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6560-50-P

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 50, 51 and 81

[EPA-HQ-OAR-2007-0956, FRL-_____]

RIN 2060-AO96

Final Rule to Implement the 1997 8-Hour Ozone National Ambient Air 

Quality Standard: Classification of Areas That Were Initially 

Classified as Subpart 1; Revision of the Anti-Backsliding 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 

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 
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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 [INSERT 30 DAYS FROM DATE OF 

PUBLICATION IN THE FEDERAL REGISTER]. 

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, 
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NC 27711, phone number (919) 54l-2363, fax number (919) 54l-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-Mesa

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 & Love
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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 ground-level 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/naaqs/ozone/o3imp8hr/.

C. How is this document organized?

The information presented in this Document is organized as follows: 

I. 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?
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III. 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. Reclassification of Subpart 1 Areas.

b. Timing of SIP Submission under New 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.

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.
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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 NAAQS1 (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 al., 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 anti-backsliding requirements 

relating to 1-hour nonattainment NSR, the CAA section 185 penalty 

fees for failure to attain the 1-hour standard, and 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 

 

1 74 FR 2936, January 16, 2009.
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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 
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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 

 

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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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 newly-classified 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 Marginal for an 

area that is currently violating the standard, the EPA would not 
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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 
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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 
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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 

 

4 Denver’s special circumstances 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)
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maximum statutory attainment date of June 15, 2007. Since the 

Marginal area attainment date of June 15, 2007 has passed, any area 

that 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.
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 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 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”.)

 

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. 
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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 are reclassified 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.

 

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 

4

th 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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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

State Area

2004 Initial

Classification/

Design Value

2001-2003 (ppm)

Status in 2007 

(based on 

2004-2006

data)(ppm)

Current

Subpart 2 

Classification

CA Chico, CA Marginal 

(0.089)

Attaining

(0.084)

Marginal
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CA

Sutter Co.

(Sutter 

Buttes), CA

Marginal 

(0.088)

Attaining

(0.081)

Marginal

NV Las Vegas, 

NV

Marginal 

(0.086)

Attaining

(0.083)

Marginald,e

AZ PhoenixMesa, AZ

Marginal 

(0.087)

Attaining

(0.083)

Marginale

CO

DenverBoulderGreeley-Ft 

CollinsLove, CO

Marginala

(0.087)

Attaininga

(0.082)

Marginal

NY

AlbanySchenectady

-Troy, NY

Marginal 

(0.087)

Attaining

(0.078)

Marginald

NY Rochester, 

NY

Marginal 

(0.088)

Attaining

(0.074)

Marginald

NY

Essex Co.

(Whiteface 

Mtn), NY

Marginal 

(0.091)

Attaining

(0.071)

Marginald

CA

Amador and 

Calaveras 

Counties 

(Central 

Mtn), CA

Marginal 

(0.091)

Not 

attaining

(0.093)

b

Moderate

CA

Mariposa 

and 

Tuolumne 

Counties 

(Southern 

Mtn),CA

Marginal 

(0.091)

Not 

attaining

(0.086)

c

Moderate

NY

BuffaloNiagara 

Falls, NY

Moderate 

(0.099) n/a Moderated

PA

PittsburghBeaver 

Valley, PA

Moderate 

(0.094) n/a Moderated

NY Jamestown, 

NY

Moderate 

(0.094) n/a Moderated

CA

Kern Co.

(Eastern 

Kern), CA

Moderate 

(0.098) n/a Moderate

CA

Nevada Co. 

(Western 

Part), CA

Moderate 

(0.098) n/a Moderate

CA San Diego, 

CA

Moderate 

(0.093) n/a Moderate

Notes 
Page 18 of 103

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 became 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.

b. Amador 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.

c. Mariposa 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) 4

th 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.

d. Albany-Schenectady-Troy, Rochester, Essex County, Buffalo, 

Pittsburgh, Jamestown, and Las Vegas have received Clean Data 

Determinations. e. Las Vegas and Phoenix have requested 

redesignation to attainment.
Page 19 of 103

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 NOx 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 Buffalo-Niagara, NY) have 

already submitted SIPs to address the VOC and NOx 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
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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 

 

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-SchenectadyTroy, 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 Areas to Attainment,” John Calcagni, 

Director, Air Quality Management Division, September 4, 1992. 

