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Federal Register/Vol. 78, No. 109/Thursday, June 6, 2013/Proposed Rules

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Parts 50, 51, 70 and 71

[EPA-HQ-OAR-2010-0885, FRL-9810-3]

RIN 2060-AR34

Implementation of the 2008 National

Ambient Air Quality Standards for

Ozone: State Implementation Plan

Requirements

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: The EPA is proposing a rule

for implementing the 2008 ozone

national ambient air quality standards

(NAAQS) (the "2008 ozone NAAQS")

that were promulgated on March 12,

2008. This proposed rule addresses a

range of state implementation plan

requirements for the 2008 ozone

NAAQS, including requirements

pertaining to attainment

demonstrations, reasonable further

progress (RFP), reasonably available

control technology (RACT), reasonably

available control measures (RACM),

new source review (NSR) requirements

in nonattainment areas, emission

inventories, and the timing of state

implementation plan (SIP) submissions

and of compliance with emission

control measures in the SIP. Other

issues also addressed in this proposed

rule are the revocation of the 1997

ozone NAAQS and anti-backsliding

requirements that would apply when

the 1997 ozone NAAQS is revoked.

DATES: Comments. Comments must be

received on or before August 5, 2013.

Public Hearings. The EPA plans to hold

one public hearing concerning the

proposed rule in Washington, DC. The

date, time and location will be

announced separately. Please refer to

SUPPLEMENTARY INFORMATION for

additional information on the comment

period and the public hearings.

Information Collection Request. Under

the Paperwork Reduction Act (PRA),

comments on the information collection

provisions must be received by the

Office of Management and Budget

(OMB) on or before July 8, 2013.

ADDRESSES: Submit your comments,

identified by Docket ID No. EPA-HQOAR-2010-0885, by one of the

following methods:

* www.regulations.gov: Follow the

on-line instructions for submitting

comments.

* Email: a-and-r-docket@epa.gov.

* Mail: Air and Radiation Docket and

Information Center, Attention Docket ID

No. EPA-HQ-OAR-2010-0885,

Environmental Protection Agency, 1301

Constitution Ave. NW., Washington, DC

20460. Mail Code: 2822T. Please

include two copies if possible. In

addition, please mail a copy of your

comments on the information collection

provisions to the Office of Information

and Regulatory Affairs, Office of

Management and Budget (OMB), Attn:

Desk Officer for EPA, 725 17th St. NW.,

Washington, DC 20503.

* Hand Delivery: Air and Radiation

Docket and Information Center,

Attention Docket ID No. EPA-HQOAR-2010-0885, Environmental

Protection Agency in the EPA

Headquarters Library, Room Number

3334 in the EPA West Building, located

at 1301 Constitution Ave. NW.,

Washington, DC. The EPA/DC Public

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

4:30 p.m. Eastern Standard Time (EST),

Monday through Friday, Air and

Radiation Docket and Information

Center.

Instructions: Direct your comments to

Docket ID No. EPA-HQ-OAR-2010-

0885. The EPA's policy is that all

comments received will be included in

the public docket without change and

may be made available on-line at

www.regulations.gov, including any

personal information provided, unless

the comment includes information

claimed to be confidential business

information (CBI) or other information

whose disclosure is restricted by statute.

Do not submit information that you

consider to be CBI or otherwise

protected through www.regulations.gov

or email. The www.regulations.gov Web

site is an "anonymous access" system,

which means the EPA will not know

your identity or contact information

unless you provide it in the body of

your comment. If you send an email

comment directly to the EPA without

going through www.regulations.gov,

your email address will be

automatically captured and included as

part of the comment that is placed in the

public docket and made available on the

Internet. If you submit an electronic

comment, the EPA recommends that

you include your name and other

contact information in the body of your

comment and with any CD you submit.

If the EPA cannot read your comment

due to technical difficulties and cannot

contact you for clarification, the EPA

may not be able to consider your

comment. Electronic files should avoid

the use of special characters and any

form of encryption and be free of any

defects or viruses. For additional

information about the EPA's public

docket, visit the EPA Docket Center

homepage at http://www.epa.gov!

epahome/dockets.htm. For additional

instructions on submitting comments,

go to the SUPPLEMENTARY INFORMATION

section of this document.

Docket: All documents in the docket

are listed in www.regulations.gov.

Although listed in the index, some

information is not publicly available,

i.e., CBI or other information whose

disclosure is restricted by statute.

Certain other material, such as

copyrighted material, is not placed on

the Internet and will be publicly

available only in hard copy form.

