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Federal Register/Vol. 77, No. 93/Monday, May 14, 2012/Rules and Regulations

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 50, 51 and 81

[EPA-HQ-OAR-2007-0956; FRL-9668-4]

RIN 2060-AO96

Final Rule To Implement the 1997

8-Hour Ozone National Ambient Air

Quality Standard: Classification of

Areas That Were Initially Classified

Under Subpart 1; Revision of the AntiBacksliding Provisions To Address

1-Hour Contingency Measure

Requirements; Deletion of Obsolete

1-Hour Ozone Standard Provision

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Final rule.

SUMMARY: The EPA is revising the rules

for implementing the 1997 8-hour ozone

national ambient air quality standards

(NAAQS) to address certain limited

portions of the rules vacated by the U.S.

Court of Appeals for the District of

Columbia Circuit. This final rule assigns

Clean Air Act (CAA or Act)

classifications and associated state

planning and control requirements to

selected ozone nonattainment areas.

This final rule also addresses three

vacated provisions of the 1997 8-hour

NAAQS-Phase 1 Implementation Rule

(April 30, 2004) that provided

exemptions from the anti-backsliding

requirements relating to nonattainment

area New Source Review (NSR), CAA

section 185 penalty fees, and

contingency measures, as these three

requirements applied for the 1-hour

standard. This rule also reinstates the

1-hour contingency measures as

applicable requirements that must be

retained until the area attains the 1997

8-hour ozone standard. Finally, this rule

deletes an obsolete provision that stayed

the EPA's authority to revoke the 1-hour

ozone standard pending the Agency's

issuance of a final rule that revises or

reinstates its revocation authority and

considers and addresses certain other

issues. That rule has now been issued.

DATES: This rule is effective on June 13,

2012.

ADDRESSES: The EPA has established a

docket for this rule, identified by Docket

ID No. EPA-HQ-OAR-2007-0956. All

documents in the docket are listed in

www.regulations.gov. Although listed in

the index, some information is not

publicly available, i.e., confidential

business information or other

information whose disclosure is

restricted by statute. Certain other

material, such as copyrighted material,

is not placed on the Internet and will be

publicly available only in hard copy

form. Publicly available docket

materials are available either

electronically in www.regulations.gov or

in hard copy at the Air and Radiation

Docket and Information Center, EPA

Headquarters Library, Room Number

3334 in the EPA West Building, located

at 1301 Constitution Ave. NW.,

Washington, DC. The Public Reading

Room is open from 8:30 a.m. to 4:30

p.m., Monday through Friday, excluding

legal holidays. The telephone number

for the Public Reading Room is (202)

566-1744.

FOR FURTHER INFORMATION CONTACT: For

further general information or

information on classification of former

subpart 1 areas, contact Mr. Butch

Stackhouse, Office of Air Quality

Planning and Standards, U.S.

Environmental Protection Agency,

(C539-01), Research Triangle Park, NC

27711, phone number (919) 541-2363,

fax number (919) 541-0824 or by email

at stackhouse.butch@epa.gov. For

information on the 1-hour contingency

measures associated with the 1-hour

ozone standard contact Mr. H. Lynn

Dail, Office of Air Quality Planning and

Standards, (C504-03), U.S. EPA,

Research Triangle Park, North Carolina

27711, phone number (919) 541-2363,

fax number (919) 541-0824, or by email

at dail.lynn@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

Entities potentially affected directly

by this action include State, local, and

tribal governments and specifically

include the areas identified in Table 1.

TABLE 1-AFFECTED AREAS INITIALLY CLASSIFIED UNDER SUBPART 1

State Area

Arizona ................................. Phoenix-M esa.

California .............................. Amador and Calaveras Counties (Central Mountain), Chico, Kern County (Eastern Kern), Mariposa and Tuolumne

Counties (Southern Mountain), Nevada County, San Diego, Sutter County (Sutter Buttes).

Colorado ............................... Denver, Boulder, Greeley, Ft. Collins & Loveland.

Nevada ................................. Las Vegas.

New York .............................. Albany-Schenectady-Troy, Buffalo-Niagara Falls, Essex County (Whiteface Mtn.), Jamestown, Rochester.

Pennsylvania ........................ Pittsburgh-Beaver Valley.

Entities potentially affected indirectly

by this action include owners and

operators of sources of emissions of

volatile organic compounds (VOCs) and

nitrogen oxides (NOx), the two

pollutants that contribute to groundlevel ozone concentrations.

B. Where can I get a copy of this

document and other related

information?

In addition to being available in the

docket, an electronic copy of this notice

is also available on the World Wide

Web. A copy of this notice will be

posted at http://www.epa.gov/ttn/naaqsl

ozone/o3imp8hr/.

C. How is this document organized?

The information presented in this

Document is organized as follows:

1. General Information

A. Does this action apply to me?

B. Where can I get a copy of this document

and other related information?

C. How is this document organized?

II. What is the background for this rule?

11. This Action

A. Classification of 8-Hour Ozone

Nonattainment Areas That the EPA Had

Classified Under Subpart 1

1. The Proposal

2. Final Rule

3. Comments and Responses

a. Classification of Former Subpart 1 Areas

b. Timing of SIP Submission Under

Subpart 2 Classification

c. Timing of Attainment Date

d. Data Used for Classification

e. Other Comments on Classification of

Former Subpart 1 Areas

B. Anti-Backsliding Under Revoked 1 -Hour

Ozone Standard-In General

1. Proposal

2. Final Rule

3. Comments

C. Contingency Measures

1. Proposal

2. Final Rule

3. Comments and Responses

D. Section 185 Fee Program for 1-Hour

NAAQS

1. Proposal

2. Final Rule

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3. Comments and Responses

E. Deletion of Obsolete 1-Hour Ozone

Standard Provision

1. Proposal

2. Final Rule

3. Comments and Responses

F. Other Comments

G. Correction to a Footnote in Proposal

Rule

IV. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory

Planning and Review and Executive

Order 13563: Improving Regulation and

Regulatory Review

B. Paperwork Reduction Act

C. Regulatory Flexibility Act

D. Unfunded Mandates Reform Act

E. Executive Order 13132-Federalism

F. Executive Order 13175-Consultation

and Coordination With Indian Tribal

Governments

G. Executive Order 13045: Protection of

Children From Environmental Health

and Safety Risks

H. Executive Order 13211: Actions That

Significantly Affect Energy Supply,

Distribution, or Use

I. National Technology Transfer and

Advancement Act

J. Executive Order 12898: Federal Actions

To Address Environmental Justice in

Minority Populations and Low-Income

Populations

K. Congressional Review

L. Determination Under Section 307(d)

V. Statutory Authority

II. What is the background for this rule?

On January 16, 2009, the EPA

proposed revisions to the Phase 1 Rule

for implementing the 1997 8-hour ozone

NAAQS I (Phase 1 Rule) to address

several of the limited portions of the

rule vacated by the U.S. Court of

Appeals for the District of Columbia

Circuit in South Coast Air Quality

Management District, et a]., v. EPA, 472

F.3d 882 (D.C. Cir. 2006) reh'g denied

489 F.3d 1245 (clarifying that the

vacatur was limited to the issues on

which the court granted the petitions for

review). (South Coast). The proposal

addressed the classification system for

the subset of initial 8-hour ozone

nonattainment areas that the Phase 1

Rule originally covered under CAA title

I, part D, subpart 1. The proposal also

addressed how contingency measures

that are triggered by failure to attain or

make reasonable progress toward

attainment of the 1-hour standard

should apply under the anti-backsliding

provisions of the Phase 1 Rule. In

addition, the proposal identified the

vacated provisions of the rule that

provided exemptions from the antibacksliding requirements relating to

1-hour nonattainment NSR, the CAA

section 185 penalty fees for failure to

attain the 1-hour standard, and

174 FR 2936, January 16, 2009.

contingency measures as these

requirements applied for the 1-hour

standard. In the proposal, we planned to

remove these provisions from the

regulatory text in 40 CFR 51.905(e).

Finally, we proposed to delete a

provision that stayed the EPA's

authority to revoke the 1-hour ozone

standard. A more detailed description of

the background for this rule appears in

the January 16, 2009, notice of proposed

rulemaking (74 FR 2936).

III. This Action

A. Classification of 8-Hour Ozone

Nonattainment Areas That the EPA Had

Classified Under Subpart 1

There are a number of areas currently

designated nonattainment for the 1997

8-hour ozone NAAQS (0.08 parts per

million (ppm)) that originally did not

receive a classification under subpart 2.

In this action, the EPA is establishing

initial classifications for these 16 areas

and immediately finalizing the

proposed reclassifications to Moderate

for the areas that would be classified as

Marginal but that failed to meet the June

15, 2007 attainment date for Marginal

areas for the 1997 ozone NAAQS.

Based on the area classifications, the

CAA establishes certain planning and

control requirements for the areas, and

in this rule, the EPA is specifying the

deadlines by which states must submit

plans to meet these requirements. Once

the ozone air quality in these areas

meets the 1997 8-hour standard, certain

of these requirements may be suspended

by a determination of attainment (Clean

Data Determination, pursuant to 40 CFR

51.918, 70 FR 71702). The obligation to

complete and submit those

requirements would be suspended as

long as the area continues to attain the

standard, and would no longer apply

once the area is redesignated to

attainment following the requirements

of CAA 107(d)(3). However, other

requirements will continue to apply,

and appropriate SIP elements must be

submitted and approved prior to

redesignation to attainment.

1. The Proposal

In the January 16, 2009, proposed

rule, the EPA proposed that all areas

designated nonattainment for the 1997

8-hour ozone standard would be

classified under and subject to the

nonattainment planning requirements of

subpart 2. We proposed to modify the

regulatory text to remove current

§ 51.902(b), which was vacated by the

Court and which subjected certain

nonattainment areas to regulation only

under subpart 1.2 The Court vacated the

Phase 1 rule to the extent it placed

certain areas solely under the

implementation provisions of subpart 1.

Therefore, the proposal addressed

which provisions of the CAA should

apply to those areas. 3

We also noted that the classifications

that would be established pursuant to

this final rule would be the initial

classifications for the affected areas for

the 1997 ozone standard. Therefore, we

proposed to use the 2003 8-hour ozone

design values (derived from 2001-2003

air quality data), which were used to

designate these areas nonattainment

initially, as the basis for classification.

We also proposed to use the

classification table in 40 CFR 51.903

(established by the Phase 1 Rule) to

classify these areas. We noted that CAA

section 181(a) provides that "at the

time" areas are designated for the ozone

NAAQS, they will be classified "by

operation of law" based on the "design

value" of the areas and in accordance

with Table 1 of that section. We

concluded that this language specifies

that the area will be classified based on

the design value that existed for the area

at the time of designation. Areas were

designated nonattainment in 2004,

based on design values derived from

data from 2001-2003.

Since the classifications under this

proposal would be the initial

classifications for the 1997 8-hour

standard for the affected areas, the EPA

proposed that the provision of CAA

section 181(a)(4) would apply to these

areas. This provision would allow the

Administrator in her discretion to adjust

the classification-within 90 days after

the initial classification-to a higher or

lower classification "* * * if the design

value were 5 percent greater or 5

percent less than the level on which

such classification was based." The EPA

proposed to address requests for such

classification adjustments for the newlyclassified areas in a manner similar to

the way requests were handled for the

original round of subpart 2

classifications in 2004. This process is

described at 69 FR 23863 et seq. (April

30, 2004). We indicated in the proposal,

however, that if a state requests a

reclassification from Moderate to

2 As the Court made clear in its decision on

rehearing, the CAA does not mandate coverage

under subpart 2 of all areas designated

nonattainment for an ozone NAAQS. As EPA moves

forward to develop an implementation strategy for

any future new ozone NAAQS, we may consider

whether subpart 1 alone might apply for some areas

for purposes of implementing that NAAQS.

3 We note that areas subject to subpart 2 are also

subject to subpart 1 to the extent subpart 1 specifies

requirements that are not suspended by more

specific obligations under subpart 2.

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Marginal for an area that is currently

violating the standard, the EPA would

not grant the request for the

reclassification because the Marginal

attainment deadline has already passed.

We noted that the classification table

of 40 CFR 51.903 provides an outside

attainment date based on the number of

years after the effective date of the

nonattainment designation (e.g., 3 years

for Marginal and 6 years for Moderate).

For all nonattainment areas other than

Denver, the effective date of designation

for the 8-hour standard was June 15,

2004. Thus, Marginal nonattainment

areas (with the exception of Denver) had

a maximum statutory attainment date of

June 15, 2007. Since the Marginal area

attainment date has passed, the EPA

proposed that any area that would be

classified as Marginal based on its 2003

design value and that had not attained

by June 15, 2007, or that did not meet

the criteria for an attainment date

extension under CAA section

181(a)(5)(B) and 40 CFR 51.907, would

be reclassified immediately as Moderate

under the final rule.

In addition, we noted that a number

of areas that were initially placed in

subpart 1 under the vacated provision of

the Phase 1 Rule have since been

redesignated to attainment for the 1997

8-hour standard. We indicated that

since these areas are now designated

attainment for the 1997 8-hour standard,

the classification provisions of the final

rule would not apply.

In the proposal, the EPA took the

position that transportation conformity

requirements, and current

transportation plan and transportation

improvement program conformity

determinations for the 1997 8-hour

ozone standard remain valid, and would

not be impacted by this final action.

These areas are already required to

satisfy the applicable CAA section

176(c) conformity requirements for the

1997 8-hour ozone standard based on

their nonattainment designation in June

2004. Thus, no new conformity deadline

would be triggered for these areas after

the areas are classified under subpart 2.

These areas would continue to make

future conformity determinations

according to the applicable

requirements of 40 CFR 93.109(d) and

(e). The EPA indicated that any areas

classified as Moderate that are using the

interim emissions tests would be

required to meet additional test

requirements that do not apply to

Marginal areas [40 CFR 93.119(b)(1)].

