# I dentification of Nonattainment
Classification and Deadlines for Submission of State Implementation Plan (SIP) Provisions for the 1997 Fine Particle (PM 2.5 

# ) National Ambient Air Quality Standard (NAAQS) and 2006 PM 2.5 

# NAAQS

Response to Comments(This page intentionally left blank.)

# I dentification of Nonattainment Classification and

Deadlines for Submission of State Implementation Plan (SIP) Provisions for the 1997 Fine Particle (PM 2.5 

# ) National Ambient Air Quality Standard (NAAQS) and 2006 PM 2.5 

# NAAQS

Response to Comments

S tate and Local Programs Group Air Quality Policy Division Office of Air Quality Policy and Standards U. S. Environmental Protection Agency Research Triangle Park, NC 27711

May 201 41



### I dentification of Nonattainment Classification and Deadlines for Submission of State Implementation Plan (SIP) Provisions for the 1997 Fine Particle (PM 2.5 

### ) National Ambient Air Quality Standard (NAAQS) and 2006 PM 2.5 

### NAAQS

Responses to Comments

A. Comment Letters Received

The Environmental Protection Agency ( EPA or the Agency) received sixteen comment letters in response to the propos ed rule titled, “Identification of Nonattainment Classification and Deadlines for Submission of State Implementation Plan (SIP) Provisions for the 1997 Fine Particle (PM 2.5 ) National Ambient Air Quality Standard (NAAQS) and 2006 PM 2.5 NAAQS” (78
F ed. R eg. 69806 , November 21, 2013 )

. The EPA received the following comment letters :

1. Letter dated December 6, 2013 from Jeremy Nichols, Climate and Energy Program Director, WildEarth Guardians, to Air and Radiation Docket and Information Center.
Re: Docket ID No. EPA

- HQ

- OAR

- 2013

- 0694, Proposed Rule, Identification of Nonattainment Classification and Deadlines for Submission of State Implementation
Plan Provisions for the 1997 and 2006 Fine Particle National Ambient Air Quality
Standards.
2. Letter dated December 11, 2013 from Michael G. Dowd, Director, Air Division, Virginia Department of Environmental Quality, to Air and Radiation Docket and Information Center. Re: Comments on Proposed R ule

– Docket ID No. EPA

- HQ

OAR

- 2013

- 0694.
3. Email dated December 14, 2013 from Joseph Eugene (Gene) McGill to Group A

AND

- R

- DOCKET. Subject: Docket ID No. EPA

- HQ

- OAR

- 2013

- 0694; Fairbanks
PM 2.5 nonattainment.
4. Email dated December 15, 2013 from Julie Mellum

, Organizer, Take Back the Air, to Group A

- AND

- R

- DOCKET. Subject: Docket ID No. EPA

- HQ

- OAR

- 2013

- 0694.
5. Email dated December 18, 2013 from Brenda Wilbur to Group A

- AND

- R

- DOCKET

. Subject: Docket ID No. EPA

– HQ

- OAR2013

- 0694.
6. Letter dated December 18, 2013 from L issa Hughes, Conservation Advocacy Director, Northern Alaska Environmental Center. Re: Docket ID No. EPA

- HQ

- OAR

2013

- 0694.
7. Letter dated December 20, 2013 from Bart Sponseller, Bureau of Air Management

– Director, Wisconsin Department of Natural Resources, to Air and Radiation Docket and Information Center. Re: State of Wisconsin Comments Regarding EPA’s Proposed Identification of Nonattainment Classification and Deadlines for Submission of State Implementation Plan (SIP) Provisions for the 1997 Fine Particl e (PM2.5) National Ambient Air Quality Standard (NAAQS) and 2006 PM2.5 NAAQS.2

8. Email dated December 23, 2013 from Patrice Lee to Group A

- AND

- R

- DOCKET. Subject: Against proposed delay in the SIP for Alaska.
9. Letter dated December 23, 2013 from Larry Hartig, C ommissioner, Alaska Department of Environmental Conservation, to Air and Radiation Docket and
Information Center . Re: Docket ID No. EPA

- HQ

- OAR

- 2013

- 0694.
10. Letter dated December 23, 2013 from E. Christopher Abruzzo, Secretary, Pennsylvania Department of Envi ronmental Protection, to EPA Docket Center (EPA/DC). Re: Identification of Nonattainment Classification and Deadlines for Submission of State Implementation Plan (SIP) Provisions for the 1997 Fine Particle (PM 2.5 ) National Ambient Air Quality Standards (NA AQS) and 2006 PM 2.5 NAAQS: Proposed Rule.
11. Letter dated December 23, 2013 from Samir Sheikh, Director of Strategies and Incentives, San Joaquin Valley Air Pollution Control District, to Air and Radiation
Docket and Information Center. Re: Docket No. EPA

- HQ

- OAR

- 2013

- 0694:
Comments on Identification of Nonattainment Classification and Deadlines for Submission of State Implementation Plan (SIP) Provisions for the 1997 Fine Particle (PM2.5) National Ambient Air Quality Standard (NAAQS) and 2006 PM2.5 NAAQ S; Proposed Rule (78 FR 69806, November 21, 2013).
12. Letter dated December 23, 2013 from Paul Cort, EarthJustice, to Air and Radiation
Docket and Information Center . Re: Proposed Identification of Nonattainment
Classification and Deadlines for Submission of Fine Particle State Implementation Plan Provisions, 78 Fed. Reg. 69,806 (Nov. 21, 2013).
13. Letter dated December 23, 2013 from Lucinda Minton Langworthy, Counsel for the Utility Air Regulatory Group, Hunton & Williams LLP, to Air and Radiation Docket
and Inf ormation Center. Re: Proposed Rule on Identification of Nonattainment Classification and Deadlines for Submission of State Implementation Plan (SIP) Provisions for the 1997 Fine Particle (PM 2.5 ) National Ambient Air Quality Standard (NAAQS) and 2006 PM 2.5 NAAQS.
14. Email from Joro Walker, Western Resource Advocates, to Group A