See

http://www.epa.gov/ttn/oarpg/t5/memoranda/redesignmem090492.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. However, such 

requirements remain due until EPA completes final action 

approving a redesignation request.
Page 21 of 103

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.)

Ozone Subpart 2 SIP 

Requirement

(CAA Section)

Marginal 

Areas

Moderate 

Areas

Is Requirement 

Suspended by 

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

Vehicle I/M 

(§182(a)(2)(B), (b)(4))

Not 

Required Required+ No

+ 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 
Page 22 of 103

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 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)).10 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).

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 

 

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)).
Page 23 of 103

absurd results because the area had recently dropped the vehicle 

I/M program in the wake of meeting the 1-hour ozone 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. 
Page 24 of 103

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 
Page 25 of 103

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 nonarbitrary 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.
Page 26 of 103

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 
Page 27 of 103

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.11 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 

 

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).
Page 28 of 103

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 “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.
Page 29 of 103

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 
Page 30 of 103

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 
Page 31 of 103

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.
Page 32 of 103

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 
Page 33 of 103

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 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 
Page 34 of 103

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. § 107(d), 

42 U.S.C. § 7407(d); Pub. L. 105-178, § 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 §§ 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 § 107(d)(3)(E), and requiring 

the EPA-approved maintenance plans sufficient to remedy any 

relapse into nonattainment that occurs during the 20-year period 
Page 35 of 103

following redesignation. CAA §§ 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 
Page 36 of 103

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 
Page 37 of 103

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 
Page 38 of 103

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 backward-looking review of 

data. It avoids depriving states of the opportunity to develop 

strategies to attain the revised standard based upon where the 
Page 39 of 103

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 
Page 40 of 103

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 
Page 41 of 103

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 designation-era 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 VOC—and because reductions of 
Page 42 of 103

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 

 

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 
Page 43 of 103

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 fourth-highest 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 

 

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.) 
Page 44 of 103

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 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). 
Page 45 of 103

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).
Page 46 of 103

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

 

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 
Page 47 of 103

2. Final Rule.

This final rule addresses how anti-backsliding 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 antibacksliding requirements relating to nonattainment NSR, CAA 

section 185 penalty fees, and contingency measures as these 

requirements applied for the 1-hour 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 guidance15 and a

separate proposed rule addressing the now-applicable 1-hour 

 

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.

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).
Page 48 of 103

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.

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 
Page 49 of 103

required control for the purposes of CAA section 172(e) antibacksliding 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 

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), 
Page 50 of 103

clarified, 489 F.3d 1245 (D.C. 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 
Page 51 of 103

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 anti-backsliding 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 
Page 52 of 103

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 (D.C. 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 redesignated 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 
Page 53 of 103

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.” 
Page 54 of 103

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 June 15, 2004 and 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.

 

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.
Page 55 of 103

The Court in South Coast Air Quality Management District, 

et al., 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 antibacksliding 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 anti-backsliding

even if the area subsequently lapses into nonattainment.
Page 56 of 103

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 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 
Page 57 of 103

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 

(D. C. 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 anti-backsliding 

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 
Page 58 of 103

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.17 In addition, if 

 

17 The 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 

section 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. 
Page 59 of 103

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 subsequently lapses into 

nonattainment; and (2) where -- whether before or after its 1-

hour attainment date -- a nonattainment area has 1-hour 
Page 60 of 103

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 
Page 61 of 103

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 
Page 62 of 103

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 

section 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.
Page 63 of 103

Comment: Several commenters expressed support for not defining 

the 1-hour section 185 fee provision as an “applicable 

requirement”, as promulgated in section 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 
Page 64 of 103

South Coast. The EPA plans to address anti-backsliding 

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 

 

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).
Page 65 of 103

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 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. 
Page 66 of 103

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. 
Page 67 of 103

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 section 50.9 reads: 

(b) The 1-hour standards set forth in this 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 this section 
Page 68 of 103

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 EAC19 areas with a deferred effective date of 

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, 

 

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. 
Page 69 of 103

identified in 40 CFR section 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 
Page 70 of 103

EPA has now proposed to classify all nonattainment areas for the 

1997 ozone standard under subpart 2. These include sections 

51.908(b), 51.910(b), 51.912(c) and the portions of 51.915 that 

are subject to section 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 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.
Page 71 of 103

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. 
Page 72 of 103

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 
Page 73 of 103

enforceable.” The D.C. 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 C.F.R. 