Moderate ozone nonattainment areas are

required to satisfy both interim

emissions tests in order to demonstrate

conformity. Therefore, any area

classified as Moderate would be

required to demonstrate that emissions

in the build scenario are less than the

no-build scenario and that emissions in

the build scenario are less than

emissions in the 2002 base year.

Marginal areas are required to

demonstrate conformity using the "no

greater than" form of one of the two

interim emissions tests [40 CFR

93.119(b)(2)(i) and 40 CFR

93.119(b)(2)(ii)(A)&(B)].

The EPA proposed to require states to

submit all required State

Implementation Plan (SIP) elements of

the areas' Marginal or Moderate

classification no later than 1 year after

the effective date of this final rule. The

proposal noted that the EPA believed

this to be an appropriate and reasonable

amount of time given the attainment

dates that will apply to these areas, and

that these areas should have made

significant progress toward developing

SIPs, originally due June 15, 2007, based

on the obligations that applied before

the subpart 1 provision of the Phase 1

Rule was vacated in December 2006.

2. Final Rule

The final rule generally reflects the

approach we proposed. The final rule

provides that:

* All areas originally placed under

subpart 1 and that remain designated

nonattainment for the 1997 8-hour

ozone standard at the time of this final

rule are now classified under and

subject to the nonattainment planning

and emissions control requirements of

subpart 2, sections 181-185. There are

sixteen such areas.

* Initial classifications are based on

the 8-hour ozone design values (derived

from 2001-2003 air quality data) that

were used to designate these areas

nonattainment initially.

* The classification table in 40 CFR

51.903 (established by the Phase 1 Rule)

is used for the classifications. The

classification table of 40 CFR 51.903

provides a maximum attainment date

based on a number of years after the

effective date of the nonattainment

designation (e.g., 3 years for Marginal; 6

years for Moderate). For all areas other

than Denver, 4 the effective date of

nonattainment designation and

classification for the 8-hour standard

was June 15, 2004. Thus, other than

Denver, Marginal nonattainment areas

had a maximum statutory attainment

date of June 15, 2007. Since the

Marginal area attainment date of June

15, 2007 has passed, any area that

4 Denver's special circumstancs as a former EAC

area were discussed in the proposal. (74 FR 2939-

2941). The nonattainment designation for the

Denver area became effective November 20, 2007.

(72 FR 53952 and 53953, September 21, 2007).

would have been initially classified as

Marginal, and that did not attain by June

15, 2007 (based on 2004-6 data), and

was unable to attain pursuant to the 1-

year attainment date extensions allowed

under section 181(a)(5)(B) and 40 CFR

51.907, is reclassified from Marginal to

Moderate under this rule.

* CAA section 181(a)(4) applies to all

areas affected by this final rule. This

provision allows the Administrator in

her discretion to adjust the

classification-within 90 days after the

initial classification-to a higher or

lower classification "* * * if the design

value were 5 percent greater or 5

percent less than the level on which

such classification was based." The

process for making these adjustments is

described at 69 FR 23863 et seq. (April

30, 2004). However, the EPA will not

grant a request for reclassification to a

lower classification if (1) the attainment

date for that lower classification has

passed, and (2) the area is or has

violated the standard such that it would

not qualify for the first and second 1-

year attainment date extensions. Since

the Marginal attainment date has

passed, no area initially classified

Moderate by this notice will be eligible

for a downward adjustment to Marginal.

Further, since none of the initial

Moderate areas affected by this notice

had a classification design value within

5 percent of the Serious threshold of

0.107 ppm, no areas are eligible for an

upward classification adjustment to

Serious.

* Areas originally placed under

subpart 1 that have already been

redesignated to attainment are not

affected by these classification

provisions, which apply only to areas

that remain designated nonattainment

for the 1997 ozone standard.

In this rulemaking, the EPA is

responding to the Court's vacatur of the

provision that placed certain

nonattainment areas solely under

subpart 1 and is now classifying those

areas under subpart 2. There are sixteen

such areas identified in Table 2 that are

being initially classified under subpart 2

based on the area's design value at the

time of designation. To determine the

area's design value, we used 2001-2003

ambient air quality data. We then took

the following steps to determine

whether any areas classified Marginal

should be immediately reclassified to

Moderate.

Step 1. If the area would be classified

as Marginal based on its design value at

the time of designation, we determined

if the area attained by the June 15, 2007

attainment date based on 2004-2006

ambient air quality data. If so (and if the

area has not been formally redesignated

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to attainment) 5 the area remains

classified as Marginal. There are 8 areas

classified Marginal as a result of this

Step. (See Table 2 column for "Status in

2007", which identifies 8 Marginal areas

as "Attaining".)

Step 2. If the Marginal area did not

attain by the June 15, 2007 attainment

date, we determined if the area would

be eligible for the first 1-year extension

under CAA section 181(a)(5) and 40

CFR 51.907.6 If the area would not have

been eligible for the first 1-year

extension, we are reclassifying Amador

and Calaveras Counties (Central

Mountain), CA to Moderate as a result

of this Step.

Step 3. For any Marginal area that was

eligible for the first 1-year extension, we

reviewed the ambient air quality data

from 2005-2007 to determine if the area

attained the standard by the end of the

first 1-year extension. If so, we are

classifying the area as Marginal. No

areas are classified Marginal as a result

of this Step.

Step 4. For any Marginal area that was

eligible for the first 1-year extension, but

did not attain by the end of that

extension, we then determined if it

would have been eligible for the second

1-year extension. 7 If the area would not

have been eligible for the second 1-year

extension, we are reclassifying the area

to Moderate. Mariposa and Tuolumne

Counties (Southern Mountain), CA are

reclassified to Moderate as a result of

this Step.

Step 5. For any Marginal area that was

eligible for the second 1-year extension,

we then reviewed the ambient air

quality data from 2006-2008 to

determine if the area attained the

standard. If so, we are classifying the

area as Marginal. If the area did not

attain, we are reclassifying the area as

Moderate. No areas are classified

Marginal or reclassified Moderate as a

result of this Step.

Any Moderate area that did not attain

by June 15, 2010 and would not have

been eligible for the first or second 1-

year extension, would be subject to the

CAA's statutory provisions for

reclassification (bump-up) to Serious,

the next higher classification category.

At the time the January 16, 2009

proposed rule was issued, the Moderate

area attainment date of June 15, 2010,

had not passed. Thus, the proposed rule

did not address reclassification from

Moderate to Serious. The EPA will

address reclassifications from Moderate

to Serious, as necessary, in separate

rulemaking action.

Table 2 identifies the final subpart 2

classification for each area that was

originally classified under subpart 1

pursuant to our Phase 1 Rule (69 FR

23989, April 30, 2004), and that remains

nonattainment for the 1997 ozone

standard.

TABLE 2-SUMMARY OF NONATTAINMENT AREAS INITIALLY CLASSIFIED UNDER SUBPART 1 RECEIVING RECLASSIFICATION

UNDER SUBPART 2

2004 Initial classification/ Status in 2007 (based on 2004- Current subpart 2

State Area design value 2001-2003 2006 data) classification

(ppm) (ppm)

C A .......... C hico , C A ....................................... M arginal (0 .089) ............................. A ttaining (0 .084) ............................. M a rginal

CA .......... Sutter Co. (Sutter Buttes), CA ....... Marginal (0.088) ............................. Attaining (0.081) ............................. Marginal

NV .......... Las Vegas, NV ............................... M arginal (0.086) ............................. Attaining (0.083) ............................. M arginal e

AZ .......... Phoenix-M esa, AZ ......................... M arginal (0.087) ............................. Attaining (0.083) ............................. M arginal e

CO ......... Denver-Boulder-Greeley-Ft Collins- Marginala (0.087) ........................... Attaining a (0.082) .......................... Marginal

Loveland, CO.

NY .......... Albany-Schenectady-Troy, NY ....... Marginal (0.087) ............................. Attaining (0.078) ............................. Marginal d

NY .......... Rochester, NY ................................ M arginal (0.088) ............................. Attaining (0.074) ............................. M arginal d

NY .......... Essex Co. (Whiteface Mtn), NY ..... Marginal (0.091) ............................. Attaining (0.071) ............................. Marginal d

CA .......... Amador and Calaveras Counties Marginal (0.091) ............................. Not attaining (0.093)b .................... Moderate

(Central Mtn), CA.

CA .......... Mariposa and Tuolumne Counties Marginal (0.091) ............................. Not attaining (0.086)c .................... Moderate

(Southern Mtn), CA.

NY .......... Buffalo-Niagara Falls, NY .............. M oderate (0.099) ........................... n/a .................................................

M oderate d

PA .......... Pittsburgh-Beaver Valley, PA ........ M oderate (0.094) ........................... n/a .................................................

M oderate d

NY .......... Jam estow n, NY .............................. M oderate (0.094) ........................... n/a ........................... M oderate d

CA .......... Kern Co. (Eastern Kern), CA ......... M oderate (0.098) ........................... n/a .................................................

M oderate

CA .......... Nevada Co. (W estern Part), CA .... M oderate (0.098) ........................... n/a .................................................M oderate

C A .......... S an D iego , C A ............................... M oderate (0 .093) ........................... n/a .................................................. M ode rate

Notes:

a Denver was identified as an Early Action Compact (EAC) area at the time of designation in 2004 and the effective date of its nonattainment

designation was deferred pending the EAC process. The EAC program was later terminated and the nonattainment designation for the area be- came effective on November 20, 2007, based on a 2001-2003 design value of 0.087 ppm placing it in the Marginal classification. The Denver area attained the standard by its attainment date of November 20, 2010 (3 years after the date the area was designated nonattainment) and continues to attain based on 2008-10 data.

bAmador and Calaveras Counties did not attain by the attainment date and were not eligible for the first 1-year extension based on 2006 4th

highest daily 8-hour average of 0.098 ppm. Thus, the area's classification was changed to Moderate. The area now attains the standard based on 2008-10 data.

cMariposa and Tuolumne Counties did not attain by the attainment date and were eligible for the first 1-year extension based on 2006 4th

highest daily 8-hour average of 0.084 ppm. The area was not eligible for the second 1-year extension based on the average of the original attainment year (2006) and first extension year (2007) 4th highest daily 8-hour average of 0.085 ppm. Thus, the area's classification was changed

to Moderate. The area now attains the standard based on 2008-10 data.

dAlbany-Schenectady-Troy, Rochester, Essex County, Buffalo, Pittsburgh, Jamestown, and Las Vegas have received Clean Data Determinations.

5 Section 107(d)(3) of the CAA allows states to

request nonattainment areas to be redesignated to

attainment provided certain criteria are met that

include an approved SIP, a determination that air

quality improvement is due to permanent and

enforceable reductions in emissions, an approved

maintenance plan, and other section 110 and part

D requirements.

6 Under 40 CFR 51.907, an area would be eligible

for the first 1-year extension of its attainment date

for the 1997 ozone standard if the 4th highest daily

maximum 8-hour average in 2006 is equal to or less

than 0.084 ppm.

7 Under 40 CFR 50.907, an area is eligible for the

second 1-year extension if the 2-year average of 4th

highest daily maximum 8-hour averages for 2006

and 2007 at the monitor with the highest level is

equal to or less than 0.084 ppm.

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e Las Vegas and Phoenix have requested redesignation to attainment.

Subpart 2 contains SIP requirements

that differ from subpart 1. These include

different attainment deadlines, different

RFP requirements, requirements to

adopt RACT-based controls for certain

categories of NON and VOC sources,

specific major source thresholds and

NSR offset ratio requirements for each

classification. Table 3 lists new subpart

2-related SIP requirements for Marginal

and Moderate nonattainment areas. The

EPA is aware that many of the subpart

2 SIP requirements have already been

satisfied through previous SIP

submissions or the requirements have

been suspended due to a Clean Data

Determination. For example, all of the

areas that would be affected by the

Moderate area vehicle inspection and

maintenance (I/M) program requirement

are already implementing approved

programs, and the three areas in the

Ozone Transport Region (Pittsburgh,

PA; Jamestown, NY; and BuffaloNiagara, NY) have already submitted

SIPs to address the VOC and NON RACT

requirements. Similarly some areas

affected by this rulemaking were

previously nonattainment under the

1-hour ozone standards, and may have

already established an emissions

statement rule and completed RACT

determinations. Also, 7 of the 16 areas

affected by this final rule have received

Clean Data Determinations that suspend

certain planning requirements. 8

As indicated in Table 3, attainment

demonstrations and RFP plans are

suspended by a Clean Data

Determination, while the remaining

requirements are not. However, it is

longstanding EPA policy that if an area

submits a complete request for

redesignation including a maintenance

plan before certain nonattainment area

requirements become due, those

elements do not need to be submitted in

order for the area to be redesignated to

attainment. 9

TABLE 3-ADDITIONAL SIP ELEMENTS ASSOCIATED WITH SUBPART 2 FOR PREVIOUS SUBPART 1 8-HOUR OZONE

NONATTAINMENT AREAS

[This table is not inclusive of all CAA requirements]

Is requirement

Ozone subpart 2 SIP requirement Marginal areas Moderate areas suspended by

(CAA section) clean data

determination?

Attainment demonstration including RACM (§182(b)(1)) ........................... Not Required ................ Required ....................... Yes.

Reasonable Further Progress (§ 182(b)(1)) ................................................ Not Required ................ Required ....................... Yes.

Periodic Emissions Inventory (§182(a)(3)(A)) ............................................ Required ....................... Required ....................... No.

Emissions Statement Rule (§182(a)(3)(B)) ................................................ Required ....................... Required ....................... No.

Subpart 2 RACT for VOCs and NOx (§ 182(b)(2)(f)) .................................. Not Required ................ Required ....................... No.

Pre-1990 RACT fix-up (§182(a)(2)(A)) ....................................................... Required ....................... Not Required ................ No.

New Source Review (§182(a)(2)(C), (a)(4), (b)(5)) .................................... Required ....................... Required ....................... No.

V ehicle I/M (§ 182(a)(2)(B), (b)(4)) .............................................................. N ot R equired ................ R equired + .................... N o.