- AND

- R

DOCKET. Subject: Docket ID No. EPA

- HQ

- OAR

- 2013

- 0694.
15. Email from Clean Air Fairbanks, on behalf of 145 signatories, to Group A

- AND

- R

DOCKET. Subject: Docket ID No. EPA

- HQ

- OAR

- 2013

- 0 694.
16. Email from Jennifer Gleason Schmidt and Terry R. Schmidt

, to Group A

- AND

- R

DOCKET

. Subject : Docket ID No. EPA

- HQ

- OAR

- 2013

- 0694.



### B. Comments

Comment 1: The Virginia Department of Environmental Quality (VA DEQ) commented that the rule does not clearly identify the areas to which it applies. VA DEQ believes that the rule should only apply to areas for which the EPA has not yet made a determination of attai nment (“clean data determination”).

Response: The EPA identified in the proposal areas that appear to be most affected by this rule.
These include areas for which states have not submi t ted a SIP and for which the EPA has not yet
made a deter mination of attainment of the 1997 or 2006 PM 2.5 NAAQS or for which states have not yet submitted a request for redesignation to attainment for the PM 2.5 NAAQS. The listed areas are those for which the rule will likely have the most impact, but the y are not the only areas affected by the rule. There are other areas currently designated nonattainment for the 1997 and/or3

2006 PM 2.5 NAAQS for which states likely will need to submit additional SIP elements to meet the applicable requirements of subpart 4 of Part D, title I, of the Clean Air Act ( CAA or the Act) and to submit SIPs addressing the nonattainment new source review ( N NSR ) r equirements in subpart 4. Whether, and to what extent, any additional submissions are needed for a particular
1997 or 2006 PM 2.5 NAAQS nonattainment area will depend upon the circumstances of each
individual nonattainment area. T he EPA will continue working with states on a case

- by

- case basis to assist them in addressing subpart 4 requirements. For help with questions or further clarification, states should consult with their res pective EPA regional offices.

Comment 2: Earthjustice and WildEarth Guardians (WEG) commented that the classification of
PM 2.5 nonattainment areas as “ M oderate” occurs by operation of law upon an area’s designation
as nonattainment . The c ommenters allege that the classification of areas as “ M oderate” does not require any EPA action beyond the initial designation of an area as nonattainment.

Response: The EPA agrees that subpart 4, section 188, provides that all areas designated nonattainment are initially classified “by operation of law” as “ M oderate” nonattainment areas. However, as explained in the proposal, the D.C. Circuit’s ruling in Natural Resources Defense Council v. EPA, 706 F.3d 428 (D.C. Cir. 2013) (hereafter “ NRDC ”) requiring implementation of

t he PM 2.5 NAAQS under subpart 4 did not occur until years after the areas were initially designated nonattainment under subpart 1 of Part D, title I, of the Act. As the EPA explained in the proposal, the NRDC holding that the EPA erred in implem enting the 1997 PM 2.5 NAAQS solely pursuant to subpart 1 should not be applied retroactively. Nonattainment area designations for all areas became effective many years before the 2013 NRDC decision. See 70 FR 944, January 5, 2005; 74 FR 58688, November 13, 2009; 76 FR 6056, February 3, 2011. Prior to the
NRDC decision, the EPA had implemented the 1997 and 2006 PM 2.5 NAAQS based on the general implementation provisions of subpart 1. Subpart 1 contains no nondiscretionary provision for classification of nonat tainment areas, and the EPA did not identify any classifications for areas designated nonattainment. Therefore, the EPA disagrees that areas were classified as “ M oderate” at the time of their designation. Under the interpretation that prevailed during years of implementation prior to the D.C. Circuit’s 2013 ruling, no classifications were identified or recognized, nor were subpart 4 classifications implemented. In accordance with the
NRDC decision, and because the EPA has not previousl y identified nonattainment area classifications under subpart 4 for areas designated nonattainment for the 1997 and 2006 PM 2.5 standards, the EPA identifies the classification of all areas currently designated nonattainment
fo r the PM 2.5 NAAQS as “Moderate” to clarify the current classification of areas.

Comment 3: Earthjustice comment ed that the EPA does not have authority to reset the deadlines
for states to submit SIPs complying with subpa rt 4 requirements. The C A A provides that states
with M oderate nonattainment areas are required to submit plans “18 months after the designation as nonattainment.” 42 USC § 7513a(a)(2)(B). Earthjustice believes states with areas designat ed
nonattainment for the 1997 PM 2.5 NAAQS should have submitted their M oderate area plans by October 5, 2006. Earthjustice asserted that a plan for the West Central Pinal area in Arizona for
the 2006 PM 2.5 standard was due September 7, 2012, and that for all other areas designated
nonattainment for the 2006 PM 2.5 standard, plans should have been submitted no later than June 14, 2011.