§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 
Page 74 of 103

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 
Page 75 of 103

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, §§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 
Page 76 of 103

controls, only other planning requirements. Thus, the EPA would 

take the Seitz memorandum reasoning beyond the situations to 

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
Page 77 of 103

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 anti-backsliding 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 anti-backsliding 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.
Page 78 of 103

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 underlined text 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 
Page 79 of 103

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.
Page 80 of 103

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-and-comment 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-for-profit 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 
Page 81 of 103

number of small entities. This rule will not impose any 

requirements on small entities. 

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 
Page 82 of 103

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 
Page 83 of 103

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.
Page 84 of 103

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. 

I. National Technology Transfer and Advancement Act.
Page 85 of 103

Section 12(d) of the National Technology Transfer and 

Advancement Act of 1995 (“NTTAA”), Public Law No. 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 
Page 86 of 103

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 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.
Page 87 of 103

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

[INSERT DATE 30 DAYS AFTER PUBLICATION IN THE FEDERAL REGISTER].

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.
Page 88 of 103

Page 88 of 103 - Final Rule to Implement the 1997 8-Hour Ozone 

National Ambient Air Quality Standard: Classification of Areas 

That Were Initially Classified as Subpart 1; Revision of the 

Anti-Backsliding Provisions to Address 1-Hour Contingency 

Measure Requirements; Deletion of Obsolete 1-Hour Ozone Standard 

Provision

40 CFR Part 81

Air pollution control.

________________________________

Dated: 

________________________________

Lisa P. Jackson,

Administrator.
Page 89 of 103

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

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 and reserving 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 
Page 90 of 103

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 as follows:

a. By adding a sentence to the end of paragraph (b).

b. By removing and reserving paragraphs (e)(2)(ii) and 

(e)(2)(iii).

c. By removing paragraph (e)(4).

§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 
Page 91 of 103

and must remain in the SIP until the area is redesignated to 

attainment for the 1997 8-hour NAAQS.

* * * * * 

PART 81-- DESIGNATION OF AREAS FOR AIR QUALITY PLANNING PURPOSES

7. The authority citation for part 81 continues to read as 

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

Subpart C—Section 107 Attainment Status Designations
Page 92 of 103

8. In §81.303, the table entitled “Arizona—Ozone (8-Hour Standard)” is amended by 

revising the entry for Phoenix-Mesa, AZ: Maricopa County (part) to read as follows:

§81.303 Arizona

* * * * *

ARIZONA—OZONE [8-Hour Standard]

Designated Area Designationa Category/classification

Date1 Type Date1 Type

Phoenix-Mesa, AZ:

Maricopa County (part).............

T1N, R1E (except that portion in Indian 

Country); T1N, R2E; T1N, R3E; T1N, R4E; 

T1N, R5E; T1N, R6E; T1N, R7E; T1N, R1W; 

T1N, R2W; T1N, R3W; T1N, R4W; T1N, R5W; 

T1N, R6W; T2N, R1E; T2N, R2E; T2N, R3E; 

T2N, R4E; T2N, R5E, T2N, R6E; T2N, R7E; 

T2N, R8E; T2N, R9E; T2N, R10E; T2N, R11E; 

T2N, R12E (except that portion in Gila 

County); T2N, R13E (except that portion in 

Gila County); T2N, R1W; T2N, R2W; T2N, 

R3W; T2N, R4W; T2N, R5W; T2N, R6W; T2N, 

R7W; T3N, R1E; T3N, R2E; T3N, R3E; T3N, 

R4E; T3N, R5E; T3N, R6E; T3N, R7E; T3N, 

R8E; T3N, R9E; T3N, R10E (except that 

portion in Gila County); T3N, R11E (except 

that portion in Gila County); T3N, R12E 

(except that portion in Gila County); T3N, 

R1W; T3N, R2W; T3N, R3W; T3N, R4W; T3N, 

R5W; T3N, R6W; T4N, R1E; T4N, R2E; T4N, 

R3E; T4N, R4E; T4N, R5E; T4N, R6E; T4N, 

R7E; T4N, R8E; T4N, R9E; T4N, R10E (except 

that portion in Gila County); T4N, R11E 

(except that portion in Gila County); T4N, 

R12E (except that portion in Gila County); 

T4N, R1W; T4N, R2W; T4N, R3W; T4N, R4W; 

