemaking, approves a redesignation substitute for a revoked NAAQS, the state may request that provisions for nonattainment NSR for that revoked NAAQS be removed, and that other anti-backsliding obligations for that revoked NAAQS be shifted to contingency measures provided that such action is consistent with CAA sections 110(l) and 193.
(c) Portions of an area designated nonattainment or attainment for the 2008 ozone NAAQS that remain subject to the obligations identified in paragraph (a) of this section. Only that portion of the designated nonattainment or attainment area for the 2008 ozone NAAQS that was required to adopt the applicable requirements in § 51.1100(o) for purposes of the 1-hour or 1997 ozone NAAQS is subject to the obligations identified in paragraph (a) of this section. Subpart C of 40 CFR part 81 identifies the areas designated nonattainment and associated area boundaries for the 1997 ozone NAAQS at the time of revocation. Areas that are designated nonattainment for the 1997 ozone NAAQS at the time of designation for the 2008 ozone NAAQS may be redesignated to attainment prior to the effective date of revocation of that ozone NAAQS.
(d) Obligations under the 1997 ozone NAAQS that no longer apply after revocation of the 1997 ozone NAAQS —(1) Second 10-year Maintenance plans. As of April 6, 2015, an area with an approved 1997 ozone NAAQS maintenance plan under CAA section 175A is not required to submit a second 10-year maintenance plan for the 1997 ozone NAAQS 8 years after approval of the initial 1997 ozone NAAQS maintenance plan.
(2) Determinations of failure to attain the 1997 and/or 1-hour NAAQS. (i) As of April 6, 2015, the EPA is no longer obligated to determine pursuant to CAA section 181(b)(2) or section 179(c) whether an area attained the 1997 ozone NAAQS by that area's attainment date for the 1997 ozone NAAQS.
(ii) As of April 6, 2015, the EPA is no longer obligated to reclassify an area to a higher classification for the 1997 ozone NAAQS based upon a determination that the area failed to attain the 1997 ozone NAAQS by the area's attainment date for the 1997 ozone NAAQS.
(iii) For the revoked 1-hour and 1997 ozone NAAQS, the EPA is required to determine whether an area attained the 1-hour or 1997 ozone NAAQS by the area's attainment date solely for anti-backsliding purposes to address an applicable requirement for nonattainment contingency measures and CAA section 185 fee programs. In making such a determination, the EPA may consider and apply the provisions of CAA section 181(a)(5) and former 40 CFR 51.907 in interpreting whether a 1-year extension of the attainment date is applicable under CAA section 172(a)(2)(C).
(e) Continued applicability of the FIP and SIP requirements pertaining to interstate transport under CAA section 110(a)(2)(D)(i) and (ii) after revocation of the 1997 ozone NAAQS. All control requirements associated with a FIP or approved SIP in effect for an area as of April 6, 2015, such as the NO X SIP Call, the CAIR, or the CSAPR shall continue to apply after revocation of the 1997 ozone NAAQS. Control requirements approved into the SIP pursuant to obligations arising from CAA section 110(a)(2)(D)(i) and (ii), including 40 CFR 51.121, 51.122, 51.123 and 51.124, may be modified by the state only if the requirements of §§ 51.121, 51.122, 51.123 and 51.124, including statewide NO X emission budgets continue to be in effect. Any such modification must meet the requirements of CAA section 110(l).
(f) New source review. An area designated nonattainment for the 2008 ozone NAAQS and designated nonattainment for the 1997 ozone NAAQS on April 6, 2015 remains subject to the obligation to adopt and implement the major source threshold and offset requirements for nonattainment NSR that apply or applied to the area pursuant to CAA sections 172(c)(5), 173 and 182 based on the highest of: (i) The area's classification under CAA section 181(a)(1) for the 1-hour NAAQS as of the effective date of revocation of the 1-hour ozone NAAQS; (ii) the area's classification under 40 CFR 51.903 for the 1997 ozone NAAQS as of the date a permit is issued or as of April 6, 2015, whichever is earlier; and (iii) the area's classification under § 51.1103 for the 2008 ozone NAAQS. Upon removal of nonattainment NSR obligations for a revoked NAAQS under § 51.1105(b), the state remains subject to the obligation to adopt and implement the major source threshold and offset requirements for nonattainment NSR that apply or applied to the area for the remaining applicable NAAQS consistent with this paragraph.
§ 51.1106   Redesignation to nonattainment following initial designations.
For any area that is initially designated attainment for the 2008 ozone NAAQS and that is subsequently redesignated to nonattainment for the 2008 ozone NAAQS, any absolute, fixed date applicable in connection with the requirements of this part other than an attainment date is extended by a period of time equal to the length of time between the effective date of the initial designation for the 2008 ozone NAAQS and the effective date of redesignation, except as otherwise provided in this subpart. The maximum attainment date for a redesignated area would be based on the area's classification, consistent with Table 1 in § 51.1103.
§ 51.1107   Determining eligibility for 1-year attainment date extensions for the 2008 ozone NAAQS under CAA section 181(a)(5).
(a) A nonattainment area will meet the requirement of CAA section 181(a)(5)(B) pertaining to 1-year extensions of the attainment date if:
(1) For the first 1-year extension, the area's 4th highest daily maximum 8 hour average in the attainment year is 0.075 ppm or less.
(2) For the second 1-year extension, the area's 4th highest daily maximum 8 hour value, averaged over both the original attainment year and the first extension year, is 0.075 ppm or less.
(b) For purposes of paragraph (a) of this section, the area's 4th highest daily maximum 8 hour average for a year shall be from the monitor with the highest 4th highest daily maximum 8 hour average for that year of all the monitors that represent that area.