Similarly, WEG commented that the EPA has no discretion to modify the dead line for
SIP submission s under subpart 4. The C A A requires that M oderate nonattainment area SIPs be submitted within 18 months of the area being designated. Even if such discretion existed, and4

WEG believes that it does not, its exercise would be constrained by the date of the NRDC decision, so the deadline for M oderate area submissions should be no later than July 4, 2014.

Utah Physicians for a Healthy Environment and Western Resources Advocates commented that they oppose the EPA establishing Dec ember 31, 2014, as the deadline for states to submit any additional attainment

- related SIP elements. Similarly, Clean Air Fairbanks, Patrice and Guy Lee, Joseph Eugene McGill, the Northern Alaska Environmental Center (NAEC), Jennifer Gleason Schmidt, Terry Schmidt, and Take Back the Air commented that the EPA should not “extend the deadline” for states to submit plans meeting the requirements of subpart
4.

Response: The EPA disagrees with the commenters. In 2013, the D.C. Circuit Court of Appeals
held that the EPA erred in applying only the provisions of subpart 1, rather than also subpart 4, to implement the PM 2.5 NAAQS. It is the EPA’s position that the NRDC decision does not apply retroactively to create an obligation in the past for states to have submit ted implementation plans under subpart 4 demonstrating attainment of the PM 2.5 NAAQS. Prior to the c ourt’s decision, the prevailing implementation rulemaking instructed states to submit plans solely under subpart 1.
The D.C. Circuit C ourt of A ppeals did not vacate this rule. Nor did the c ourt compel the EPA to treat the deadlines for the obligations the c ourt announced in its decision as already having lapsed, and the states as if they had already failed to meet these obligations. Instead, the court
remanded the rules at issue to the EPA for repromulgation un der subpart 4. Thus, the NRDC decision directed that the EPA act prospectively to implement the PM 2.5 NAAQS under subpart 4 through one or more national rulemakings consistent with the NRDC decision. This action is one such rulemaking.

Because of the complexity of the Act’s SIP provisions and the interrelationship between federal and state action, the EPA believes it is inappropriate to impose retroactive effect on
decisions i n a manner that would create deadlines that have long passed. Courts have supported this position. For example, in Sierra Club v. Whitman , 285 F.3d 63 (D.C. Cir. 2002), the D.C. Circuit Court of Appeals addressed an EPA failure to make a timely determinati on of failure to attain the applicable ozone NAAQS and to reclassify the St. Louis, Missouri area. Id . at 65. Reclassification would have resulted in requirements for the area to submit new attainment plans.
Id . The court ruled that the EPA was required to make the determination, but expressly rejected
the Sierra C lub’s request to consider the area as reclassified as of the date that the EPA’s
determination should have been made. Id . at 67

- 68. The court refused to impose the statutory deadline for SIP submittals when that deadline had passed long before the court’s decision. Id . at 67

- 68. The court noted that backdating the EPA’s determination would only make the situation worse by likely imposing large costs on the s tates fo r failing to develop SIPs years earlier even though the s tates were not on notice at the time of their obligation to do so. Id . at 68.

The historical context of the implementation of these standards deviates from the course contemplated by the statute. The NRDC decision has essentially changed the course of implementation of the standard in mid

- stream. This rulemaking is not an ex tension of the deadline established by the EPA when it was implementing the PM 2.5 standards according to subpart 1. Rather, this rulemaking makes that deadline no longer operative, since the EPA is no longer following only subpart 1 to implement the PM 2.5 standard s . Under the unique circumstances presented here, the EPA relies on its authority under section 301 of the CAA to establish a reasonable deadline, of December 31, 2014, by which states must submit SIPs consistent with the subpart 4 requirements. In determining a deadline, the EPA considered: the5

amount of time that has passed since the NRDC decision, when this rulemaking will be finalized, and the amount of time remaining before the 2006 PM 2.5 NAAQS attainment deadline under subpart 4 for most areas of December 31, 2015. 1 The EPA is balancing the desire to allow states a reasonable amount of time to develop SIP submissions that conform to subpart 4 requirements, while leaving enough time before the 2006 PM 2.5 NAAQS attainment date so that state plans have time to be implemented and work. In consideration of all of these circumstances, the EPA believes December 31, 2014 is a reasonable deadline.

Comment 4: UARG commented that the EPA should allow states 18 months to submit any remaining SIP planning requirements and N NSR SIP submissions required pursuant to subpart 4 “after the effective date of the classifications” of all PM 2.5 nonattainment areas as M oderate. San Joaquin Valley Air Pollution Con trol District (APCD) commented that the EPA should allow

states 18 months to submit any remaining SIP planning requirements and N NSR SIP submissions required pursuant to subpart 4. VA DEQ commente d that the deadline for states to submit any remaining SIP planning requirements and N NSR SIP submissions required pursuant to subpart 4 should be “three years from final publication of a rule that clearly delineates the CAA mandates for SIP planning and N NSR requirements of PM 2.5 [M] oderate nonattainment areas,” instead of December 31, 2014.

Response: The EPA disagrees with the se comment s . Subpart 4, section 188, provides that states are to submit required plans 18 months after an area is designated nonatt ainment. However, the
NRDC case was not decided until years after areas were designated nonattainment under subpart
1 of the Act. Although the statute provides states 18 months from designation to develop and submit plans, in light of the timing and substance of the D

. C

. Circuit opinion, the EPA believes that states should be provided a reasonable opportunity to submit any remaining SIP planning requirements and N NSR SIP submissions required pursuant to subpart 4. The EPA belie ves that setting the deadline for such submissions as December 31, 2014 provides a relatively brief but reasonable amount of time for states to ascertain whether and to what extent any addition al submissions are needed for a particular nonattainment area, and to develop, adopt, and submit any such plans. The EPA balanced several considerations in determining that December 31, 2014 is an appropriate date, as explained in the response to comment 3.