T4N, R5W; T4N, R6W; T5N, R1E; T5N, R2E; 

T5N, R3E; T5N, R4E; T5N, R5E; T5N, R6E; 

T5N, R7E; T5N, R8E; T5N, R9E (except that 

portion in Gila County); T5N, R10E (except 

.......... Nonattainment [INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

Subpart 2/ 

Marginal
Page 93 of 103

ARIZONA—OZONE [8-Hour Standard]

Designated Area Designationa Category/classification

Date1 Type Date1 Type

that portion in Gila County); T5N, R1W; 

T5N, R2W; T5N, R3W; T5N, R4W; T5N, R5W; 

T6N, R1E (except that portion in Yavapai 

County); T6N, R2E; T6N, R3E; T6N, R4E; 

T6N, R5E; T6N, R6E; T6N, R7E; T6N, R8E; 

T6N, R9E (except that portion in Gila 

County); T6N, R10E (except that portion in 

Gila County); T6N, R1W (except that 

portion in Yavapai County); T6N, R2W; T6N, 

R3W; T6N, R4W T6N, R5W T7N, R1E (except 

that portion in Yavapai County); T7N, R2E; 

(except that portion in Yavapai County); 

T7N, R3E; T7N, R4E; T7N, R5E; T7N, R6E; 

T7N, R7E; T7N, R8E; T7N, R9E (except that 

portion in Gila County); T7N, R1W (except 

that portion in Yavapai County); T7N, R2W 

(except that portion in Yavapai County); 

T8N, R2E (except that portion in Yavapai 

County); T8N, R3E (except that portion in 

Yavapai County); T8N, R4E (except that 

portion in Yavapai County); T8N, R5E 

(except that portion in Yavapai County); 

T8N, R6E (except that portion in Yavapai 

County); T8N, R7E (except that portion in 

Yavapai County); T8N, R8E (except that 

portion in Yavapai and Gila Counties); 

T8N, R9E (except that portion in Yavapai 

and Gila Counties); T1S, R1E (except that 

portion in Indian Country); T1S, R2E 

(except that portion in Pinal County and 

in Indian Country); T1S, R3E; T1S, R4E; 

T1S, R5E; T1S, R6E; T1S, R7E; T1S, R1W; 

T1S, R2W; T1S, R3W; T1S, R4W; T1S, R5W; 

T1S, R6W; T2S, R1E (except that portion in 

Indian Country); T2S, R5E; T2S, R6E; T2S, 

R7E; T2S, R1W; T2S, R2W; T2S, R3W; T2S, 

R4W; T2S, R5W; T3S, R1E; T3S, R1W; T3S, 

R2W; T3S, R3W; T3S, R4W; T3S, R5W; T4S, 

1E; T4S, R1W; T4S, R2W; T4S, R3W; T4S, 

R4W; T4S, R5W

Pinal County (part)...................... ....... Nonattainment INSERT DATE 30 DAYS Subpart 2/ 
Page 94 of 103

ARIZONA—OZONE [8-Hour Standard]

Designated Area Designationa Category/classification

Date1 Type Date1 Type

Apache Junction: T1N, R8E; T1S, 

R8E (Sections 1 through 12)

AFTER FR PUBLICATION] Marginal

* * * * * * *

a Includes Indian Country located in each county or area, except otherwise noted.

1This date is June 15, 2004, unless otherwise noted.

* * * * *

9. In §81.305, the table entitled “California--Ozone (8-Hour Standard)” is amended by 

revising the entry for the following: 

Amador and Calaveras Cos (Central Mtn), CA

Chico, CA

Kern Co. (Eastern Kern), CA

Mariposa and Tuolumne Cos. (Southern Mtn), CA

Nevada Co. (Western Part), CA

San Diego, CA

Sutter Co. (Sutter Buttes), CA

§81.305 California

* * * * *

CALIFORNIA—OZONE [8-Hour Standard]

Designated Area Designationa Category/classification

Date1 Type Date1 Type

* * * * * * *

Amador and Calaveras Cos., CA:

(Central Mountain Cos.)

Amador County .............

Calaveras County ..........

..........

..........

Nonattainment

Nonattainment

[INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

Subpart 2/ 

Moderate

Subpart 2/ 

Moderate
Page 95 of 103

CALIFORNIA—OZONE [8-Hour Standard]

Designated Area Designationa Category/classification

Date1 Type Date1 Type

Chico, CA:

Butte County....................... .......... Nonattainment

[INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

Subpart 2/ 

Marginal

Kern County (Eastern Kern), CA ..........