Publicly available docket materials are

available either electronically in

www.regulations.gov or in hard copy at

the Air and Radiation Docket and

Information Center in the 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 on this

rulemaking, contact Dr. Karl Pepple,

Office of Air Quality Planning and

Standards, U.S. Environmental

Protection Agency, by phone at (919)

541-2683, or by email at

pepple.karl@epa.gov; or Mr. Butch

Stackhouse, Office of Air Quality

Planning and Standards, U.S.

Environmental Protection Agency,

phone number (919) 541-5208, or by

email at stackhouse.butch@epa.gov. For

information on the public hearings,

contact Ms. Pamela S. Long at (919)

541-0641 or by email at

long.pam@epa.gov.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does this action apply to me?

Entities potentially affected directly

by this proposal include state, local and

tribal governments. Entities potentially

affected indirectly by this proposal

include owners and operators of sources

of emissions (volatile organic

compounds (VOCs) and nitrogen oxides

(NOx)) that contribute to ground-level

ozone formation.

B. What should I consider as I prepare

my comments for the EPA?

1. Submitting CBI. Do not submit CBI

information to the EPA through

www.regulations.gov or email. Clearly

mark the part or all of the information

that you claim to be CBI. For CBI

information on a disk or CD ROM that

you mail to the EPA, mark the outside

of the disk or CD ROM as CBI and then

34178
Federal Register/Vol. 78, No. 109/Thursday, June 6, 2013/Proposed Rules

identify electronically within the disk or

CD ROM the specific information that is

claimed as CBI. In addition to one

complete version of the comment that

includes information claimed as CBI, a

copy of the comment that does not

contain the information claimed to be

CBI must be submitted for inclusion in

the public docket. Information marked

CBI will not be disclosed except in

accordance with procedures set forth in

40 CFR part 2.

2. Tips for Preparing Your Comments.

When submitting comments, remember

to:

* Identify the rulemaking by docket

number and other identifying

information (subject heading, Federal

Register date and page number).

: Follow directions-The agency may

ask you to respond to specific questions

or organize comments by referencing a

Code of Federal Regulations (CFR) part

or section number.

* Explain why you agree or disagree;

suggest alternatives and substitute

language for your requested changes.

* Describe any assumptions and

provide any technical information and/

or data that you used.

* If you estimate potential costs or

burdens, explain how you arrived at

your estimate in sufficient detail to

allow for it to be reproduced.

* Provide specific examples to

illustrate your concerns, and suggest

alternatives.

* Explain your views as clearly as

possible, avoiding the use of profanity

or personal threats.

* Make sure to submit your

comments by the comment period

deadline identified.

C. 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

will be posted at http://www.epa.govl

air/ozonepollution/actions.html#impl.

D. What information should I know

about possible public hearings?

The EPA intends to hold one public

hearing on this proposal. Further details

concerning the public hearing for this

proposed rule will be published in a

separate Federal Register notice. For

updates and additional information on

the public hearings, please check the

EPA's Web site for this rulemaking at

http://www.epa.gov/air/ozonepollutionactions.html#impl.

E. How is this notice organized?

The information presented in this

notice is organized as follows:

I. General Information

A. Does this action apply to me?

B. What should I consider as I prepare my

comments for the EPA?

C. Where can I get a copy of this document

and other related information?

D. What information should I know about

possible public hearings?

E. How is this notice organized?

II. Background for Proposal

A. The 2008 Ozone NAAQS

B. The Challenge of Ozone Implementation

C. History of Implementation Rules for the

1997 Ozone NAAQS

D. Section 110 SIP Requirements

E. Part D Nonattainment Area SIP

Requirements

III. What are the state implementation plan

requirements for the 2008 ozone

NAAQS?

A. What is the deadline for submitting

nonattainment area SIP elements due

under Clean Air Act (CAA or Act)

section 182 for the 2008 ozone NAAQS?

B. What are the requirements for modeling

and attainment demonstration SIPs?

C. What are the RFP requirements for the

2008 ozone NAAQS?

D. How do RACT and RACM requirements

apply for 2008 ozone NAAQS

nonattainment areas?

E. Does the 2008 ozone NAAQS result in

any new inspection and maintenance

(I/M) programs?

F. How does transportation conformity

apply to the 2008 ozone NAAQS?

G. What requirements for general

conformity apply to the 2008 ozone

NAAQS?

H. What are the requirements for

contingency measures in the event of

failure to meet a milestone or to attain?

I. How do the NSR requirements apply for

the 2008 ozone NAAQS?

J. What are the emission inventory and

emission statement requirements?

K. What are the ambient monitoring

requirements?