The EPA is particularly concerned that an appropriate balanc e would not be achieved by adopting a submission deadline “three years from final publication of a rule that clearly delineates the CAA mandates for SIP planning and N NSR requirements of PM 2.5 [M] oderate
nonattainment areas

, ” as suggested by VA DEQ. Becaus e the Act provides states 18 months to submit required plans after an area is designated nonattainment under normal circumstances, the EPA believes there is no basis to provide states three years from finalization of another rule.

Additionally, the EPA notes that it has already provided information regarding subpart 4 requirements for plans developed for PM 2.5 M oderate nonattainment areas. The EPA directs interested parties to its longstanding general guidance, which makes recommendations to stat es for meeting the statutory requirements for SIPs for nonattainment areas. See “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990” (57 FR 13498, April 16, 1992) (hereafter “ 1992 General Preamble”);

1 The EPA designation for the West Central Pinal area in Arizona as nonattainment for the 2006 PM 2.5 NAAQS became effective March 7, 2011. See 76 FR 6056, February 3, 2011. Therefore, the latest attainment date applicable to this area under subpart 4 is Dec ember 31, 2017.6

“State Implementation Plans for Serious PM

- 10 Nonattainment Areas, and Attainment Date
Waivers for PM

- 10 Nonattainment Areas Generally; Addendum to the General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990” (59 FR 41998, August 16, 1994) (hereafter “1994 Addendum”). This guidance includes a discussion of the subpart 1 and subpart 4 requirements.

Comment 5: One comment letter from Fairbanks, Alaska requested that the EPA extend the
deadline for states like Ala ska to submit SIPs to address noncompliance with the 2006 PM 2.5 NAAQS. The commenters requested that the EPA consider extending the deadline, due to what the commenter described as the challenging conditions that arise in the area, including cold, periodic windstorms, summer forest fires, winter ice fog, and the reliance on woodstoves and coal for heating.

Response: The EPA recognizes and appreciates that diverse regions throughout the country confront different challenges in their efforts to attain the PM 2.5 NAAQS. Both the statute and EPA regulations and policy provide a range of methods for taking these differing circumstances into account, including, but not limited to, identifying and appropriately accounting f or changes in air quality due to exceptional events, determining that an area should be reclassified to a
S erious classification, and determining that an attainment deadline should be extended to allow
for additional time to meet t he standards. At this t ime, however, the EPA believes that initially all states, including the s tate of Alaska, should be required to meet the 2014 deadline for submission of a SIP addressing subpart 4 requirements for the PM 2.5 standard s

. This will not preclude the s tate from raising the issues set forth by the commenter, nor will it preclude the EPA from considering them in the future. The EPA does not believe it would be appropriate to
extend the SIP submission deadline for an individual area. Give n the time that has already passed since area designations as a result of the shift in implementation resulting from the NRDC decision, the EPA concludes that all areas should submit initial plans by Dec ember 31, 2014, addressing individual ar ea concerns such as those raised by the commenter during the implementation process. Therefore

, the EPA declines at this stage to extend the date for
submission of the SIP.

Comment 6: Utah Physicians for a Healthy Environment and Western Resources Advocates commented that the EPA’s proposal to establish the December 31, 2014 deadline will delay the implementation of RACT

, which is “untenable.”

Response: As explained in the proposal and in the summary of the final rule , this rulemaking only identifies: (1) the classification under subpart 4 of areas currently designated nonattainment
for the 1997 and/or 2006 PM 2.5 standards; (2) the deadline for states to submit any remaining SIP planning requirements and N NSR SIP submissions required pursuant to subpart 4; and (3) the EPA guidance and releva nt rulemakings that are currently available regarding implementation of subpart 4 requirements. This rulemaking is not intended to address the timeline for the implementation of reasonably available control measures (RACM), including reasonably available control technology (RACT)

, under subpart 4, although the EPA may undertake a future rulemaking on this issue.

Comment 7: The Wisconsin Department of Environmental Protection commented in supp ort of their understanding that the rulemaking would not apply to PM 2.5 nonattainment areas for which complete redesignation applications have been submitted to the EPA.7

Response : The EPA in this response seeks to clarify how the EPA considers the applica tion of the rulemaking for areas that have submitted complete redesignation requests. First, as a general matter, pursuant to section 175A(c), p art D requirements , including those under subparts 1 and 4,
remain in effect until the EPA approves a redesignation request and an area is redesignated to attainment. However, for purposes of evaluating whether a redesignation request is approvable and meets the requirements of section 107(d)(3)(E)(ii) and (v), the EPA’s longstanding interp retation of section 107(d)(3)(E) of the CAA is that, as a threshold matter, the part D provisions which are “applicable” and which must be approved in order for the EPA to redesignate an area include only those which came due prior to a state’s submittal o f a complete redesignation request. 78 FR 20856, 20861. See also “Procedures for Processing Requests to Redesignate Areas to Attainment,” Memorandum from John Calcagni, Director, Air Quality Management Division, September 4, 1992. Sierra Club v. EPA, 375 F.3d 537 (7th Cir. 2004). To the extent that implementation under subpart 4 would impose additional requirements for areas designated nonattainment, the EPA believes that those requirements are not “applicable” for the purposes of CAA section 107(d)(3)(E) in any area that has submitted a complete redesignation request prior to the due date for these requirements, and thus the EPA is not required to consider subpart 4 requirements with respect to areas that have submitted a complete redesignation request pr ior to December 31, 2014. Applicable requirements of the CAA that come due subsequent to the area’s submittal of a complete redesignation request remain applicable until a redesignation is approved, but are not re quired as a prerequisite to redesignation.