Kern County (part)

That portion of Kern County (with 

the exception of that portion in 

Hydrologic Unit Number 18090205—the 

Indian Wells Valley) east and south 

of a line described as follows: 

Beginning at the Kern-Los Angeles 

County boundary and running north 

and east along the northwest 

boundary of the Rancho La Liebre 

Land Grant to the point of 

intersection with the range line 

common to Range 16 West and Range 

17 West, San Bernardino Base and 

Meridian; north along the range 

line to the point of intersection 

with the Rancho El Tejon Land Grant 

boundary; then southeast, 

northeast, and northwest along the 

boundary of the Rancho El Tejon 

Grant to the northwest corner of 

Section 3, Township 11 North, Range 

17 West; then west 1.2 miles; then 

north to the Rancho El Tejon Land 

Grant boundary; then northwest 

along the Rancho El Tejon line to 

the southeast corner of Section 34, 

Township 32 South, Range 30 East, 

Mount Diablo Base and Meridian; 

then north to the northwest corner 

of Section 35, Township 31 South, 

Range 30 East; then northeast along 

.......... Nonattainment [INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

Subpart 2/ 

Moderate
Page 96 of 103

CALIFORNIA—OZONE [8-Hour Standard]

Designated Area Designationa Category/classification

Date1 Type Date1 Type

the boundary of the Rancho El Tejon 

Land Grant to the southwest corner 

of Section 18, Township 31 South, 

Range 31 East; then east to the 

southeast corner of Section 13, 

Township 31 South, Range 31 East; 

then north along the range line 

common to Range 31 East and Range 

32 East, Mount Diablo Base and 

Meridian, to the northwest corner 

of Section 6, Township 29 South, 

Range 32 East; then east to the 

southwest corner of Section 31, 

Township 28 South, Range 32 East; 

then north along the range line 

common to Range 31 East and Range 

32 East to the northwest corner of 

Section 6, Township 28 South, Range 

32 East, then west to the southeast 

corner of Section 36, Township 27 

South, Range 31 East, then north 

along the range line common to 

Range 31 East and Range 32 East to 

the Kern-Tulare County boundary.

* * * * * * *

Mariposa and Tuolumne Cos., CA:

(Southern Mountain Counties)

Mariposa County ............

Tuolumne County ............

..........

..........

Nonattainment

Nonattainment

[INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

Subpart 2/ 

Moderate

Subpart 2/ 

Moderate

* * * * * * *

San Diego, CA ............................

San Diego County (part)

That portion of San Diego 

County that excludes the 

areas listed below: La Posta 

Areas #1 and #2 b, Cuyapaipe 

Area b, Manzanita Area b, 

Campo Areas #1 and #2 b

.......... Nonattainment INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

Subpart 2/ 

Moderate
Page 97 of 103

CALIFORNIA—OZONE [8-Hour Standard]

Designated Area Designationa Category/classification

Date1 Type Date1 Type

* * * * * * *

Sutter County (part), CA:

Sutter County (part) ..............

(Sutter Buttes) That portion 

of the Sutter Buttes 

mountain range at or above 

2,000 feet in elevation.

.......... Nonattainment [INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

Subpart 2/ 

Marginal

* * * * * * *

Nevada County (Western part), CA .....

Nevada County (part)

That portion of Nevada 

County, which lies west of a 

line, described as follows: 

beginning at

the Nevada-Placer County

boundary and running north

along the western boundaries 

of Sections 24, 13, 12, 1, 

Township 17 North, Range 14 

East, Mount Diablo Base and 

Meridian, and Sections 36, 

25, 24, 13, 12, Township 18 

North, Range 14 East to the 

Nevada-Sierra County 

boundary.

.......... Nonattainment INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

Subpart 2/ 

Moderate

* * * * * * *

a Includes Indian Country located in each county or area, except as otherwise noted.

b The boundaries for these designated areas are based on coordinates of latitude and longitude derived from EPA Region 9’s 

GIS database and are illustrated in a map entitled ‘‘Eastern San Diego County Attainment Areas for the 8-Hour Ozone NAAQS,’’ 

dated March 9, 2004, including an attached set of coordinates. The map and attached set of coordinates are available at 

EPA’s Region 9 Air Division office. The designated areas roughly approximate the boundaries of the reservations for these 

tribes, but their inclusion in this table is intended for CAA planning purposes only and is not intended to be a federal 

determination of the exact boundaries of the reservations. Also, the specific listing of these tribes in this table does not 

confer, deny, or withdraw Federal recognition of any of the tribes so listed nor any of the tribes not listed.