L. How can states qualify for a 1-year

attainment deadline extension?

M. How will the EPA address transport of

ozone and its precursors for rural

nonattainment areas, multi-state

nonattainment areas and international

transport?

N. How will the section 182(f) NOx

provisions be handled?

0. Emissions Reduction Benefits of Energy

Efficiency/Renewable Energy Policies

and Programs, Land Use Planning and

Travel Efficiency

P. Efforts To Encourage a Multi-Pollutant

Approach When Developing 2008 Ozone

SIPs

Q. How does this proposed rule apply to

tribes?

R. What are the requirements for the Ozone

Transport Region (OTR)?

S. Are there any additional requirements

related to enforcement and compliance?

T. What are the requirements for

addressing emergency episodes?

U. How does the "Clean Data Policy" apply

to the 2008 ozone NAAQS?

V. What assistance programs is the EPA

considering for implementation of the

2008 ozone NAAQS?

W. What is the deadline for states to

submit SIP revisions to address the CAA

section 185 penalty fee provision for

Severe and Extreme areas?

IV. What is the EPA proposing to address

anti-backsliding issues related to

transition from the 1997 ozone NAAQS

to the 2008 ozone NAAQS?

A. General Background

B. Background on Transition From the 1-

Hour to the 1997 Ozone NAAQS

C. Background on Nonattainment NSR

D. Background on Section 185 Fees

E. Background on the Contingency

Measures Requirement

F. What is the EPA proposing regarding

anti-backsliding requirements for the

1 -hour and 1997 ozone NAAQS?

G. Timing of 1997 Ozone NAAQS

Revocation and Related Anti-Backsliding

Requirements

H. What are the applicable requirements

for anti-backsliding purposes during the

transition to the 2008 ozone NAAQS?

I. Application of Transition Requirements

to Nonattainment and Attainment Areas

J. Satisfaction of Anti-Backsliding

Requirements for an Area

K. How will the EPA's determination of

attainment ("Clean Data") regulation

apply for purposes of the antibacksliding requirements?

L. What is the relationship between

implementation of the 2008 ozone

NAAQS and the CAA title V permits

program?

V. 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

Concerning Regulations 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. Determination Under Section 307(d)

Appendix A to Preamble-Glossary of Terms

and Acronyms

Appendix B to Preamble-Relevant

Rulemakings Concerning

Implementation of the 1997 Ozone

NAAQS

Appendix C to Preamble-Methods to

Account for Non-Creditable Reductions

When Calculating RFP Targets for the

2008 Ozone NAAQS

Appendix D to Preamble-List of Areas

Nonattainment for the 2008 Ozone

NAAQS in Addition to a Prior Ozone

NAAQS

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Federal Register/Vol. 78, No. 109/Thursday, June 6, 2013/Proposed Rules

Statutory Authority

List of Subjects

II. Background for Proposal

A. The 2008 Ozone NAAQS

On March 12, 2008,1 the EPA revised

the primary NAAQS for ozone, designed

to protect public health, to a level of

0.075 parts per million (ppm) (annual

fourth-highest daily maximum 8-hour

concentration, averaged over 3 years).2

The secondary NAAQS for ozone,

designed to protect public welfare, was

simultaneously set at the same level

(and with the same averaging time) as

the primary NAAQS. Since the 2008

primary and secondary NAAQS for

ozone are identical, for convenience, we

refer to both as "the 2008 ozone

NAAQS" or "the 2008 ozone standard."

On September 16, 2009, the EPA

announced 3 that it would initiate a

rulemaking to reconsider the 2008

ozone NAAQS for various reasons,

including the fact the 0.075 ppm level

fell outside of the range for the primary

standard recommended by the Clean Air

Scientific Advisory Committee. Pending

the outcome of that reconsideration, the

EPA suspended further work on

designating areas, and on classifying

and developing implementation

guidance for areas that would be

designated nonattainment for the 2008

NAAQS. In September 2011, the OMB

returned for further consideration the

EPA's draft rulemaking to reconsider the

2008 ozone NAAQS. 4 The current

primary and secondary NAAQS for

ozone thus remains at 0.075 ppm, as

established in 2008. The 2008 ozone

NAAQS retains the same general form

and averaging time as the 0.08 ppm

NAAQS set in 1997 but is set at a more

stringent level.