Comment 8: UARG commented “that Subpart 4 requirements should not be applied retroactively to areas that have already attained, or that have SIPs that the EPA has determined are adequate to attain, the 1997 and 2006 PM 2.5 NAAQS.” The c ommenter believes th at requiring otherwise would impose undue planning burdens on the states.

Response : As stated previously, t he EPA agrees that no requirements of subpart 4 should be applied retroactively

. However, the EPA disagrees with the c ommenter’s conclusion that under no circumstances should any additional submissions under subpart 4 be required of any area that
has attained the PM 2.5 NAAQS or for which the EPA has approved attainment plans. The EPA wishes to clarify that this rulemaking does not a ffect any action previously taken by the EPA under section 110(k) of the Act on a SIP for a PM 2.5 nonattainment area. However, this does not necessarily mean that areas for which the EPA has previously approved attainment
demonstration or N NSR plans have m et all requirements of the Act. States may need to submit additional SIP planning requirements and N NSR SIP elements to show that they meet all of the applicable requirements of subpart 4. As explained in the EPA’s response to comment 1 and
section I V of the final rule , whether, and to what extent, any additional submissions are needed for a particular 1997 or 2006 PM 2.5 NAAQS nonattainment area will depend upon the circumstances of each individual nonattainment area. States may owe additional submis sions for any area currently designated nonattainment.

The EPA does not believe that this rule places undue planning burdens on states. Because the EPA is now incorporating subpart 4 along with subpart 1 in implementation of the PM 2.5 NAAQS as required by the NRDC decision, states need to ensure that they have submitted all plan element s to the EPA that are necessary to meet the requirements of both subparts. Through this rulemaking, the EPA is establishing a deadline for this submission to allow states a

r easonable period of time to take any required action to meet subpart 4.8

Comment 9: San Joaquin Valley APCD commented to request that the EPA develop guidance regarding how nonattainment areas may be reclassified.

Response: As explained in the summary of the final rule

, the limited purpose of this rulemaking is to identify: (1) the classification under subpart 4 of areas currently designated nonattainment
for the 1997 and/or 2006 PM 2.5 standards; (2) the deadline for states to submit any rem aining SIP planning requirements and N NSR SIP submissions required pursuant to subpart 4; and (3) the EPA guidance and relevant rulemakings that are currently available regarding implementation of subpart 4 requirements. This rulemaking is not intended to address all issues that arise during implementation, but rather answer preliminary questions to facilitate the shift in implementation solely under subpart 1 to also under subpart 4.

However, the EPA in this response will clarify how the Act gove rns area classifications under subpart 4. Subpart 4, section 188, provides that all areas designated nonattainment shall initially be classified as M oderate by operation of law. In accordance with the NRDC decision, and because the EPA has not previously i dentified nonattainment area classifications under subpart 4 for areas designated nonattainment for the 1997 and 2006 PM 2.5 standards, the EPA
identifies all areas as M oderate in this rulemaking to clarify the current classification of areas. At some future time, the EPA may reclassify as S erious any nonattainment area that the EPA determines cannot practicably attain the PM 2.5 NAAQS by the applicable attainment date. An

area may also be reclassified as a S erious area by operation of law if the Administrator
determines that an area has not in fact attained the PM 2.5 NAAQS after the applicable attainment date has passed. In t he 1992 General Preamble, the EPA has previously addressed the requirements of section 188 concerning classifications under subpart 4, including the issue of discretionary and mandatory reclassification from M oderate to S erious. See 57 FR 13498, at
13537

- 8.

Comment 10: Earthjustice commented that this r ulemaking should identify Libby, MT, San Joaquin Valley, CA, and the Los Angeles

- South Coast Air Basin, CA

, as having failed to attain
the 1997 PM 2.5 standards by the statutory attainment deadline and explain that the areas were reclassified by operation o f law as S erious. 42 U.S.C. § 7513(b)(2). Earthjustice asserted that these are areas designated nonattainment for the 1997 PM 2.5 standard s for which the EPA has not
made an attainment (“clean data”) determination and which have not submitted a redesignatio n request. The commenter argues that the attainment date for M oderate nonattainment areas is “the end of the sixth calendar year after the area’s designation as nonattainment.” 42 U.S.C. § 7513(c)(1). According to the commenter, the attainment deadline for areas designated in 2005 as
nonattainment for the 1997 PM 2.5 NAAQS was December 31, 2010. The commenter asserts that the EPA was thus required to determine by June 30, 2011 whether areas had attained the relevant standard. 42 U.S.C. § 7513(b)( 2). Because the named areas have no clean data determination and no submitted redesignation request for the 1997 PM 2.5 standards, the commenter states that these
areas should have been reclassified as S erious by operation of law. 42 U.S.C. § 7513(b)(2). Th e commenter argued that the EPA’s identification of the named areas as M oderate “is not only unlawful but also bad policy.”