+ Applies only in nonattainment areas with population >200,000 based on 1990 census. (See 74 FR 41818-22, August 19, 2009.)

With respect to transportation

conformity, current transportation plan

and transportation improvement

program conformity determinations for

the 1997 8-hour ozone standard remain

valid, and are not impacted by this

action. Areas formerly classified under

subpart 1 were already required to

satisfy the applicable CAA section

176(c) conformity requirements for the

1997 8-hour ozone standard based on

their designation as nonattainment.

Thus, no new conformity deadline is

triggered in these areas based on their

classification under subpart 2. These

areas would make future conformity

determinations according to the

applicable requirements of 40 CFR

8 The seven areas that have received Clean Data

Determinations are Pittsburgh-Beaver Valley, PA, 76

FR 31237-39, May 31, 2011; Buffalo-Niagara Falls,

Jamestown, NY and Essex County (Whiteface

Mountain), 74 FR 63993, December 7, 2009;

Albany-Schenectady-Troy, NY, Rochester, NY, 73

FR 15672, March 25, 2008; and Clark County (Las

Vegas), NV, 76 FR 17343, March 29, 2011.

9 EPA guidance with respect to redesignations to

attainment can be found in a memorandum entitled

"Procedures for Processing Requests to Redesignate

93.109(d) and (e). Any new Moderate

areas that are using interim emissions

tests will be required to meet additional

test requirements that do not apply to

Marginal areas (40 CFR 93.119(b)(1)).1

Also, areas newly classified under

subpart 2 that are using budget test 40

CFR 93.118 and whose attainment year

is within the timeframe of the

transportation conformity determination

and transportation plan must analyze

the attainment year as required by 40

CFR 93.118(d)(2).

Areas to Attainment," John Calcagni, Director, Air

Quality Management Division, September 4, 1992.

See http://www.epa.govlttnloarpg/t5/memorandal

redesignmemO9o492.pdf. This memorandum notes,

for example, that, for the purposes of redesignation,

a state must meet the applicable requirements of

section 110 and Part D that become due prior to the

state's submittal of a complete redesignation request

to EPA. For the purposes of evaluating a

redesignation request, the EPA will not need to

consider the required SIP elements that became due

after submittal of the redesignation request.

3. Comments and Responses

a. Classification of Former Subpart 1

Areas

Comment: A number of commenters

opposed placing all the former subpart

1 areas under subpart 2. Most of these

commenters expressed concern that the

subpart 2 requirements for local

emission controls would be too

burdensome for some of the areas, are

obsolete, and would not necessarily be

effective in bringing down ozone levels.

In the case of Cincinnati, two state air

agency commenters argued that the

requirements would produce absurd

results because the area had recently

dropped the vehicle I/M program in the

wake of meeting the 1-hour ozone

However, such requirements remain due until EPA

completes final action approving a redesignation

request.

10 Moderate ozone nonattainment areas are

required to satisfy both interim emissions tests in

order to demonstrate conformity. Therefore, they

must demonstrate that emissions in the build

scenario are less than the no-build scenario and that

emissions in the build scenario are less than

emissions in the 2002 base year. (40 CFR

93.119(b)(1)).

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standard. Some commenters also argued

that certain areas would benefit more

from regional controls than from local

controls. In addition, some of the

affected areas have already made

significant progress toward attainment

since they were originally designated

nonattainment. Another commenter

stated that the proposal would take

away flexibility that they believe the

CAA allows and that the Court had

preserved in its ruling by allowing areas

with design values below 0.09 ppm to

be classified under subpart 1. Two

commenters supported placing all the

former subpart 1 areas under subpart 2.

Response: In South Coast, the Court

determined that although the CAA does

not mandate that 8-hour ozone

nonattainment areas with a design value

below 0.09 ppm be placed under

subpart 2, the EPA had not identified a

reasonable basis for placing any of the

1997 standard ozone nonattainment

areas under subpart 1. As noted in the

proposed rule, the EPA was unable to

develop a reasonable basis for doing so

and, despite soliciting comments on

potential rationales, none of the

commenters on the proposed rule

identified any such rationale. Therefore,

at this time, the EPA is not placing any

1997 standard nonattainment areas

solely under subpart 1.

We disagree with the commenters that

suggest that the subpart 2 requirements

associated with the 1997 NAAQS would

not necessarily be effective in bringing

down ozone levels. Even if the

mandated programs under subpart 2 are

not the most effective programs to

achieve emission reductions in a

specific area, that does not render the

programs "absurd," as the programs will

provide benefits by reducing emissions

of VOC and NOx. We also note that the

areas being placed under subpart 2

through this rulemaking have been

designated nonattainment for the 1997

ozone standard for over 7 years. Some

of those areas have attained the 1997

standard and have had an opportunity

to seek redesignation to attainment

before the mandatory subpart 2

requirements apply. With regard to

those that are still not attaining the 1997

standard, we note that the subpart 1

flexibility that has been available to

these areas to date has not resulted in

attainment for these areas. Thus, it is

difficult to argue for these areas that the

additional flexibility under subpart 1 is

more likely to result in attainment than

the mandated programs under subpart 2.

Comment: Some of the commenters

that opposed placing all the former

subpart 1 areas under subpart 2 believed

that the EPA did not provide sufficient

reason for not considering a different

threshold for placing areas under

subpart 1. They noted that the Court in

South Coast had set forth the 0.09 ppm

8-hour average as a design value to be

used, such that areas with design values

below that value could be placed in

subpart 1. One commenter

recommended that the EPA maximize

the use of subpart 1 to the extent it

could. However, on this matter, several

environmental organizations

commented that the Court in South

Coast expressly rejected all of the EPA's

previously stated rationales for placing

some areas only under subpart 1. They

also commented that the EPA has not

identified any alternative rationales to

justify such an approach, and allege that

no lawful or non-arbitrary rationales

exist.

Response: Although the Court

determined that an 8-hour design value

of 0.09 ppm is the appropriate threshold

for determining which areas must be

placed under subpart 2 and which areas

the Agency has discretion to place

under subpart 1, the Court rejected the

EPA's rationale in the Phase 1 Rule for

placing areas under subpart 1. At the

time of proposal, the EPA noted that it

had not developed any rationale for

placing areas in subpart 1 for the 1997

8-hour ozone standard and expressly

solicited comment on potential

rationales. However, no commenters

presented a rationale that differed from

that which the Court rejected in South

Coast.

Comment: One state air agency

supported the proposal to not place

under subpart 2 those former subpart 1

areas that have already been

redesignated attainment.

Response: As noted in the proposal,

because the classification provisions

apply to areas designated

nonattainment, the final rule does not

classify those former subpart 1 areas

that have been redesignated to

attainment for the 1997 ozone NAAQS.

b. Timing of SIP Submission Under

Subpart 2 Classification

Comment: A number of commenters

argued that the proposal did not give

enough time for states to submit SIPs

under the new classification. Some

argued that the period of 1 year after the

effective date of this rule for classifying

areas was unreasonable and arbitrary,

and that more time was needed for

analysis and the rule adoption process,

including public hearing. Some

commenters argued that the EPA should

allow the statutory time period in CAA

section 181(b)(1) from the date of

classification (3 years). Several

commenters noted that even if a state

had prepared a SIP under subpart 1

requirements, a subpart 2 Moderate area

SIP requires much more time and effort

due to the number of mandatory

measures that would have to be

adopted.

Response: As noted in the proposal,

subpart 1 areas originally had an

obligation to submit a SIP under section

172(c), including an attainment

demonstration, within 3 years after the

June 2004 designations. Although the

Court vacated the EPA's placement of

areas under subpart 1, the decision did

not change the requirement that areas

designated nonattainment must attain as

expeditiously as practicable. Moreover,

we note that areas that would have been

subject only to subpart 1 if the EPA's

rule had not been vacated would have

had an attainment date of June 2009, 1

year earlier than the attainment date for

the Moderate classification. While the

Court decision did create some

uncertainty regarding the specific

classification that might eventually

apply to an area, we note that areas have

been on notice since the EPA's January

2009 proposal that it is likely they

would be classified under subpart 2. As

noted in the proposal, the EPA had

advised states with areas that had been

placed under subpart 1, including all of

the areas affected by this final rule, to

continue making progress toward

attainment for these areas."I Indeed we

are aware that many of these states have

been working to adopt and implement

measures necessary for the affected

areas to attain the 1997 ozone standard,

and the EPA believes 1 year is an

appropriate amount of additional time

to complete that work.

For those areas that are still violating

the 1997 8-hour ozone standard, it is

critical for them to move forward and

achieve the emission reductions needed

to ensure timely attainment.

Comment: One state agency

commenter recommended that the

effective date of the new classifications

be 1 year after the rule is issued; if the

area attains before the effective date, the

rule would be waived for that area.

Response: The CAA requires that

areas be classified "at the time of

designation by operation of law." The

effective date of designation for the 1997

ozone standard was June 15, 2004.

While we do not believe it is

appropriate to treat the classifications as

11 Memorandum of March 19, 2007 from William

L. Wehrum to EPA Regional Administrators, re:

"Impacts of the Court Decision on the Phase 1

Ozone Implementation Rule" (response to Question

2) and memorandum of June 15, 2007, from Robert

J. Meyers to Regional Administrators, re: "Decision

of the U.S. Court of Appeals for the District of

Columbia Circuit on our Petition for Rehearing of

the Phase 1 Rule to Implement the 8-Hour Ozone

NAAQS" (Implications for Subpart 1 Areas).

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"retroactive," such that they would be

considered effective over 5 years ago,

we also do not believe there is a legal

basis for deferring the effective date of

the classification for 1 year. Moreover,

as noted above, if the Court had not

vacated our placement of areas only

under subpart 1, the areas affected by

this rule would have had an attainment

date (June 2009) that is 1 year earlier

than the attainment date (June 2010)

they would receive if classified as

Moderate under this rule. Thus, even if

the EPA had a legal basis and discretion

to delay the effective date of the

classification, and thus delay the

planning and attainment obligations, we

do not believe in this instance that it

would be reasonable to do so.

c. Timing of Attainment Date

Comment: A number of commenters

argued that the proposal did not provide

newly classified Marginal and Moderate

areas sufficient time to attain and that

they should have maximum attainment

dates of 3 and 6 years (respectively)

from the effective date of the new

classifications, not the original

nonattainment designations in 2004.

Several commenters cited the EPA's

interpretation of the CAA's attainment

date in the Phase 1 Rule for support by

referring to section 181(b)(1) that

provides that where an area designated

attainment or unclassifiable is

subsequently redesignated to

nonattainment, the area shall be

classified under Table 1 of section 181

and shall be subject to the same

requirements applicable if it had been

classified at the time of notice under

section 107(d)(3), "except that any

absolute, fixed date applicable in

connection with any such requirement

is extended by operation of law by a

period equal to the length of time

between the date of enactment of the

CAA Amendments of 1990 and the date

the area is classified under this

paragraph." The commenters note that

while by its terms section 181(b)(1)

would not expressly apply to

reclassification of a nonattainment area,

the section indicates that retroactive

application of time requirements is not

favored. The commenters note that

regarding the proposed rule, the EPA

would be classifying areas in 2009, not

in 2004, and argue that deadlines

should be calculated from 2009, not

from 2004. They also argue that even if

the EPA believes the deadlines need to

be adjusted in some way to address this

unique situation, the calculation and

adjustment should be done from 2009

after an assessment of the situation as it

exists in 2009. The commenters also

argue that the EPA seems to be doing

exactly what the U.S. Supreme Court

warned against in Whitman when the

Court rejected the idea of mechanically

applying subpart 2's method for

calculating attainment dates, which is

simply to count forward a certain

number of years from the effective date

of the 1990 CAA amendments. They

point out that the Court observed that

simplistically using the subpart 2

scheme "depending on how far out of

attainment the area started-seems to

make no sense for areas that are first

classified under a new standard after

November 14, 1990. If for example,

areas were classified in the year 2000,

many of the deadlines would largely

have expired at the time of

classification."

Response: For the reasons articulated

in previous responses, we do not believe

that it is legally supportable to start the

attainment periods from the time of

classification pursuant to this rule, nor

do we believe that such an approach is

reasonable. The primary trigger for

planning for attainment of a NAAQS is

the designation as nonattainment for

that standard. As noted previously,

regardless of whether an area is subject

only to subpart 1, or is classified as

Marginal or higher under subpart 2, the

obligation is the same-to attain as

expeditiously as practicable. Thus, there

is no legal or policy basis to delink the

attainment obligation from the time of

designation and instead link it to the

time of classification. We disagree that

this situation is analogous to the

situation where an area is newly

designated nonattainment and for which

section 181(b)(1) provides that any

submission dates tied to the date of

enactment of the CAA Amendments be

extended to account for the time of

designation. In such a case, the key is

that the area is newly designated as

nonattainment-not that the area's

classification status has changed or been

clarified. All of the areas that will

receive a subpart 2 classification

pursuant to this rule have been

designated nonattainment since June

2004 (except for the Denver area, which

was designated nonattainment effective

November 20, 2007) and thus should be

well on their way toward planning for

attainment of the 1997 ozone standard

as expeditiously as practicable. To the

extent that those efforts have been

delayed, we see no legal basis or

justification to provide additional time.

Comment: One state air agency

commenter argued that the 5 percent

reclassification provision of the CAA

would be rendered meaningless by the

timing in the proposal, because the

attainment date for Marginal areas has

already passed.

Response: We agree as a practical

matter that none of the 16 areas affected

by this final rule are eligible for a

classification adjustment.

Comment: Several commenters argued

that the Denver area should have a June

2007 attainment date for its Marginal

classification and thus should be

reclassified to Moderate because it did

not attain by a June 2007 attainment

date. They claim that the Early Action

Compact (EAC) concept was unlawful.

They argue that even assuming the EAC

deferral was legally permissible, Denver

was in fact identified as a

nonattainment area in the EPA's original

April 30, 2004, designations action.