1This date is June 15, 2004, unless otherwise noted

* * * * *
Page 98 of 103

10. In §81.306, the table entitled “Colorado-- Ozone (8-Hour Standard)” is amended by 

revising the entry for Denver-Boulder-Greeley-Ft. Collins-Love., CO as follows: 

§81.306 Colorado

* * * * *

COLORADO—OZONE [8-Hour Standard]

Designated Area Designationa Category/classification

Date1 Type Date1 Type

* * * * * * *

Denver-Boulder-Greeley-Ft. Collins-Love., 

CO:

Adams County .....................

Arapahoe County ..................

Boulder County (includes part of 

Rocky Mtn. Nat. Park).............

Broomfield County ................

Denver County ....................

Douglas County ...................

Jefferson County .................

Larimer County (part) (includes 

part of Rocky Mtn. Nat. Park). That 

portion of the county that lies 

south of a line described as 

follows: Beginning at a point on 

Larimer County’s eastern boundary 

and Weld County’s western boundary 

intersected by 40 degrees, 42 

minutes, and 47.1 seconds north 

latitude, proceed west to a point 

defined by the intersection of 40 

degrees, 42 minutes, 47.1 seconds 

north latitude and 105 degrees, 29 

minutes, and 40.0 seconds west 

2

2

2

2

2

2

2

2

Nonattainment

Nonattainment

Nonattainment

Nonattainment

Nonattainment

Nonattainment

Nonattainment

Nonattainment

[INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

Subpart 2/ 

Marginal

Subpart 2/ 

Marginal

Subpart 2/ 

Marginal

Subpart 2/ 

Marginal

Subpart 2/ 

Marginal

Subpart 2/ 

Marginal

Subpart 2/ 

Marginal

Subpart 2/ 

Marginal
Page 99 of 103

COLORADO—OZONE [8-Hour Standard]

Designated Area Designationa Category/classification

Date1 Type Date1 Type

longitude, thence proceed south on 

105 degrees, 29 minutes, 40.0 

seconds west longitude to the 

intersection with 40 degrees, 33 

minutes and 17.4 seconds north 

latitude, thence proceed west on 40 

degrees, 33 minutes, 17.4 seconds 

north latitude until this line 

intersects Larimer County’s western 

boundary and Grand County’s eastern 

boundary.

Weld County (part) ..............

That portion of the county that 

lies south of a line described as 

follows: Beginning at a point on 

Weld County’s eastern boundary and 

Logan County’s western boundary 

intersected by 40 degrees, 42 

minutes, 47.1 seconds north 

latitude, proceed west on 40 

degrees, 42 minutes, 47.1 seconds 

north latitude until this line 

intersects Weld County’s western 

boundary and Larimer County’s 

eastern boundary.

2 Nonattainment [INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

Subpart 2/ 

Marginal

* * * * * * *

a Includes Indian Country located in each county or area, except as otherwise noted.

1This date is June 15, 2004, unless otherwise noted.

2 Early Action Compact Area, effective date deferred until November 20, 2007.

* * * * *

11. In §81.329, the table entitled “Nevada--Ozone (8-Hour Standard)” is amended by 

revising the entry for Las Vegas, NV as follows: 

§81.329 Nevada
Page 100 of 103

* * * * *

NEVADA—OZONE [8-Hour Standard]

Designated Area Designationa Category/classification

Date1 Type Date1 Type

* * * * * * *

Las Vegas, NV:

Clark County.......................

That portion of Clark County that 

lies in hydrographic areas 164A, 

164B, 165, 166, 167, 212, 213, 214, 

216, 217, and 218 but excluding the 

Moapa River Indian Reservation and 

the Fort Mojave Indian Reservation. 

b

2

Nonattainment [INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

Subpart 2/ 

Marginal

* * * * * * *

a Includes Indian Country located in each county or area, except as otherwise noted.

b The use of reservation boundaries for this designation is for purposes of CAA planning only and is not intended to be a 

federal determination of the exact boundaries of the reservations. Nor does the specific listing of the Tribes in this table 

confer, deny or withdraw Federal recognition of any of the Tribes listed or not listed.