Response : As explained in the proposal and in the EPA’s response to comment 3, the EPA
believes that the D.C. Circuit Court’s 2013 h olding in NRDC that the EPA erred in implementing
the 1997 PM 2.5 NAAQS solely pursuant to subpart 1 should not be applied retroactively. Prior to
the NRDC decision, the EPA had impleme nted the 1997 PM 2.5 NAAQS based on the provisions of subpart 1. States w ith areas designated nonattainment for the 1997 PM 2.5 standard s had9

previously been instructed by the EPA, prior to the NRDC decision, to implement and attain the
1997 PM 2.5 standard s ac cording to the general implementation provisions of subpart 1 as provi ded in the EPA’s implementation rules. The EPA therefore disagrees that Libby, MT, San Joaquin Valley, CA, and the Los Angeles

- South Coast Air Basin, CA, were required to attain the
1997 PM 2.5 standard s no later than December 31, 2010. Accordingly, the EPA disagrees that it had a mandatory duty to determine by June 30, 2011, whether the named areas had attained the
1997 PM 2.5 standard s . As of that date, the EPA was implementing the 1997 PM 2.5 standard s pursuant solely to subpart 1, and no c ourt had ruled that the EPA or any state should implement
the PM 2.5 standard s also under the provisions of subpart 4.

Subpart 1 contains no nondiscretionary provision for classification of nonattainment

areas. In its prior implementation of the 1997 PM 2.5 standard s , the EPA did not identify any
classifications for areas under the 1997 PM 2.5 standard s

. The EPA therefore disagrees that Libby, MT, San Joaquin Valley, CA, and the Los Angeles

- South Coast Air Basin, CA s were reclassified “by operation of law” as S erious n o later than June 30, 2011. Because under the EPA’s prior approach it did not identify nonattainment area classifications, the EPA is undertaking this rulemaking to identify the initial classification under subpart 4 for all areas designated
nonattainment for the PM 2.5 standards as M oderate.

At some future time, the EPA may reclassify as S erious any nonattainment area that the EPA determines cannot practicably attain the PM 2.5 NAAQS by the applicable attainment date. These areas may also be reclassified as S erious by operation of law if the Administrator
determines that the area has not in fact attained the 1997 PM 2.5 NAAQS after each area’s applicable attainment date has passed.

Comment 11: Earthjustice further claimed that Libby, MT, San Joaquin Valley, CA, and the Los Angeles

- South Coast Air Basin, CA

, should be required to submit M oderate area and S erious area plans for the 1997 PM 2.5 standard s that satisfy the subpart 4 requirements, based on their contention (see Comment 10 ) that these areas should have been reclassified as S erious areas for
the 1997 PM 2.5 NAAQS. Earthjustice contends that these plans should have been due to the EPA by December 31, 2013 under 42 U.S.C. § 7513 a (b)(2).

Response: As set forth in the EPA’s respo nse to comment 10, the EPA disagrees that Libby, MT, San Joaquin Valley, CA, and the Los Angeles

- South Coast Air Basin, CA

, should be classified

as S erious areas. Because these areas are classified as M oderate, and not S erious, the affected states are requ ired at this time to submit plans for these areas that satisfy 42 U.S.C. § 7513a(a) and not 42 U.S.C. § 7513a(b)(1).

Comment 12: San Joaquin Valley APCD and VA DEQ commented that more specific information is needed from the EPA headquarters regarding the r equirements of subpart 4 for
submissions for PM 2.5 M oderate areas . VA DEQ particularly requested that the EPA undertake a rulemaking to “delineate what attainment

- related and [N] NSR requirements will be mandated by

a [M] oderate designation.”

Response: The EPA notes that the Act does not impose a requirement on the EPA to promulgate an implementation rule for each NAAQS

. Nat’l Ass’n of Manufacturers v. EPA , 2014 U.S. App.
LEXIS 8726

, May 9 , 201 4 ( D

. C Cir .). In the context of the unique circumstances presented here, the EPA seeks to respond in a timely way to the D.C. Circuit’s NRDC decision and to enable

s tates similarly to respond to the c ourt’s decision that subpart 4 applies to implementation of

PM 2.5 . Thu s the EPA’s purpose is to provide sufficient notice and information to enable the s tates10

to move forward in complying with the directive of the c ourt. This rulemaking is not intended to address all issues that would be germane to an implementation rule, bu t rather answer preliminary questions that arise in the shift in implementation solely under subpart 1 to also
under subpart 4.

The EPA agrees that guidance to states is helpful to clarify requirements, and to respond more comprehensively to the c ourt’s r emand, but the EPA believes that this rulemaking,
combined with the EPA’s longstanding general guidance interpreting the requirements of subpart 4 of the CAA, provide s an adequate basis for states to develop M oderate area attainment plans
and N NSR plans. See 1992 General Preamble; 1994 Addendum. In the 1992 General Preamble, the EPA discussed the relationship of subpart 1 and subpart 4 SIP requirements, and pointed out that subpart 1 requirements were to an extent “subsumed by, or integrally related to, th e more specific” subpart 4 requirements. 57 FR at 13538. Moreover, subsequent to the NRDC decision,
the EPA has issued rulemakings for individual areas in which the EPA has further elaborated on the relationship of subpart 1 and subpart 4 requirements in t he context of making determinations
of attainment for areas that have attained the 1997 PM 2.5 standard s , approving requests to redesignate areas to attainment or approving an area’s attainment demonstration. See, e.g.

, “Approval and Promulgation of Air Qua lity Implementation Plans; Indiana; Redesignation of the Indianapolis Area to Attainment of the 1997 Annual Standard for Fine Particulate Matter” (78 FR 20856, April 8, 2013

- proposal) (78 FR 41698, July 11, 2013

- final).