Moreover, they point out that the EPA

agrees, "as it must under the Act," that

areas identified as of April 30, 2004, as

violating the 1997 ozone NAAAQS

(including Denver) must be classified

based on their design values as of April

30, 2004. They claim that under § 181 of

the Act, such classification occurred by

operation of law no later than April 30,

2004. Furthermore, they claim that

assigning a November 2010 Marginal

area attainment date to Denver (a

Marginal area) is also unreasonable and

arbitrary, given that the EPA is assigning

a June 2007 attainment date to all other

areas classified as Marginal based on

2001-03 design values. They argue that

even if the Act could be read as giving

the EPA some discretion in setting the

outside attainment date, the statute

expressly requires the attainment date to

be "as expeditiously as practicable."

They argue that the EPA cites no legal

or rational basis, and none exists, for

finding that November 2010 is "as

expeditiously as practicable" for

Denver, when every other Marginal area

had a 2007 attainment date, nor is there

any conceivable justification consistent

with the Act and its purposes. They

point out that Denver residents are not

somehow less deserving of clean air

than residents of the other areas, nor is

there any rational basis for delaying the

stronger controls in Denver that would

come from the reclassification to

Moderate required for all other Marginal

areas that failed to attain by 2007 and

were ineligible for attainment date

extensions. They argue that the EPA

cannot claim that it would be harder for

Denver to adopt Moderate area controls

than the other areas proposed for

Moderate classification, as all of the

other areas will have had the same

amount of time to prepare and

implement SIP requirements. They

argue that neither is there any inequity

in requiring Denver to adopt the same

controls on the same schedules as

required for other areas initially

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classified as Marginal based on 2001-03

design values. To the contrary, they

argue, allowing Denver more time than

other Marginal areas not only flouts

Congressional intent but is grossly

inequitable to the other Marginal areas

required to attain by 2007. The

commenter also argues that the EPA

cannot rely on the EAC deferral of the

effective date of Denver's attainment

designation and classification because

that deferral was itself contrary to the

Act. "Nowhere does the Act allow the

EPA to defer the effective dates of ozone

nonattainment designations and

classifications, or to otherwise delay

control requirements triggered by

designations. To the contrary, the Act

requires nonattainment designations by

date-certain deadlines. Section 107(d),

42 U.S.C. 7407(d); Pub. L. 105-178,

section 6103, 112 Stat. 465 (June 9,

1998), codified at 42 U.S.C. 7407 Note.

Promulgating a non-effective

nonattainment designation-i.e., a paper

designation that sits in the books

without being activated-violates this

requirement. Further, the Act contains a

detailed array of requirements, likewise

governed by date certain deadlines,

applicable to nonattainment areas,

including submission of

implementation plans providing for

attainment, rate-of-progress, and various

specific programs such as new source

review, conformity, and contingency

measures. See, e.g., CAA sections 181,

182, 110, 172, 173, 176. By refusing to

implement these various requirements,

the EAC scheme violates those

provisions. The Act likewise prescribes

requirements governing redesignation of

nonattainment areas to attainment

(setting forth several prerequisites that

must be met before such redesignation

can be granted), CAA section

107(d)(3)(E), and requiring the EPAapproved maintenance plans sufficient

to remedy any relapse into

nonattainment that occurs during the

20-year period following redesignation.

CAA sections 107(d)(3)(E)(iv), 175A. By

shunting these requirements aside, the

EPA would violate those provisions as

well.'"

Response: The EPA acknowledges the

commenters' concerns with the EAC

program. However, the EPA's rules

regarding EAC areas under the 1997

ozone NAAQS were promulgated in

2004, and the proper time for

challenging the legality of the EAC

program and the deferral of the effective

date of the nonattainment designation

for Denver (and other EAC areas) was

within 60 days of publication in the

Federal Register of those final actions

(40 CFR Part 81, September 21, 2007 (72

FR 53952) and April 30, 2004 (69 FR

23857)). To the extent the commenters

are raising concerns about the effective

date of designation for the Denver

nonattainment area and the attainment

date for that area, those were established

in a final rule published September 21,

2007 (72 FR 53952). Thus, these

comments are not timely. We note that

contrary to the claims of the

commenters, the Denver area's

classification in this rulemaking is

based on the design value that existed

at the time the EPA initially published

(and deferred the effective date of) the

nonattainment designation [April 30,

2004 (69 FR 23858)] and was based on

2001 to 2003 data. With regard to the

claims concerning the time periods for

SIP submissions, we note that the time

periods for attainment and SIP

submissions for the Denver area are

linked to the effective date of the

designation and/or classification of the

area, as they are for all areas. With

respect to the attainment date, the

Denver area, which is classified as

Marginal under this rule, had an

attainment date of November 2010_3

years following the effective date of

designation.

Comment: One state agency

commenter argued that for Moderate

areas, the requirement to provide

reasonable further progress toward

attainment is rendered meaningless by

the timing of the proposal, since there

would be no time to provide progress

prior to the attainment date.

Response: Given the timing of the

maximum statutory attainment date

(June 15, 2010) and SIP submission date

(1 year after the effective date of this

rulemaking) for Moderate areas, any

RFP plan not already in effect will not

have an effect on attainment by the

attainment date since the attainment

date for Moderate areas has already

passed. However, under the CAA, an

RFP plan (to obtain 15 percent VOC

emissions reductions from baseline

emissions within the first 6 years after

the applicable base year) would still be

a required SIP element, even though the

6-year period might end after the

Moderate area attainment date,

depending on the base year for the

state's RFP calculation. We note that

under the Clean Data Policy, codified at

40 CFR 51.918 (70 FR 71702, November

29, 2005), if the area attains the

standard, a Clean Data Determination

under the Clean Data Policy provision

would suspend the obligation to submit

the RFP SIP. The suspension would

remain in place until such time as the

EPA redesignates the area to attainment,

at which time the requirement would no

longer apply, or until EPA determines

the area has violated the 1997 standard,

at which time the obligation would

apply once again.

d. Data Used for Classification

A number of the commenters argued

that the EPA should use more recent

data for the classification of the former

subpart 1 areas. There were several

arguments made in these comments,

and we address them separately here:

Comment: Commenters claim that

using the 2001-2003 data for the initial

designations ignores the improvements

in emissions reductions (e.g., through

the NOx SIP call) and ambient ozone

reductions that have occurred since

designations were made in 2004. Some

commenters note that several of the

areas are close to attaining the standard

and would be subjected to mandatory

controls that would not be necessary to

attain the standard. Another commenter

notes that Appendix A of the January

16, 2009 proposal shows that, with one

exception, the current subpart 1 areas

for which a 2005-2007 design value is

available had a lower design value in

those years than they did for 2001-2003,

and the one exception (Las Vegas) had

the same design value in both periods;

thus using the earlier data would more

likely subject areas to a higher

classification. Another commenter notes

that section 181(a) directed the EPA in

1990 to classify areas using the most

recent data (i.e., data from 1990, or

actually, a future time when

designations would be made), not data

from 6 years earlier. The commenter

also notes that section 181(a) does not

state that the data used to classify areas

must be the data that existed at the time

of designation. They argue that section

181(a) instead specifies only that the

classification occur at the time of

designation. They point out that

classification is precisely the thing that

did not lawfully occur at the time of

designation in 2004, through no fault of

the states. They argue that the temporal

connection between classification and

designation has been irretrievably

broken. They argue that a second

temporal connection in section 181(a),

namely the connection between

classification of areas and data used to

classify areas, has not been broken and

should be preserved by using the most

recent data. They claim that doing so

allows the EPA to better assess where

states are now and where mandatory

requirements of a higher classification

are really needed to address ozone

nonattainment. It avoids creating

artificial deadlines based on retroactive

application of time periods and

classification based on a backwardlooking review of data. It avoids

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depriving states of the opportunity to

develop strategies to attain the revised

standard based upon where the state's

air quality is, not was. They argue this

is particularly true for areas like

Columbus and Cincinnati in Ohio that

have attained the 1-hour standard that

was addressed by subpart 2, and already

have or are close to attaining the 1997

standard. They claim that these areas do

not need to be abruptly classified at the

tougher Moderate classification with its

mandatory emission control measures.

Response: As we noted in the

proposal, the classifications would be

the initial classifications for these areas

for the 1997 ozone standard. We noted

that CAA section 181(a) provides that

"at the time" areas are designated for a

NAAQS, they will be classified "by

operation of law" based on the "design

value" of the areas and in accordance

with Table 1 of that section. We believe

this language requires that the area be

classified based on the design value that

existed for the area "at the time" of

designation. Areas were designated

nonattainment in 2004, based on design

values derived from data from 2001-

2003.

We also note that arguments that areas

should be able to develop plans to attain

based on what the air quality "is," not

what it "was," would only serve to

further delay the progress that should

already have been made. As noted

previously, if the area had remained

solely subject to subpart 1, the area

would have been required to attain the

1997 standard by June 2009. Those areas

that have attained and have been

redesignated as of the effective date of

this final rule will not be classified

under subpart 2. The EPA has

previously reminded states that they

should remain on track with planning

for attainment despite the Court's

remand of the subpart 1 classification.

We also note that it would be

inequitable to most areas previously

classified under subpart 2 to classify a

former subpart 1 area with similar air

quality using current air quality data.

Most of the areas classified under

subpart 2 in 2004 now have cleaner air

than they did in 2004 and thus, if they

were being classified now based on

more recent air quality data, they too

would receive a lower classification.

Comment: One commenter alleged

that using the 2001-2003 data for

Allegan County, MI, produces an absurd

result, requiring mandatory local

emission controls when the problem is

clearly transport from outside the state.

The commenter cites the study,

"Western Michigan Ozone Study-Draft

Report" of November 2008, prepared by

the Lake Michigan Air Directors

Consortium (LADCO) for the EPA, to

comply with a provision within the

Energy Policy Act of 2005. That

commenter notes that in NRDC v. EPA,

22 F.3d 1125 (D.C. Cir. 1994), the D.C.

Circuit Court addressed the EPA's

failure to meet a November 15, 1991

deadline in the CAA for publication of

guidance for states' preparation of SIPs

for "enhanced" vehicle inspection and

maintenance. Those SIPs were due by

November 15, 1992. Because the EPA

failed to publish the necessary guidance

until nearly a year after the statutory

deadline for that guidance, states could

not be held to their deadline, and the

states' SIP submissions deadline was "properly extended to further the CAA's

purposes." The commenter concludes

that for purposes of the proposed rule,

the EPA's failure in 2004 to meet its

statutory obligation to classify ozone

nonattainment areas lawfully, is no

cause for the EPA to now use the data

it would have used at that time in

classifying areas, where those data

would disadvantage the areas. They

comment that the effect of the EPA's

proposed approach on this issue is to

penalize states, areas, and sources

unfairly for the EPA's legally deficient

action.

Response: We disagree with the

commenter's suggestion that it would be

an "absurd result" to use designationera data for classification. As we noted

previously in relation to the concept of

allowing exemptions from requirements

under subpart 2, the judicial precedents

in which courts have allowed

exceptions from the strict language of a

law are fairly narrow. For instance, in

the final Phase 2 Rule, we said: "In

general, we note that to demonstrate an

absurd result, a State would need to

demonstrate that application of the

requirement would result in more harm

than benefit. For example, the programs

mandated under subpart 2 are generally

effective in reducing emissions of the

two ozone precursors-NOx and VOCand because reductions of those

precursors generally lead to improved

air quality, we believe that such a

demonstration could be made, if at all,

only in rare instances." See 70 FR at

71620; November 29, 2005. We do not

find that the situation at issue here

meets the criteria implied by judicial

precedents.

We also disagree with the

commenter's statement where the

commenter relies upon NRDC v. EPA to

argue against using the data from the

time of designation. In NRDC, the Court

faced an impossibility argument. Under

the CAA, States were required to

develop I/M SIPs consistent with the

EPA guidance. Because the EPA was

late in issuing that guidance (which it

determined needed to be issued through

rulemaking), States were unable to

submit timely SIPs that were consistent

with the guidance. There is no

impossibility argument here. The data

from 2001-2003 exist and can be used

to classify areas. To the extent that SIP

submission dates for these areas have

passed, the EPA is providing additional

time for submission of those plans. To

the extent that a Marginal area affected

by this rule did not attain the standard

by the June 15, 2007, attainment date (or

the extended deadline), the EPA is

reclassifying the area to Moderate.12

Furthermore, we note that the subpart 2

classifications based on 2001-2003 data

are not "punishment" for the EPA's

failure to classify areas correctly in the

initial Phase 1 Rule. Using the 2001-

2003 data places the areas in the

position they would have been in if the

EPA had initially classified all areas

under subpart 2 in the initial Phase 1

Rule.

Comment: Another commenter notes

that 40 CFR Part 50, Appendix I states:

"the 3-year average annual fourthhighest maximum 8-hour average ozone

concentration is also the air quality

design value for the site." The appendix

states in section 2.2 that "The 3-year

average shall be computed using the

three most recent, consecutive calendar

years of monitoring data meeting the

data completeness requirements

described in this appendix." The

commenter notes that the definition of

"design value" in the CFR requires that

the three most recent years be used to

calculate it.

Response: We disagree with

commenters that rely on 40 CFR

Appendix I to argue that there is only

one "design value" for an area and that

it is based on the most recent 3 years of

data. We agree that the current design

value for an area is based on the most

recent 3 years of data, but that does not

mean design values for previous 3-year

periods of time are no longer relevant.

As explained previously, we believe

that the language in section 181(a) of the

12 We do not agree with arguments that we should

allow for a Marginal area classification with an

attainment date in the future. As noted in several

places, Marginal areas are presumed capable of

attaining quickly without the adoption of additional

local controls. For that reason, there are virtually no

mandated local control requirements for Marginal

areas under section 182(a), nor is there a

requirement to develop an attainment

demonstration. Thus, to the extent an area would

have been classified as Marginal based on its 2001-

2003 design value yet failed to attain by June 2007,

we see no argument that such areas would have

attained if EPA had "correctly" classified them as

Marginal in 2004. (We note that many of the areas

originally identified as subpart 1 have indeed

attained and been redesignated as attainment.)