1This date is June 15, 2004, unless otherwise noted

2The effective date is September 13, 2004

* * * * *

12. In §81.833, the table entitled “New York--Ozone (8-Hour Standard)” is amended by 

revising the entries for the following:

Albany-Schenectady-Troy, NY

Buffalo-Niagara Falls, NY

Essex County (Whiteface Mtn.), NY

Jamestown, NY

Rochester, NY

§81.333 New York

* * * * *
Page 101 of 103

NEW YORK—OZONE [8-Hour Standard]

Designated Area Designationa Category/classification

Date1 Type Date1 Type

* * * * * * *

Albany-Schenectady-Troy, NY:

Albany County ....................

Greene County ....................

Montgomery County ................

Rensselaer County ................

Saratoga County ..................

Schenectady County ...............

Schoharie County .................

..........

..........

..........

..........

..........

..........

..........

Nonattainment

Nonattainment

Nonattainment

Nonattainment

Nonattainment

Nonattainment

Nonattainment

[INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

Subpart 2/ 

Marginal

Subpart 2/ 

Marginal

Subpart 2/ 

Marginal

Subpart 2/ 

Marginal

Subpart 2/ 

Marginal

Subpart 2/ 

Marginal

Subpart 2/ 

Marginal

Buffalo-Niagara Falls, NY:

Erie County ......................

Niagara County ...................

..........

..........

Nonattainment

Nonattainment

[INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

Subpart 2/ 

Moderate

Subpart 2/ 

Moderate

Essex County (Whiteface Mtn.), NY:

Essex County (part) The portion of 

Whiteface Mountain above 1,900 feet 

in elevation in Essex County.

.......... Nonattainment [INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

Subpart 2/ 

Marginal

* * * * * * *

Jamestown, NY:

Chautauqua County .................

.......... Nonattainment [INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

Subpart 2/ 

Moderate

* * * * * * *

Rochester, NY:

Genesee County ....................

Livingston County .................

Monroe County .....................

Ontario County ....................

Orleans County ....................

Wayne County ......................

..........

..........

..........

..........

..........

..........

Nonattainment

Nonattainment

Nonattainment

Nonattainment

Nonattainment

[INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

Subpart 2/ 

Marginal

Subpart 2/ 

Marginal

Subpart 2/ 

Marginal

Subpart 2/ 

Marginal

Subpart 2/ 

Marginal

Subpart 2/ 

Marginal
Page 102 of 103

NEW YORK—OZONE [8-Hour Standard]

Designated Area Designationa Category/classification

Date1 Type Date1 Type

Nonattainment

* * * * * * *

a Includes Indian Country located in each county or area, except as otherwise noted.

1This date is June 15, 2004, unless otherwise noted.

2 The effective date is September 13, 2004

* * * * *

13. In §81.339 the table entitled “Pennsylvania--Ozone (8-Hour Standard)” is amended by 

revising the entries for Pittsburgh-Beaver Valley, PA as follows:

§81.339 Pennsylvania

* * * * *

PENNSYLVANIA—OZONE [8-Hour Standard]

Designated Area Designationa Category/classification

Date1 Type Date1 Type

* * * * * * *

Pittsburgh-Beaver Valley, PA:

Allegheny County .................

Armstrong County .................

Beaver County ....................

Butler County ....................

Fayette County ...................

Washington County ................

Westmoreland County ..............

..........

..........

..........

..........

..........

..........

..........

Nonattainment

Nonattainment

Nonattainment

Nonattainment

Nonattainment

Nonattainment

Nonattainment

[INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

[INSERT DATE 30 DAYS 

AFTER FR PUBLICATION]

Subpart 2/ 

Moderate

Subpart 2/ 

Moderate

Subpart 2/ 

Moderate

Subpart 2/ 

Moderate

Subpart 2/ 

Moderate

Subpart 2/ 

Moderate

Subpart 2/ 

Moderate

* * * * * * *
Page 103 of 103

PENNSYLVANIA—OZONE [8-Hour Standard]

Designated Area Designationa Category/classification

Date1 Type Date1 Type

a Includes Indian Country located in each county or area, except otherwise noted.

1This date is June 15, 2004, unless otherwise noted

2 The effective date is September 13, 2004

* * * * *