The EPA is currently developing a proposal for a new implementation rule that would apply to current and future PM 2.5 NAAQS. The Agency plans to propose that rule later this year. The proposal will address a range of implementation requirements that apply to PM 2.5 nonattainment areas un der subparts 1 and 4. Until that implementation rule is finalized, t he EPA
believes that the 1992 General Preamble , 1994 Addendum, and recent rulemakings on Indianapolis and other areas provide helpful guidance for states in ascertaining the impact of subp art 4 requirements on their ongoing efforts to meet the 1997 and 2006 PM 2.5 standards and the EPA will approve states’ submissions in consideration of the guidance offered in those
documents

. 2 In addition, the EPA regional offices can provide further clarifications and responses to questions that may arise in specific situations. S tates should consult their respective EPA regional offices as questions arise

.

2 See also “Redesignation of Ohio Portion of the Parkersburg

- Marietta Area to Attainment of the 1997 Annual Standard for Fine Particulate Matter” (78 FR 38256, June 26, 2013

– proposal) (78 FR 53275, August 29, 2013

- final); “Redesignation of the Ohio Portion of the Wheeling Area to Attainment of the 1997 Annual Standard for Fine Particulate Matter” (78 FR 38247, June 26, 2013

- proposal) (78 FR 53275, August 29, 2013

- final); “Redesignation
of the Detroit

- Ann Arbor Area to Attainment of t he 1997 Annual Standard and the 2006 24

- Hour Standard for Fine Particulate Matter” (7839654, July 2, 2013

- proposal) (78 FR 53272, August 29, 2013

- final); “Redesignation of
the Cleveland

- Akron

- Lorain Area for the 1997 Annual Standard and 2006 24

- Hour St andard for Fine Particulate Matter” (78 FR 45116, July 26, 2013

- proposal) (78 FR 57270, September 18, 2013

- final); “Redesignation of the
Ohio Portion of the Steubenville

- Weirton Area to Attainment of the 1997 Annual and 2006 24

- Hour Standards for
Fine Particulate Matter” (78 FR 41752, July 11, 2013

- proposal) (78 FR 57273, September 18, 2013

- final); “Redesignation of Dayton

- Springfield Area to Attainment of the 1997 Annual Standard for Fine Particulate Matter” (78 FR 45135, July 26, 2013

- proposal) (78 FR 59258, September 26, 2013

- final); “Redesignation of the Canton

Massillon Area to Attainment of the 1997 Annual and 2006 24

- Hour Standards for Fine Particulate Matter” (78 FR 48087, August 7, 2013

– proposal) (78 FR 62459, October 22, 2013

- final) ; and “Attainment Plan for the Philadelphia

- Wilmington, Pennsylvania

- New Jersey

- Delaware Nonattainment Area for the 1997 Annual Fine Particulate Matter Standard” (78 FR 57573, September 19, 2013

- proposal).11

Comment 13: Clean Air Fairbanks, Joseph Eugene McGill, and NAEC commented that instead of allowing a “deadline ext ension” to states to submit SIP s for the PM 2.5 NAAQS , the EPA should instead immediately find Alaska failed to submit a SIP for the Fairbanks nonattainment

area.
Response: This rulemaking establishes a dead line of December 31, 2014 for states to submit SIPs consistent with the subpart 4 requirements, and simultaneously supersedes any other, previously established deadline for the submission of PM 2.5 attainment or N NSR plans under subpart 1. In accordance wit h the c ourt’s decision in NRDC , any deadline established by the EPA while the agency was implement ing the PM 2.5 standards solely under subpart 1 is being superseded. To the extent commenters are arguing that the EPA should determine that Alaska
failed to s ubmit a subpart 1 plan by the previously established December 14, 2012 deadline, the EPA believes that this rulemaking removes the basis to do so. In light of the NRDC decision there remains no outstanding requirement on Alaska to submit a plan solely addr essing subpart 1.
To the extent the commenter is arguing that the EPA should issue a finding of f ailure to submit against Alaska for a subpart 4 plan, please see the explanation provided in the EPA’s response to

comment 14

. Comment 14: Earthjustice commented that the deadline by which states were required to have submitted attainment plans under subpart 4 for all PM 2.5 M oderate nonattainment areas has passed, so the “EPA’s rulemaking here should be a finding that the states have failed to submit
the plans required by the provisions of the Act.” The c ommenter believes that areas designated
nonattainment for the 1997 PM 2.5 NAAQS should have submitted their M oderate area plans by October 5, 2006. The commenter further alleges that a plan for the West Central Pinal area in
Arizona for the 2006 PM 2.5 standard was due September 7, 2012. For all other areas designated
nonattainment for the 2006 PM 2.5 standard, the commenter believes plans should have been submitted no later than June 14, 2011.

Similarly, W EG commented that the EPA is required by the CAA to make findings that states have failed to submit SIPs that meet the requirements of subpart 4 for all current PM 2.5 nonattainment areas.

Response: The EPA disagrees with the comment. States’ obligation to submit plans to the EPA demonstrating attainment of the 1997 and 2006 PM 2.5 NAAQS was triggered by the EPA’s designation of the relevant areas as nonattainment. The EPA, consistent with its prior interpretation of the Act, implemented the PM 2.5 standards a ccording to

, and instructed states to follow only

, the requirements of subpart 1. Subpart 1 requires states to submit SIPs to demonstrate attainment of the NAAQS by a date established by the EPA that is no later than 3 years after the date of designation of an area as nonattainment. 42 U.S.C. § 7502(b).