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Act provides that classifications be

based on the design value used for

designation.

Comment: Another commenter claims

that ignoring current air quality data is

out of step with the EPA's new

emphasis on science-based decisions.

Response: The EPA is not ignoring

current air quality data, but must

classify areas based on the law as

described above.

Comment: Environmental

organization commenters argue that the

EPA should use the air quality data

available at the time of designation for

initial classification.

Response: The EPA agrees for the

reasons stated in the proposed rule and

above in response to comments.

e. Other Comments on Classification of

Former Subpart 1 Areas

Comment: One state air agency

commented that the proposed rule does

not adequately address situations like

Allegan County, MI, which is largely

affected by transport but yet is not

provided any relief under the CAA such

as coverage under the rural transport

area provision of section 182(h).

Response: We agree that the CAA

does not provide relief in the form of

being identified as a "rural transport

area" for areas such as Allegan County,

MI, whose nonattainment area boundary

is adjacent to a metropolitan statistical

area. Part of the EPA's rationale in the

Phase 1 Rule for using subpart 1 was to

address situations such as that with

Allegan County. However, the court in

South Coast found that Congress

intended to constrain such discretion.

The commenter has not suggested any

specific relief available under the CAA

that the EPA could have applied in this

final rule.

B. Anti-Backsliding Under Revoked

1-Hour Ozone Standard-In General

1. Proposal

The EPA codified anti-backsliding

provisions governing the transition from

the revoked 1-hour ozone NAAQS to the

1997 8-hour ozone NAAQS in 40 CFR

51.905(a). These provisions, as

promulgated, retained most of the 1-

hour ozone requirements as "applicable

requirements" [defined in 40 CFR

51.900(f)]. A requirement listed as an "applicable requirement" is retained for

an area if the requirement applied in the

area based on the area's 1-hour ozone

designation and classification as of the

effective date of its 8-hour designation

(for most areas, June 15, 2004). 40 CFR

51.900(f).

Section 51.905(b) provides that an

area remains subject to the 1-hour

standard obligations defined as "applicable requirements" until the area

attains the 8-hour NAAQS.

Furthermore, § 51.905(b) provides that

such obligations cannot be removed

from a SIP, even if the area is

redesignated to attainment for the 8-

hour NAAQS, but must remain in the

SIP as applicable requirements or as

contingency measures, as appropriate.

Section 51.905(e), as promulgated in

2004, indicated that certain 1-hour

standard requirements would no longer

apply after revocation of the 1-hour

standard. Among other things, these

included 1-hour NSR, section 185

penalty fees for the 1-hour NAAQS, and

1-hour contingency measures for failure

to attain or make reasonable progress

toward attainment of the 1-hour

NAAQS. 13 The Court vacated these

exemption provisions, and in the

January 16, 2009, proposed rule, the

EPA proposed to delete these three

vacated provisions from the Code of

Federal Regulations.14

2. Final Rule

This final rule addresses how antibacksliding principles will ensure

continued progress toward attainment of

the 8-hour ozone NAAQS. The final rule

removes three vacated provisions of the

Phase 1 Rule that provided exemptions

from the anti-backsliding requirements

relating to nonattainment NSR, CAA

section 185 penalty fees, and

contingency measures as these

requirements applied for the 1-hour

13 Note that if the area is nonattainment for the

1997 8-hour standard, for purposes of the 1997

standard, it is subject to nonattainment NSR,

contingency measures and (if classified as Severe or

Extreme for the 1997 ozone NAAQS) the section

185 penalty fee provision.

14 We noted in the proposal that the Court's June

2007 clarification, South Coast, 489 F3d 1245,

confirms that the December 2006 decision was not

intended to establish a requirement that areas

continue to demonstrate conformity under the 1-

hour ozone standard for anti-backsliding purposes.

Therefore, no revisions were proposed to 40 CFR

51.905(e)(3). Section 40 CFR 51.905(e)(3)

establishes that conformity determinations for the

1-hour standard are not required beginning 1 year

after the effective date of the revocation of the 1-

hour standard and any state conformity provisions

in an applicable SIP that require 1-hour ozone

conformity determinations are no longer federally

enforceable. This provision does not require

revision in light of the Court's decision and

clarification, because the Court did not require

conformity determinations for the 1-hour standard,

and existing regulations already implement the

Court's holding that 8-hour ozone nonattainment

and maintenance areas must use 1-hour ozone

budgets to determine conformity to the 1997 8-hour

standard until such time as 8-hour ozone budgets

are approved or found adequate for the area.

Therefore, current transportation conformity-related

regulations set forth in 40 CFR part 93 and 40 CFR

51.905(e)(3), and the general conformity regulations

in 40 CFR part 93 are consistent with the Court's

decision and clarification on the Phase 1 Rule and

do not require revision.

standard. This rule also reinstates 1-

hour contingency measures as

applicable requirements that must be

retained until the area attains the 1997

ozone standard. The EPA has issued

separate guidance 15 and a separate

proposed rule addressing the nowapplicable 1-hour requirements for NSR

(75 FR 51960, August 24, 2010). The

EPA will also address reinstatement of

the section 185 fee program obligations

in separate action.

3. Comments and Responses

Comment: One group of

environmental organizations supported

the proposal to remove the three

exemptions from the regulations, but

stated that NSR and the section 185 fee

requirement must be added to the list of

"applicable requirements" at 40 CFR

51,900(f). Several commenters

expressed other concerns about the

implications of removing the 1-hour

NSR and section 185 fee program

exemptions.

Response: In this final rule, the EPA

is only removing the regulatory

language at 40 CFR 50.9(c) that provided

for the exemptions from 1-hour NAAQS

requirements in accordance with the

court vacatur. The EPA has addressed in

a separate proposed rulemaking exactly

how the regulatory provisions should

address the now-applicable 1-hour NSR

requirements (75 FR 51960, August 24,

2010), and plans to address application

of section 185 fee program requirements

for the 1-hour standard in separate

actions.

Comment: A state agency commented

that the Court never addressed the

requirements that should still apply to

prevent backsliding in areas that had

already achieved timely attainment of

the 1-hour ozone standard and only

focused on whether NSR was a required

control for the purposes of CAA section

172(e) anti-backsliding provisions for

areas not attaining the 1-hour standard

(such as South Coast Air Basin).

The commenter stated that section

51.905(e)(4), which states that upon

revocation of the 1-hour ozone NAAQS,

a 1-hour nonattainment area's

implementation plans must meet

requirements contained in paragraphs

(e)(4)(ii) through (e)(4)(iv) of this

section, should not be deleted. Instead,

this section should be retained and

supplemented with further language to

appropriately address the circumstances

of 1-hour standard nonattainment areas

15 Robert J. Meyers Memorandum, October 3,

2007, New Source Review (NSR) Aspects of the

Decision of the U.S. Court of Appeals for the

District of Columbia Circuit on the Phase 1 Rule to

Implement the 8-Hour Ozone National Ambient Air

Quality Standards (NAAQS).

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that attained the 1-hour standard. For

example, the further language could

specify that section 51.905(e)(4) is not

applicable in the circumstances that

were present with the South Coast Air

Basin. Alternatively, the further

language could specify that section

51.905(e)(4) is applicable only in certain

circumstances, including those that

were present for the Greater Chicago

Ozone Nonattainment Area, which

attained the 1-hour standard prior to the

November 2007 Severe area deadline.

Response: In South Coast, the Court

vacated the regulatory provision that

did not retain the obligation for States

to have 1-hour major NSR requirements

as part of their approved SIPs. The

Court held that removing such

provisions from a SIP "would constitute

impermissible backsliding." 472 F.3d

882 (2006), clarified, 489 F.3d 1245 (DC

Cir. 2007), cert. denied, 76 U.S.L.W.

3095 (U.S. Jan. 14, 2008).

In this final rule, we are removing the

vacated provision that did not retain 1-

hour NSR obligations from the

regulations at 40 CFR part 51 in order

to ensure the published regulatory text

is consistent with the Court's vacatur.

The South Coast decision means that

states remain obligated to have in their

SIPs the 1-hour major NSR thresholds

and offsets in those 8-hour

nonattainment areas that had not been

redesignated to attainment for the 1-

hour ozone NAAQS as of the date of

designation for the 1997 8-hour ozone

NAAQS. The Phase 1 Rule (69 FR

23972) established the date of the

designation for the 1997 8-hour ozone

NAAQS (June 15, 2004 for most areas)

as the relevant date for determining

what anti-backsliding requirements

would apply to areas (i.e., the

requirements that applied based on the

area's 1-hour designation and

classification as of the effective date of

designation for the 8-hour standard). In

a separate rulemaking, we plan to

address the circumstances in which 1-

hour NSR requirements might be

removed from a SIP, specifically

addressing areas that currently attain

the 1-hour standard such as Chicago.

We disagree with the commenter that

the Court's decision only addressed the

specific circumstances applicable to the

South Coast Air Quality Management

District (SCAQMD). While SCAQMD, as

the "lead petitioner," lent its name to

the case, the challenges to the rule were

broad and concerned the antibacksliding requirements as they

applied to all types of areas.

Furthermore, we note that the antibacksliding rules applied in the same

manner in the Chicago area as they did

in SCAQMD. Under the rules, the

requirements that were retained for an

area were those that applied as of the

effective date of designation for the 1997

8-hour NAAQS. Both the Chicago area

and the SCAQMD were designated

nonattainment for the 1-hour standard

at the time of designation for the 8-hour

standard and were designated

nonattainment for the 8-hour standard.

Thus, both areas were subject to the

anti-backsliding provisions in 40 CFR

51.905(a)(1) that address requirements

for "8-Hour NAAQS Nonattainment/1-

Hour NAAQS Nonattainment."

Furthermore, the provisions in 40 CFR

51.905(e) that did not retain certain 1-

hour requirements applied in the same

manner to both areas. Thus, to the

extent the South Coast decision

addresses these regulatory provisions, it

applies in the same manner to both

areas.

Comment: One commenter

maintained that we should ensure and

confirm that the proposed rules do not

have retroactive effect. Speaking in

terms of NSR, the commenter said any

changes to the 8-hour ozone

implementation rule that impose

additional or new requirements on

designated areas should not be effective

until after the implementation rule is

adopted and any necessary SIP revision

is adopted and approved on a timely

basis. To support their comment, they

referenced Sierra Club v. Whitman, 285

F.3d 63 (DC Cir. 2002). They also

commented that the Administrative

Procedure Act severely restricts

retroactive rulemaking and Congress did

not take the unusual step of giving U.S.

EPA the ability to implement rules

retroactively. The requirement that 1-

hour NSR continues to apply to 8-hour

nonattainment areas that attain the 1-

hour NAAQS will not be officially

adopted until mid-2009, at the earliest.

Hence, for all units that commence

construction (e.g., contract

commitments are in place or building

has begun) between 2004 and 2009, in

areas re-designated as attaining the 1-

hour NAAQS, 1-hour NSR has not

applied. They asserted the South Coast

court could not have intended the

retroactive application of the

requirement. Further the commenter

maintained that retroactive application

of this rule to sources that have already

committed contracts is contrary to

fairness and predictability in regulatory

environments.

Response: In this final rule, we are

removing from the regulations at 40 CFR

part 51 the provision that did not retain

1-hour NSR obligations in order to

ensure the published regulatory text is

consistent with the Court's vacatur. We

view the portions of the Court's decision

on the anti-backsliding provisions as

self-implementing; thus, at a minimum,

as of the date of the Court's mandate

(August 29, 2007), areas that were

designated nonattainment for the 1-hour

standard as of the effective date of

designation as nonattainment for the

1997 8-hour standard, have been

obligated to adopt and implement an

NSR program consistent with their 1-

hour classification as of the effective

date of designation for the 1997 ozone

standard. We note that we have urged

states to take steps to comply with the

decision without waiting for further

EPA rulemaking. See e.g., Memorandum

from Robert Meyers to Regional

Administrators (October 3, 2007). The

necessary actions to achieve such

compliance may vary depending on the

specific situation.

Because this rule merely removes the

vacated regulatory text, it has no "retroactive effect" as suggested by the

commenter. As noted above, at a

minimum, as of the date the mandate

issued, areas designated nonattainment

for the 1997 8-hour standard have been

obligated to ensure that their SIP

includes a 1-hour NSR program

consistent with their classification for

the 1-hour standard as of the effective

date of designation for the 1997 ozone

standard and to implement such

program. Thus, for any permitting

actions that have occurred since the

issuance of the Court's mandate, we do

not believe there is any argument that

the requirement to meet 1-hour NSR

obligations is "retroactive."

To the extent the commenter raises

the issue of retroactivity, the issue is

relevant only to the extent to which the

Court's vacatur has retroactive effect. In

some instances, a vacated regulation has

been held to be "void ab initio"; in

other words, the regulation is treated as

if it had never existed. See, e.g., United

States v. Goodner Bros. Aircraft, Inc.,

966 F.2d 380 (8th Cir. 1992). In

addition, the D.C. Circuit has held that

there is a presumption of retroactivity

for adjudications when such

adjudications clarify existing law, and

that the presumption is departed from

only when to do otherwise would lead

to manifest injustice. Qwest Services

Corp. v. F.C.C., 509 F.3d 531 (D.C. Cir.

2007). The D.C. Circuit has stated that

vacatur has "the effect of restoring the

status quo ante." Air Transport

Association of Canada v. FAA, 254 F.3d

271, 277 (D.C. Cir. 2001). The EPA will

work with states and sources to resolve

any issues arising from permitting

actions taken between Tune 15, 2004 and

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August 29, 2007,16 based on a permit

program that was consistent with the

waiver in 40 CFR 51.905(e)(4).

C. Contingency Measures

1. Proposed Rule

The Court in South Coast Air Quality

Management District, et a]., v. EPA, 472

F.3d 882 (D.C. Cir. 2006) reh'g denied

489 F.3d 1245, vacated 40 CFR

51.905(e)(2)(iii), which did not retain

the anti-backsliding requirement

concerning contingency measures, on

the basis that they were control

measures that must continue to apply.

Therefore, the EPA proposed that states

be required to retain 1-hour contingency

measures in their SIPs that apply based

on a failure to meet 1-hour RFP

milestones or upon a failure to attain the

1-hour standard by the area's attainment

date. Furthermore, consistent with the

EPA's proposal to retain these 1-hour

contingency measure requirements as

anti-backsliding measures, we also

proposed to add "contingency measures

under sections 172(c)(9) and 182(c)(9) of

the CAA" to the list of applicable

requirements under § 51.900(f). The

proposal noted that in situations where

an area attains the 1-hour NAAQS by

the applicable attainment date for that

standard, the area is not subject to the

requirement to implement contingency

measures for failure to attain the

standard by its attainment date. As a

result, any area that has met its

attainment deadline for the 1-hour

standard (or meets its deadline if it has

not yet passed), would not be required

to implement the contingency measures

for failure to attain the standard by its

attainment date for purposes of antibacksliding even if the area

subsequently lapses into nonattainment.

Additionally, the contingency measures

for failure to meet RFP milestones

would not be triggered if the area has

met those milestones.

The proposal also noted that in

situations where a 1-hour ozone

nonattainment area is in attainment of

that standard based on current air

quality, the EPA can make a finding of

attainment. See Memorandum from

John S. Seitz, Director, Office of Air

Quality Planning and Standards,

entitled, "Reasonable Further Progress,

Attainment Demonstration, and Related

Requirements for Ozone Nonattainment

Areas Meeting the Ozone Ambient Air

Quality Standard," dated May 10, 1995.

Under this policy, which is referred to

as the "Clean Data Policy," if the EPA

16 That is, between the effective date of the initial

area designations for the 1997 8-hour standard and

the date of the final D.C. Circuit Court ruling on

rehearing of the South Coast case.

determines through rulemaking that the

area is meeting the 1-hour ozone

standard, the requirements for the state

to submit an attainment demonstration

and related components such as

contingency measures for failure to

attain or make reasonable further

progress are suspended as long as the

area continues to attain the 1-hour

ozone NAAQS. (We note that such a

determination does not relieve an area

of the requirement to comply with a

contingency measure provision in an

approved SIP, but merely suspends any

outstanding submission requirement.) If

the area subsequently violates the ozone

NAAQS for which the determination

was made (in this example, the 1-hour

ozone NAAQS), the EPA would initiate

notice-and-comment rulemaking to

withdraw the determination of

attainment, which would reinstate the

requirement for the state to submit such

plans.

The proposal noted that three federal

courts of appeal have upheld the EPA

rulemakings applying the Clean Data

Policy. See Sierra Club v. EPA, 99 F.3d

1551 (10th Cir. 1996); Sierra Club v.

EPA, 375 F.3d 537 (7th Cir. 2004) and

Our Children's Earth Foundation v.

EPA, No. 04-73032 (9th Cir. June 28,

2005) memorandum opinion. Since the

proposal, the U.S. Court of Appeals for

the District of Columbia Circuit has also

upheld the Clean Data Policy, which

was codified in 40 CFR 51.918 for

purposes of implementing the 1997

ozone NAAQS, in NRDC v. EPA, 571

F.3d 1245 (DC Cir. 2009).

Thus if the EPA makes a

determination of attainment of the 1-

hour ozone standard as provided by the

Clean Data Policy, the EPA would find

that the requirement under the antibacksliding provisions (40 CFR 51.905)

to submit any outstanding section 172

and 182 contingency measures under

the 1-hour standard would be

suspended for so long as the area

continues to attain the 1-hour standard.

2. Final Rule

The final rule takes the same

approach as proposed, namely, that

areas designated nonattainment for the

1997 8-hour ozone NAAQS must adopt,

if not already adopted, and retain in

their SIPs, contingency measures for

failure to meet 1-hour RFP milestones

and for failure to attain the 1-hour

standard by the area's attainment date.

This requirement applies where an area

remained designated nonattainment for

the 1-hour standard at the time of the

area's designation to nonattainment for

the 1997 8-hour ozone standard. To

clarify that this requirement continues

to apply, we are including "contingency

measures under sections 172(c)(9) and

182(c)(9) of the CAA" in the section

51.900(f) list of "applicable

requirements." Consistent with 40 CFR

51.905(b), areas remain obligated to

adopt and retain these requirements in

their SIPs until they attain and are

redesignated for the 1997 8-hour ozone

NAAQS. The rule at § 51.905(b)

provides that an 8-hour nonattainment

area will remain subject to the

applicable requirements listed in

§ 51.900(f) until it attains the 8-hour

standard and that after an area attains

the 8-hour standard, the state may

request that the 1-hour obligations be

shifted to contingency measures, but

may not remove them completely from

the SIP. 1 7 In addition, if prior to

attaining the 1997 8-hour ozone

standard, the area attains the 1-hour

standard, the EPA may make a

determination of attainment for the 1-

hour standard which would suspend the

obligation to submit such contingency

measures if the state has not already

done so.

3. Comments and Responses

Comment: One environmental

organization commenter recommended

that contingency measures for the 8-

hour standard should be at least as

stringent as those for the 1-hour

standard.

Response: The proposal addresses the

contingency measure requirement as it

relates to anti-backsliding for the 1-hour

standard, which was vacated by the

Court. It does not interpret the

contingency measure obligations for the

8-hour standard. Because states have

discretion in selecting the measures to

adopt as contingency measures,

concerns regarding the adequacy of

contingency measures are best

addressed in the context of a specific

SIP rulemaking.

Comment: Several commenters noted

that the preamble to the proposed rule

describes two situations in which states

would no longer need to retain or

implement 1-hour contingency

measures: (1) Where a nonattainment

area meets or has met its 1-hour

attainment date, even if the area

17The preamble to the Phase 1 Rule clarified that, "it is appropriate to maintain these mandated

controls to remain as part of the implemented SIP

until an area attains the 8-hour NAAQS and is

redesignated to attainment." (69 FR 23983). This

accompanying preamble text clarifies that an area

must not only attain, but also must be redesignated

to attainment prior to shifting any "applicable

requirements" to contingency measures. (69 FR

23982-83). This is further supported by the portion

of § 51.905(b) that provides for the shifting of the

1-hour anti-backsliding measures to contingency

measures. Such a shift can occur only in the context

of an approved section 175A maintenance plan.

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subsequently lapses into nonattainment;

and (2) where-whether before or after

its 1-hour attainment date-a

nonattainment area has 1-hour

attainment air quality and the EPA

makes a finding of 1-hour attainment

pursuant to the Clean Data Policy that

has been in effect since 1995. They

recommended that the EPA reaffirm

these principles in its final action in this

rulemaking.

Response: The EPA reaffirms the

position stated in the proposal that

contingency measures for failure to

attain would not be triggered where an

area attains the 1-hour standard by its

attainment date, even if the area

subsequently lapses into nonattainment.

However, the commenter misinterprets

the scope of the Clean Data Policy.

Clean Data Determinations under the

Clean Data Policy only suspend the

requirement to submit certain

outstanding planning requirements

(such as contingency measures that

would be triggered by a failure to attain

by the applicable attainment date). In

addition, the obligation to submit such

a SIP is suspended only for so long as

the area remains in attainment. If the

area is redesignated to attainment, the

obligation to make such submission

would no longer apply. Furthermore,

when an area is redesignated to

attainment, it may also move adopted

contingency measures linked to a failure

to attain to the contingency measure

portion of the maintenance plan. To the

extent contingency measures have been

adopted and approved into the SIP, a

Clean Data Determination under the

Clean Data Policy does not authorize the

state to remove them from the SIP. Nor

does a Clean Data Determination affect

the requirement that areas comply with

SIP-approved measures, such as

contingency measures. Thus, if an area

fails to attain by its attainment date and

contingency measures approved into the

SIP are triggered by that failure, a Clean

Data Determination that is issued

subsequently would not suspend the

obligation to implement the contingency

measures consistent with terms of the

approved SIP.

Comment: One state agency

commenter supported removing the

vacated provision of the regulations that

provided that states need not retain 1-

hour standard contingency measures for

failure to attain or make reasonable

further progress toward attaining the 1-

hour standard.

Response: The EPA has removed the

vacated provision from the regulatory

text.

Comment: One state agency

commenter supported use of the Clean

Data Policy for the 1-hour standard but

does not agree with the portion of the

policy that would require states to meet

any planning requirements stayed

pursuant to the policy if there is a

subsequent violation of a revoked

standard.

Response: We note first that the

proposed rule did not set forth any

proposal concerning the Clean Data

Policy, but merely described a situation

in which the Clean Data Policy might be

applied. As noted in the Clean Data

Policy and the regulation codifying that

policy for purposes of the 1997 8-hour

ozone standard, a determination of

attainment suspends the obligation to

submit certain planning requirements

for only so long as the area continues to

attain the standard. We note that

redesignation of the area to attainment

for the 1997 8-hour standard would

relieve the area permanently of the

obligation to submit such planning SIPs.

D. Section 185 Fee Program for 1-Hour

NAAQS

1. Proposal

The EPA proposed to remove the

language relating to the vacated

provisions of the Phase 1 Rule that did

not retain the requirement for areas that

were classified as Severe or Extreme for

the 1-hour standard at the time of

designation for the 1997 8-hour

standard to include in their SIP a CAA

section 185 penalty fee program for the

1-hour standard (i.e., 40 CFR

51.905(e)(2)(ii)). In South Coast, the

Court vacated this exemption provision.

2. Final Rule

We are removing the language in 40

CFR 51.905(e)(2)(ii) that did not retain

the requirement for areas that were

classified as Severe or Extreme for the

1-hour standard at the time of

designation for the 1997 8-hour

standard to include a CAA section 185

penalty fee program for the 1-hour

standard in their SIP.

3. Comments and Responses

Comment: Several commenters

expressed support for not defining the

1-hour section 185 fee provision as an "applicable requirement", as

promulgated in § 51.905(e), and

indicated that the fees should only

apply until an area attains the 1-hour

standard.

Response: The EPA believes that not

defining the section 185 fee provision as

an "applicable requirement" is in

conflict with the ruling of the Court.

Nevertheless, in this rulemaking, the

only issue the EPA is addressing

regarding the applicability of section

185 requirements is the removal of the

regulatory provision that was vacated by

the Court in South Coast. Exactly how

the EPA plans to address this applicable

anti-backsliding requirement for section

185 fee programs will be addressed in

separate action.

Comment: Several commenters

oppose the requirement to have 3 years

of attaining air quality data under the

Clean Data Policy in order to suspend

section 185 fees temporarily. They

believe fees should be suspended for

any year with data indicating

compliance with the 1-hour standard.

They believe requiring a 3-year period

of attainment is a more appropriate

criterion for permanent cessation of the

1-hour section 185 fees.

Response: In this rulemaking, the only

issue the EPA is addressing regarding

the section 185 requirements is the

removal of the regulatory provision that

was vacated by the Court in South

Coast. The EPA plans to address antibacksliding requirements for section 185

fee programs in separate action.

E. Deletion of Obsolete 1-Hour Ozone

Standard Provision

1. Proposal

The EPA proposed to delete 40 CFR

50.9(c) because it is obsolete. In the

proposal the EPA explained that when

we promulgated the 8-hour ozone

standard on July 18, 1997 (62 FR 38856),

we also revised 40 CFR 50.9 to provide

that the 1-hour ozone standard would be

revoked for an area once the EPA

determined that the area had air quality

meeting the 1-hour standard.

Subsequently, because the pending

litigation over the 1997 8-hour NAAQS

created uncertainty regarding the 8-hour

NAAQS and associated implementation

requirements, we revised 40 CFR 50.9 to

place two limitations on our authority to

apply the revocation rule: (1) The 1997

8-hour NAAQS must no longer be

subject to legal challenge, and (2) it

must be fully enforceable. 18 (65 FR

45182, July 20, 2000). These limitations

were codified as § 50.9(c). In the final

Phase 1 Rule, we again revised § 50.9,

this time to revise § 50.9(b) to provide

for revocation of the 1-hour standard 1

year after designation of areas for the

1997 8-hour ozone standard. However,

according to our proposal, in

promulgating the Phase 1 rule, we

neglected to remove paragraph (c)

which was no longer necessary since the

18 In addition, in June 2003, we stayed our

authority to apply the revocation rule pending our

reconsideration in the implementation rule for the

1997 NAAQS of the basis for revocation. (68 FR

38160, June 26, 2003). We completed that

reconsideration in the Phase 1 Rule, which was

published in the Federal Register of April 30, 2004.

(69 FR 23951).

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8-hour standard is no longer subject to

legal challenge and the standard has

been upheld and is enforceable.

American Trucking Assoc. v. EPA, 283

F.3d 355. (D.C. Cir. 2002) (resolving all

remaining legal challenges to the 8-hour

ozone standard and upholding the

EPA's rule establishing that standard.)

2. Final Rule

In reviewing the regulatory text in

light of one of the comments received

on the proposal, we realized that we

incorrectly described the obsolete

regulatory text in 50.9(c). The language

described in the proposal, which stayed

the EPA's authority to revoke the 1-hour

ozone standard while the 8-hour

standard remained subject to legal

challenge, was language that was

actually removed in the Phase 1 Rule

(69 FR 23951, Apr. 30, 2004). That

language was added to the second

sentence of 50.9(b) at the time that the

status of the 1997 8-hour standard

remained uncertain because of the

ongoing litigation challenging that

standard and our ability to enforce it.

(65 FR 45200, July 20, 2000.) Because

the litigation challenging the 1997

standard and our ability to enforce that

standard was fully resolved, we deleted

that regulatory language in the Phase 1

Rule.