The EPA also explained in various rulemaking and guidance documents that SIPs would need to meet the requirements of 42 U.S.C. § 7502(c), which governs submissions under subpart 1. Thus, states were not instructed to submit their PM 2.5 SIPs under the subpart 4 timeline, and they were not instructed to submit a PM 2.5 SIP to meet the requirements of subpart 4. Therefore, the prevailing regulatory regime continuously since 2 005, and until the NRDC decision in 2013, required submission only of subpart 1 plans, and then not until deadlines established according to subpart 1. As a result, the EPA has no outstanding duty to find that states have failed to make subpart 4 submissio ns that had not previously been required of states, and which were unknown
to them at the time.12

The commenter asserts that states should be held in default of obligations that had passed long before the NRDC decision that served to establish any such oblig ation. As explained in the EPA’s response to comment 3, the EPA does not believe the NRDC decision applies retroactively.

If the EPA were to give retroactive effect to the NRDC decision when the D.C. Circuit Court declined to do so, and impose past duties on states, the EPA would effectively penalize states that followed the EPA’s guidance and regulations to prepare SIPs solely in accordance with the timing and content of subpart 1. An EPA finding of failure to submit a SIP under subpart 4 that the commente r seeks would not give the s tates the opportunity to prepare or submit an appropriate SIP before being found in default of that obligation.

Because the states had no notice of the timing or content of any alleged earlier subpart 4 submissions, the EPA bel ieves that the Administrator does not have a nondiscretionary duty to find failures to submit subpart 4 SIPs , and it would be inappropriate to issue such a finding.
The EPA’s position on this issue has been recently upheld in fede ral court. In Wildearth Guardians v. McCarthy , 2014 U.S. Dist. LEXIS 31267, March 11, 201 4 (D. Colo.), WEG claimed that states’ 2006 PM 2.5 NAAQS SIPs should have been submitted according to the timeline laid out in subpart 4 of the CAA, which would have be en no later than June 14, 2011.
Because the states had made no SIP submission

, WEG claimed that the EPA was required to make a finding that states had failed to submit subpart 4 SIPs. The Court dismissed the claim and agreed with the EPA ’s position that “the NRDC court intended its decision to be prospective in effect, rather than retroactive.” Id. at *9. The Court also agreed that “the States were entitled to rely on the [2007 PM 2.5 ] Implementing Rule promulgated by the EPA in scheduling the pace with which they would proceed in developing their PM 2.5 SIPs.” Id . at *10.

Comment 15: Earthjustice commented that before this rulemaking would be finalized, “the deadline will have passed for submitting [S] erious area plans in those areas tha t failed to attain
the 1997 PM 2.5 standards,” which the commenter believes is December 31, 2013. Therefore, the commenter believes this rulemaking should include a finding that the involved states have failed
to submit S erious plans for these areas.

Respon se: As explained in the EPA’s responses to comments 10 and 11, the EPA disagrees that
areas that failed to attain the 1997 PM 2 .5 standards should be classified as S erious areas. Because
these areas are classified as M oderate, and not S erious, states are only required to submit plans for these areas that satisfy 42 U.S.C. § 7513a(a) and not 42 U.S.C. § 7513 a(b)(1). Because states are not yet required to submit S erious area plans for the areas that may have failed to attain the
1997 PM 2.5 standards by a date of the commenter ’ s choosing, there is no basis for the EPA to make a finding of failure to submit.

The EPA believes that this position is supported by statute and by case law. In Sierra
Club v. EPA , 356 F.3d 296 (D.C. Cir. 2004), t he court addressed the EPA’s decision to reclassify Washington, D.C.

, from a S erious to S evere nonattainment area for the ozone NAAQS and declined to require the EPA to make the reclassification retroactive. Id . at 308. The
reclassification had the effect of imposing additional obligations on Washington, D.C., for which the deadlines had already passed. Id . at 309. The court rejected the Sierra Club’s argument because it “would give the reclassification retroactive effect by holding the s tates in default of their submission obligations before the events necessary to trigger that obligation (reclassification) . . . occurred.” Id . at 309. Therefore, the court d eclined to give the13

reclassification retroactive effect before any deadline had been annou nced, and where it would impose a SIP submission deadline that had already passed. Id . at 309

- 10. See also Sierra Club v.
Whitman , 285 F.3d 63 (D.C. Cir. 2002) (discussed in the EPA’s response to comment 3).

Comment 16: The Pennsylvania Department of Environmental Protection commented that the
EPA should not have identified the Liberty

- Clairton

, PA nonattainment area as one of the areas most affected by this rulemaking. The state submitted a 2006 PM 2.5 NAAQS attainment demonstration for the Liberty

- Clairton area to the EPA for approval on June 21, 2013.

Response: The EPA has received an attainment demonstration from Pennsylvania for the 2006
PM 2.5 standard for the Liberty

- Clairton area. The EPA has not completed a final rulemaking that reviews the sufficiency of that submission under the CAA, and therefore the EPA does not comment on whether the attainment demonstration meets all subpart 4 requirements. Pennsylvania may need to submit additional information for the Liber ty

- Clairton area to meet the applicable requirements of subpart 4. To determine whether, and to what extent, any additional submissions are needed for a particular 1997 or 2006 PM 2.5 NAAQS nonattainment area

, Pennsylvania should consult with the EPA Region 3 Office

.