However, in June 2003, consistent

with a settlement agreement in a lawsuit

challenging the revocation provision we

had promulgated simultaneous with the

1997 ozone standard, we separately

stayed our authority to revoke the 1-

hour ozone standard. (68 FR 38163, June

26, 2003). Specifically, we added 40

CFR 50.9(c), which provides that our

authority to revoke the 1-hour ozone

standard is stayed until "EPA issues a

final rule revising or reinstating" the

revocation authority and considers and

addresses certain issues in that

rulemaking process. We considered and

addressed those issues in the

rulemaking for implementing the 1997

ozone standard and as part of the final

Phase 1 Rule. We revised and reinstated

our authority to revoke the 1-hour

standard. (68 FR 32818-19, June 2,

2003; 69 FR 23969-71, April 30, 2004).

However, we neglected at that time to

remove 40 CFR 50.9(c), which became

obsolete upon the issuance of the Phase

1 Rule.

Despite the confusion created by our

incorrect description in the proposed

rule, we are deleting 40 CFR 50.9(c). As

provided above, the provision is

obsolete because the future rulemaking

it refers to is the Phase 1 Rule, which

was promulgated in April 2004.

Although we incorrectly described the

provision in the proposal, we correctly

indicated that the provision was

obsolete and thus we are deleting it in

this final action as proposed.

3. Comments and Responses

Comment: One commenter expressed

concern about the background

statements and explanation regarding

the removal of 40 CFR 50.9(c). The

commenter claims there is an incorrect

citation in the preamble. In the

Background discussion at 74 FR 2938,

col 2, paragraph B, the proposal said,

referring to the two limitations we

placed on our authority to apply the

revocation rule, that "These limitations

were codified as § 50.9(c)."

Response: As provided above, we

recognize that the explanation in the

proposal was confusing because we

described regulatory text that was

removed from 40 CFR 50.9(b) at the time

we promulgated the Phase 1 Rule, rather

than describing the regulatory text we

planned to delete, which is provided in

40 CFR 50.9(c). However, as explained

above, the regulatory text in 50.9(c) is

obsolete as noted in the proposal and

thus we are moving forward to remove

it from the CFR as proposed.

Comment: One environmental

commenter expressed concern about

confusing language in 40 CFR 50.9(b)

and recommended that the second

sentence of that provision be removed.

Response: Paragraph (b) of § 50.9

states that the 1-hour standards set forth

in the section will remain applicable to

all areas notwithstanding the

promulgation of 8-hour ozone standards

under § 50.10. The 1-hour NAAQS set

forth in paragraph (a) of the section will

no longer apply to an area one year after

the effective date of the designation of

that area for the 8-hour ozone NAAQS

pursuant to section 107 of the Clean Air

Act. Area designations and

classifications with respect to the 1-hour

standards are codified in 40 CFR part

81.

The commenter does not specify why

the sentence is confusing and we

disagree that it is. Rather, that sentence

is the operative sentence for revoking

the 1-hour standard. Pursuant to this

sentence of the regulation, the 1-hour

standard was revoked for most areas on

June 15, 2005, the date 1 year after their

effective date of designation for the 1997

8-hour standard. For 13 EAC 19 areas

with a deferred effective date of

19 Early Action Compacts (EAC) allowed states to

pledge to meet the 1997 8-hour ozone standard

earlier than required. State seeking an EAC must

meet a number of criteria and must agree to meet

certain milestones. The most significant milestone

was that the EAC areas had to be in attainment by

December 31, 2007, based on air quality data from

2005, 2006, and 2007.

designation, the 1-hour standard was

revoked April 15, 2009, the date 1 year

following their effective date of

designation as attainment for the 1997

NAAQS. For the Denver EAC area,

which was designated nonattainment

for the 1997 NAAQS effective November

20, 2007, the 1-hour standard was

revoked November 20, 2008. We believe

that it is important to retain this

sentence because it specifies the time at

which the 1-hour standard, identified in

40 CFR 51.9(a), no longer applied to

areas.

F. Other Comments

Comment: Several commenters

advised that this rulemaking addressing

the 1997 ozone standard should be

integrated with planning to address the

2008 ozone NAAQS. Several

commenters recommended that

addressing the 1997 standard should not

result in additional paperwork beyond

what is needed for the 2008 standard.

One commenter recommended that the

EPA rulemaking focus on

implementation of the 2008 ozone

NAAQS and deal with implementation

deficiencies of the 1997 standard within

the context of implementing the 2008

NAAQS. One local air agency

commenter argued that reclassification

of subpart 1 areas should not be a

priority concern when viewed against

other more important priorities, such as

implementation of the 2008 ozone

NAAQS.

Response: The Court in South Coast

vacated portions of the Phase 1 Rule

that addressed certain anti-backsliding

provisions for the 1-hour standard and

the portion of the rule that classified

certain 1997 8-hour standard

nonattainment areas under subpart 1.

We plan to address the transition from

the 1997 standard to the 2008 standard

in separate rulemaking.

Comment: One commenter noted that

there are several provisions of subpart X

that continue to refer to subpart 1 even

though the EPA has now proposed to

classify all nonattainment areas for the

1997 ozone standard under subpart 2.

These include §§ 51.908(b), 51.910(b),

51.912(c) and the portions of § 51.915

that are subject to § 51.902(b). The

commenter suggests that these

provisions may be extraneous if there

are no areas covered under subpart 1.

Response: As an initial matter, we

note that the general implementation

requirements in subpart 1 also apply to

areas classified under subpart 2; thus,

we cannot automatically conclude that

the provisions referred to by the

commenter are extraneous. We choose

to err on the side of retaining provisions

that may not apply to any areas rather

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than to remove them in this final rule

without notice and an opportunity for

comment.

Comment: One environmental

organization commenter indicated

support for the proposal only if the rule

could be interpreted as requiring

Marginal areas to meet the CAA

reasonably available control measures

(RACM) requirement. The commenter

noted that the Denver area was a former

EAC area that failed to attain and was

subsequently designated nonattainment.

Under the proposed rule, Denver would

be classified as Marginal. The

commenter pointed out that the table in

the proposal that summarized CAA

requirements applicable under both

subparts 1 and 2 indicates that RACM

(under subpart 1) applies to subpart 2

areas also and thus should apply to

Marginal areas.

Response: It is true that the RACM

requirement, which is contained in

subpart 1, applies to areas classified

under subpart 2. However, the EPA has

interpreted the RACM requirement for

many years in the context of the

requirement to demonstrate attainment

as expeditiously as practicable and

subpart 2 specifically exempts Marginal

areas from the requirement to submit an

attainment demonstration. In light of

that exemption, the EPA has historically

not required Marginal areas to meet the

RACM test required of Moderate and

higher classified areas. However, we

note that under our EAC regulations, we

required EAC areas that were

subsequently designated nonattainment

(like Denver) to submit an attainment

demonstration within 1 year of the

effective date of designation. 40 CFR

81.300(e)(3)(ii)(D). Therefore, the RACM

requirements currently apply to the

Denver nonattainment area.

Comment: One state air agency

commenter recommended that the EPA

should approve requests for

redesignation to attainment for the

1-hour ozone standard.

Response: Because the EPA revoked

the 1-hour ozone standard, the EPA

indicated in the Phase 1 Rule that we

were no longer obligated to redesignate

areas to attainment or nonattainment for

the 1-hour standard because once that

standard was revoked it was no longer

effective in an area. See 40 CFR

51.905(e). We are not reconsidering that

issue as a part of this rulemaking.

Comment: Several environmental

commenters alleged that there were

incorrect statements in the discussion of

conformity in the anti-backsliding

portion of the proposal. In one

comment, the commenter says:

On page 2940, column 1 of the proposal,

the EPA states: "Areas that would be

reclassified under subpart 2 are already

satisfying the applicable CAA section 176(c)

conformity requirements for the 1997 8-hour

ozone standard." The EPA offers no evidence

and analysis to support this claim, which

goes far beyond the scope of the rulemaking

proposal. It is neither necessary nor

appropriate for the EPA to make a blanket

statement that areas that would be

reclassified are already in fact satisfying

applicable conformity requirements. What

the EPA can say is that areas that would be

reclassified under subpart 2 are already

required to satisfy applicable section 176(c)

conformity requirements for the 8-hour

standard.

In another comment they say:

The EPA is also incorrect in stating (at

2941 n.18) that 40 C.F.R. § 51.905(e)(3) does

not require revision. That rule includes

language stating that "any state conformity

provisions in an applicable SIP that require

1-hour ozone conformity determinations are

no longer federally enforceable." The DC

Circuit has ruled that the EPA cannot declare

conformity provisions of an approved SIP to

be unenforceable. Environmental Defense v.

EPA, 467 F.3d 1329, 1337 (D.C. 2 Cir. 2006).

The approved provisions of a SIP remain

enforceable until the state submits and the

EPA approves their revocation. Id.

Accordingly, 40 CFR § 51.905(e)(3) must be

revised to delete the above-quoted clause.

Response: We agree with the first

comment that the quoted sentence was

worded poorly. We did not intend by

that statement to make a determination

that any specific area is satisfying the

conformity requirements. We agree with

the commenter's suggestion as to how

the statement could have been better

phrased.

Regarding the second statement, we

disagree that 40 CFR 51.905(e)(3)

requires revision. That regulatory

provision states that "[u]pon 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." Since

there is no 1-hour NAAQS, there is no

ongoing conformity requirement for that

NAAQS under section 176(c). The

regulation also specifically refers to

section 176(c)(5), which states that

conformity determinations apply only

in nonattainment and maintenance

areas. Therefore, the intent of the

regulations is to clarify that SIP

provisions requiring conformity

demonstrations for the revoked 1-hour

NAAQS are essentially meaningless in

light of section 176(c)(5). Of course,

1-hour ozone budgets in approved SIPs

must be used to demonstrate conformity

to the 8-hour ozone NAAQS if no 8-hour

ozone budget exists.

Comment: Several environmental

commenters allege that the Clean Data

Policy is unlawful. One commenter

states that for reasons explained in

briefs filed in NRDC v. EPA, No. 06-

1045 (D.C. Cir.) (which were

incorporated by reference, and attached

to the comment), the EPA is completely

without authority to suspend the Act's

mandates for submission and

implementation of these SIP

components merely because an area is

meeting standards at a given point in

time. They note that the Act provides no

exception or waiver for submission of

these SIP elements on grounds of

temporary attainment. To the contrary,

they note that section 175A(c) of the Act

makes crystal clear that all requirements

for nonattainment areas must remain in

full force and effect unless and until the

area is redesignated to attainment and

has an approved maintenance plan. For

all of these same reasons, they claim the

EPA cannot suspend any Part D

requirements retained pursuant to the

Act's anti-backsliding provisions merely

because an area is temporarily meeting

either the 1-hour or 8-hour standards.

They assert that the EPA's "clean data"

policy is nothing more than an illegal

attempt to circumvent the Act's

redesignation provisions, section

107(d)(3)(E) and 175A(c).

Another environmental organization

commenter also alleged that the EPA

lacks authority to suspend controls from

a SIP by finding the area is meeting the

1-hour standard. That commenter

alleged that the CAA's redesignation

procedures of section 107 provide a

specific method that a nonattainment

area must follow in order to remove

controls from a SIP. They note that the

CAA is silent on any alternative manner

for a nonattainment area to remove

controls from its SIP, besides being

redesignated to a different classification.

They thus claim it is clear that Congress

intended the extensive redesignation

process described in section 107 to be

the only manner in which an area was

to be permitted to remove controls from

its SIP. The commenter also notes that

the proposed rule ignores the

statutorily-required redesignation

procedures provided in section 107. The

commenter further claims that even

assuming the Clean Data Policy is valid

as written, it cannot be used to waive

fees required under section 185 of the

CAA. They point out that the 1995 Seitz

memorandum has never even applied to

waive the section 185 fees controls, only

other planning requirements. Thus, the

EPA would take the Seitz memorandum

reasoning beyond the situations to

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which it purported to apply, yet the

EPA does not even acknowledge this

extension, much less explain why the

Seitz memo rationale can be extended to

section 185 fees. The commenter further

notes that the 1-hour standard is no

longer the standard that the EPA deems

requisite to protect public health with

an adequate margin of safety. Therefore,

they argue, attaining the 1-hour

standard should have no bearing on

whether a state may remove

contingency measures from its SIP.

Response: The Clean Data Policy, first

articulated by the EPA in 1995 with

regard to the 1-hour ozone standard, and

subsequently upheld by several Courts

of Appeals, is not unlawful. The EPA's

interpretation of the Clean Data Policy

for the 1-hour ozone standard is the

basis for its Clean Data Policy regulation

for the 8-hour ozone standard, which

was codified at 40 CFR 51.918 and

upheld by the D.C. Circuit in NRDC v.

EPA 571 F.3d 1245 (D.C. Cir. 2009).

A commenter objects to the Clean

Data Policy because it is not "a valid

manner of removing controls from a

SIP," and that it "permits EPA to

remove applicable controls from an

area's SIP by merely making a 'factual

finding' of attainment." This comment

misconstrues the Clean Data Policy-it

is not applied to remove any controls

from the SIP. Rather, it is the EPA's

interpretation that the obligation to

submit certain requirements, including

those for RFP and contingency

measures, is suspended for so long as an

area attains the standard. Once SIP

provisions have been approved into the

SIP, the Clean Data Policy does not

operate to remove them. The same

commenter contends that attainment of

the 1-hour standard should have no

significance because it has been

"discarded." Although the 1-hour

standard has been revoked, the 1-hour

designation and classification status of

an area at the time of designation for the

8-hour standard remains the basis for

determining the 1-hour ozone antibacksliding requirements for that area.

Independent of and in addition to the

1-hour standard, the EPA continues to

separately implement the 8-hour ozone

standard and all requirements

applicable under that NAAQS. As the

EPA noted in its proposal, attainment of

and redesignation for the 8-hour

standard also affects the antibacksliding requirements under the

1-hour standard. 40 CFR 51.905(b)

Proposal at 74 FR 2942.

The EPA's Clean Data Policy does not

expressly address the suspension of the

requirement that affected emissions

sources submit section 185 fees.

Substantive issues concerning when and

how section 185 fees apply for purposes

of the 1-hour standard are not addressed

as part of this rulemaking action and

thus we are not addressing substantive

comments on such issues here.

G. A Correction to a Footnote in

Proposed Rule

The January 16, 2009, proposed rule,

in the discussion of contingency

measures, stated, "In situations where a

1-hour ozone nonattainment area is in

attainment based on current air quality

(e.g., after the area's attainment date),

EPA can propose to make a finding of

attainment." Footnote 16 followed that

sentence and read as follows: "This

applies even if the area did not attain by

the attainment date; however, the CAA

requires EPA in these cases to make a

finding of failure to attain by the

attainment date and either reclassify the

area or apply other requirements (such

as section 185) as specified for the area's

classification." (74 FR at 2941, 2942;

January 16, 2009.) The text "however,

the CAA requires EPA in these cases to

make a finding of failure to attain by the

attainment date and either reclassify the

area or apply other requirements (such

as section 185) as specified for the area's

classification" was in error and should

have been deleted. The wording would

have been appropriate had the situation

applied to an existing ozone standard,

such as the 1997 8-hour standard.

However, for the revoked 1-hour

standard, EPA has adopted a regulation,

that was not challenged, providing that

upon revocation of the NAAQS, the EPA

would no longer be obligated to make

findings of failure to attain the 1-hour

standard or to reclassify areas for failure

to attain the 1-hour standard by the

area's attainment date under the 1-hour

standard. (See 40 CFR 51.905(e)(2)(i).)

Thus, the EPA is clarifying that the

portion of footnote 16 stating that the

EPA remains obligated to make a

finding of failure to attain the 1-hour

ozone standard by an area's attainment

date (under section 181(b)(2) or section

179(c)) and to reclassify the area was

erroneous and in conflict with

§ 51.905(e)(2)(i).

IV. Statutory and Executive Order

Reviews

A. Executive Order 12866: Regulatory

Planning and Review and Executive

Order 13563: Improving Regulation and

Regulatory Review

Under Executive Order 12866 (58 FR

51735, October 4, 1993), this action is a

significant regulatory action because it

raises novel legal or policy issues

arising out of legal mandates.

Accordingly, the EPA submitted this

action to the Office of Management and

Budget (OMB) for review under

Executive Orders 12866 and 13563 (76

FR 3821, January 21, 2011) and any

changes made in response to OMB

recommendations have been

documented in the docket for this

action.

B. Paperwork Reduction Act

This action does not impose any new

information collection burden. This

action sets forth the EPA's rule for

addressing portions of the partial

vacatur of the EPA's Phase 1 Rule for

implementation of the 1997 8-hour

ozone NAAQS. However, OMB has

previously approved the information

collection requirements contained in the

existing Phase 1 Rule (April 30, 2004; 69

FR 23951) and the Phase 2 Rule

(November 29, 2005; 70 FR 71612)

regulations and has been assigned OMB

Control Number 2060-0594. The OMB

control numbers for the EPA's

regulations in 40 CFR are listed in 40

CFR part 9.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA)

generally requires an Agency to prepare

a regulatory flexibility analysis of any

regulation subject to notice-andcomment rulemaking requirements

under the Administrative Procedures

Act or any other statute unless the

Agency certifies the rule will not have

a significant economic impact on a

substantial number of small entities.

Small entities include small businesses,

small organizations, and small

governmental jurisdictions.

For purposes of assessing the impacts

of these regulation revisions on small

entities, small entity is defined as: (1) A

small business that is a small industrial

entity as defined in the U.S. Small

Business Administration (SBA) size

standards (See 13 CFR 121.); (2) A

governmental jurisdiction that is a

government of a city, county, town,

school district or special district with a

population of less than 50,000; and (3)

A small organization that is any not-forprofit enterprise which is independently

owned and operated and is not

dominant in its field.

After considering the economic

impact of these revisions to the

regulations on small entities, I certify

that this action will not have a

significant economic impact on a

substantial number of small entities.

This rule will not impose any

requirements on small entities. The EPA

is aware that the two small entities

listed in Table 2, Essex County and

Jamestown, NY, have either satisfied the

requirements through previous SIP

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revisions or certain requirements have

been suspended due to receiving a

Clean Data Determination.

D. Unfunded Mandates Reform Act

This action contains no federal

mandate under the provisions of Title II

of the Unfunded Mandates Reform Act

of 1995 (UMRA), 2 U.S.C. 1531-1538 for

state, local, or tribal governments or the

private sector. This rule restores

provisions that existed under the 1-hour

ozone standard and that would have

continued under the 1-hour standard

had not the EPA issued a revised ozone

standard. Those provisions were

revoked when the EPA revoked the 1-

hour standard itself. Although a court

upheld the EPA's right to revoke the 1-

hour standard, the court ruled that the

EPA erroneously revoked several 1-hour

NAAQS provisions and vacated those

portion of the EPA's rule. Thus, the

court's own ruling restored the former 1-

hour NAAQS provisions. This rule

merely sets forth a corrective regulatory

mechanism for restoring the 1-hour

provisions that the court had already

restored. Therefore, this action is not

subject to the requirements of section

202 and 205 of the UMRA.

This action is also not subject to the

requirements of section 203 of UMRA

because it contains no regulatory

requirements that might significantly or

uniquely affect small governments. The

EPA has determined that these

regulation revisions contain no

regulatory requirements that may

significantly or uniquely affect small

governments, including tribal

governments.

E. Executive Order 13132-Federalism

Executive Order 13132, entitled

"Federalism" (64 FR 43255, August 10,

1999), requires the EPA to develop an

accountable process to ensure "meaningful and timely input by state

and local officials in the development of

regulatory policies that have Federalism

implications." Policies that have

"Federalism implications" are defined

in the Executive Order to include

regulations that have "substantial direct

effects on the states, on the relationship

between the national government and

the states, or on the distribution of

power and responsibilities among the

various levels of government."

This action does not have Federalism

implications. It will not have substantial

direct effects on the states, on the

relationship between the national

government and the states, or on the

distribution of power and

responsibilities among the various

levels of government, as specified in

Executive Order 13132. This rule

restores provisions that existed under

the 1-hour ozone standard and that

would have continued under the 1-hour

standard had not the EPA issued a

revised ozone standard. Those

provisions were revoked when the EPA

revoked the 1-hour standard itself.

Although a court upheld the EPA's right

to revoke the 1-hour standard, the court

ruled that the EPA erroneously revoked

several 1-hour NAAQS provisions and

vacated those portion of the EPA's rule.

Thus, the court's own ruling restored

the former 1-hour NAAQS provisions.

This rule merely sets forth a corrective

regulatory mechanism for restoring the

1-hour provisions that the court had

already restored. Thus, Executive Order

13132 does not apply to these regulation

revisions.

In the spirit of Executive Order 13121

and consistent with the EPA policy to

promote communications between EPA

and state and local governments, the

EPA solicited comments on the proposal

from state and local officials.

F. Executive Order 13175-Consultation

and Coordination With Indian Tribal

Governments

This action does not have tribal

implications as specified in Executive

Order 13175. It does not have a

substantial direct effect on one or more

Indian tribes, since no tribe has to

develop a SIP under these regulatory

revisions. Furthermore, these regulation

revisions do not affect the relationship

or distribution of power and

responsibilities between the Federal

government and Indian tribes. The CAA

and the Tribal Air Rule establish the

relationship of the Federal government

and Tribes in developing plans to attain

the NAAQS, and these revisions to the

regulations do nothing to modify that

relationship. Thus, Executive Order

13175 does not apply.

The EPA specifically solicited

additional comment on the proposed

revisions to the regulations from tribal

officials.

G. Executive Order 13045: Protection of

Children From Environmental Health

and Safety Risks

The EPA interprets Executive Order

13045 (62 FR 19885, April 23, 1997) as

applying only to those regulatory

actions that concern health or safety

risks, such that the analysis required

under section 5-501 of the EO has the

potential to influence the regulation.

This action is not subject to Executive

Order 13045 because these rule

revisions address NAAQS-related SIP

obligations of the CAA. The NAAQS are

promulgated to protect the health and

welfare of sensitive populations,

including children. However, the EPA

solicited comments on whether the

proposed action would result in an

adverse environmental effect that would

have a disproportionate effect on

children. No comments were received

on this specific topic.

H. Executive Order 13211: Actions That

Significantly Affect Energy Supply,

Distribution, or Use

This action is not a "significant

energy action" as defined in Executive

Order 13211 (66 FR 28355 (May 22,

2001)), because it is not likely to have

a significant adverse effect on the

supply, distribution, or use of energy.

L National Technology Transfer and

Advancement Act

Section 12(d) of the National

Technology Transfer and Advancement

Act of 1995 ("NTTAA"), Public Law

104-113, 12(d) (15 U.S.C. 272 note)

directs the EPA to use voluntary

consensus standards in its regulatory

activities unless to do so would be

inconsistent with applicable law or

otherwise impractical. Voluntary

consensus standards are technical

standards (e.g., materials specifications,

test methods, sampling procedures, and

business practices) that are developed or

adopted by voluntary consensus

standards bodies. NTTAA directs the

EPA to provide Congress, through OMB,

explanations when the Agency decides

not to use available and applicable

voluntary consensus standards.

This rulemaking does not involve

technical standards. Therefore, the EPA

did not consider the use of any

voluntary consensus standards.

J. Executive Order 12898: Federal

Actions To Address Environmental

Justice in Minority Populations and

Low-Income Populations

Executive Order (EO) 12898 (59 FR

7629 (Feb. 16, 1994)) establishes Federal

executive policy on environmental

justice. Its main provision directs

Federal agencies, to the greatest extent

practicable and permitted by law, to

make environmental justice part of their

mission by identifying and addressing,

as appropriate, disproportionately high

and adverse human health or

environmental effects of their programs,

policies, and activities on minority

populations and low-income

populations in the United States.

The EPA has determined that this rule

will not have disproportionately high

and adverse human health or

environmental effects on minority or

low-income populations because it does

not affect the level of protection

provided to human health or the

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environment. The revisions to the

regulations revise SIP obligations

related to the ozone NAAQS, which are

designed to protect all segments of the

general populations. As such, they do

not adversely affect the health or safety

of minority or low income populations

and are designed to protect and enhance

the health and safety of these and other

populations.

K. Congressional Review Act

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. The EPA will

submit a report containing this rule and

other required information to the U.S.

Senate, the U.S. House of

Representatives, and the Comptroller

General of the United States prior to

publication of the rule in the Federal

Register. A major rule cannot take effect

until 60 days after it is published in the

Federal Register. This action is not a "major rule" as defined by 5 U.S.C.

804(2). This rule will be effective June

13, 2012.

L. Determination Under Section 307(d)

Pursuant to sections 307(d)(1)(E) and

307(d)(1)(V) of the CAA, the

Administrator determines that this

action is subject to the provisions of

section 307(d). Section 307(d)(1)(V)

provides that the provisions of section

307(d) apply to "such other actions as

the Administrator may determine."

V. Statutory Authority

The statutory authority for this action

is provided 42 U.S.C. 7409; 42 U.S.C.

7410; 42 U.S.C. 7511-7511f; 42 U.S.C.

7601(a)(1).

List of Subjects

40 CFR Part 50

Environmental protection, Air

pollution control, Ozone.

40 CFR Part 51

Air pollution control,

Intergovernmental relations, Ozone,

Transportation, Nitrogen oxides,

Volatile organic compounds.

40 CFR Part 81

Air pollution control.

Dated: April 27, 2012.

Lisa P. Jackson,

Administrator.

For the reasons stated in the

preamble, title 40, chapter I of the Code

of Federal Regulations is amended as

follows:

PART 50-NATIONAL PRIMARY AND

SECONDARY AMBIENT AIR QUALITY

STANDARDS

m 1. The authority citation for part 50

continues to read as follows:

Authority: 42 U.S.C. 7401, et seq.

§ 50.9 [Amended]

* 2. Section 50.9 is amended by

removing paragraph (c).

PART 51-REQUIREMENTS FOR

PREPARATION, ADOPTION, AND

SUBMITTAL OF IMPLEMENTATION

PLANS

* 3. The authority citation for part 51

continues to read as follows:

Authority: 23 U.S.C. 101; 42 U.S.C. 7401-

7671q.

Subpart X-[Amended]

* 4. Section 51.900 is amended by

adding paragraph (f)(14) to read as

follows:

§51.900 Definitions. * * * * *

(f) * * *

(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. * * * * *

* 5. Section 51.902 is revised to read as

follows:

§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].

* 6. Section 51.905 is amended by:

m a. Revising the section heading.

* b. Adding a sentence to the end of

paragraph (b).

m c. Removing and reserving paragraphs

(e)(2)(ii) and (e)(2)(iii).

* d. Removing paragraph (e)(4).

The revisions and addition read as

follows:

§ 51.905 How do areas transition from the

1-hour NAAQS to the 1997 8-hour NAAQS

and what are the anti-backsliding

provisions?

* * * * *

(b) * * * 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. * * * * *

(e) * * *

(2) * * *

(ii) [Reserved]

(iii) [Reserved] * * * * *

PART 81-DESIGNATION OF AREAS

FOR AIR QUALITY PLANNING

PURPOSES

* 7. The authority citation for part 81

continues to read as follows:

Authority: 42 U.S.C. 7401, et seq.

Subpart C-Section 107 Attainment

Status Designations

* 8. In § 81.303, the table entitled

"Arizona-Ozone (8-Hour Standard)" is

amended by revising the entries for

Phoenix-Mesa, AZ: Maricopa County

(part) and Pinal County (part) to read as

follows:

§ 81.303 Arizona.

ARIZONA-OZONE [8-HOUR STANDARD]

Designation a Category/classification

Designated area

Date 1 Type Date 1 Type

Phoenix-Mesa, AZ:

28441

Maricopa County (part) .......................................................................... 6/13/12 Subpart 2/Marginal. .................... Nonattainm ent .....................

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