B. The Challenge of Ozone

Implementation

The EPA and the states, and some

local and tribal air agencies, are now

proceeding with activities to implement

the 2008 ozone NAAQS. In rules

finalized on April 30, 2012, and May 31,

2012, the EPA formally designated all

areas of the country as attainment/

unclassifiable, nonattainment or

unclassifiable for the 2008 NAAQS. 5 On

April 30, 2012, the EPA also finalized a

173 FR 16436.

2 For a detailed explanation of the calculation of

the 3-year 8-hour average, see 40 CFR part 50,

Appendix I. 3

http://yosemite.epa.govlopaladmpress.nsflo

85F9OB7711ACBOC88525763300617DOD.

4 Memorandum from Cass R. Sunstein to the

former EPA Administrator Lisa Jackson, September

2, 2011.

5 The EPA designated 46 areas as nonattainment

for the 2008 ozone NAAQS.

rule that established the approach for

classifying ozone nonattainment areas

for the 2008 ozone NAAQS based on

their air quality concentrations, as well

as the deadline for areas in each

classification to achieve the 2008 ozone

NAAQS. 6 That rule, referred to as the

"Classifications Rule," also addressed

the revocation of the 1997 ozone

NAAQS for purposes related to

transportation conformity, and

reclassification for certain areas in

California. Today's proposed rule,

referred to as the "SIP Requirements

Rule," addresses a range of additional

issues important for implementing the

2008 ozone NAAQS.

In this action, the EPA proposes a rule

to address the steps states will take to

implement the 2008 ozone NAAQS and

the timing of those steps. In accordance

with Executive Order (EO) 13563 titled,

"Improving Regulation and Regulatory

Review," signed by President Barack

Obama on January 18, 2011, which

directs governmental agencies to offer

and support flexible, common sense

approaches, this proposed SIP

Requirements Rule is intended to

provide the health and environmental

protections required under the CAA

while maximizing flexibility and

minimizing burden for states, who are

the primary implementing agencies.

Achieving the health benefits required

by the CAA will require the combined

efforts of federal, state, local, and in

some cases tribal governments, each

accomplishing the tasks for which it is

best suited. For the EPA, that means

adopting national standards where it

makes sense to do so, such as standards

to reduce emissions from sectors that

are of national concern, such as mobile

sources and many types of industries. It

also means providing as much

assistance and flexibility as possible to

the states as they work to develop and

implement their attainment plans. In

addition, we are mindful that the

requirement to implement the 2008

ozone NAAQS comes at a time when

many states are facing substantial

resource challenges. The EPA is

committed to working in partnership

with states and other stakeholders to

share the burden of implementing the

2008 ozone NAAQS by promulgating a

number of national regulations that will

provide significant reductions in ozone

precursors.

In this preamble, we lay out proposed

expectations and requirements for

implementation of the 2008 ozone

NAAQS. As we have considered the

elements of implementation of the

NAAQS required under the CAA, it has

6 77 FR 30160, May 21, 2012.

been our goal to propose approaches

that provide flexibility and

opportunities for efficiency, without

jeopardizing expeditious attainment of

the public health and welfare goals, and

to identify the ways in which the EPA

will provide assistance to the states. We

invite comment on any and all aspects

of this proposed rule, and encourage

suggestions that will increase

implementation efficiency, allow the

most effective pollution control

programs to be implemented and

identify additional ways in which the

EPA can assist the states to reach

attainment within the legal framework

of the CAA.

The CAA was amended in 1990 to

add specific provisions that apply to

ozone nonattainment areas. These

include timelines for both planning and

implementation, and numerous

mandates for specific programs to

reduce emissions. Since that time, the

EPA, states and others have gained a

great deal of scientific knowledge and

increased understanding of issues

related to ozone formation and control.

Specifically, we know more about how

NOx and VOC interact to form ozone

and we have better models for

evaluating control strategies. This better

understanding allows for more strategic

approaches in which public health can

serve as the key factor in prioritizing

control measures. We also have a better

appreciation for the role of interstate

transport of ozone, international

transport of pollutants and background

levels of ozone. In the past 20 years,

technology has evolved substantially,

particularly with respect to mobile

sources, with the result that some of the

very specific programs mandated for

ozone nonattainment areas, such as

Stage II Vapor Recovery and vehicle

I/M programs, may not provide the

benefits they did originally because the

problems that they were designed to

address have been largely solved in

other ways or technology advances

make them no longer relevant. New and

creative emission reduction approaches,

such as energy efficiency and land use

programs, are now being explored that

have great promise for improved air

quality and other benefits, but may not

fit easily into the timelines of the CAA

or the EPA's traditional expectations for

SIPs. Other innovative approaches, such

as I/M programs built around next

generation testing technologies like

onboard diagnostics (OBD), are available

now and the EPA will work with states

interested in adopting such programs to

ensure their effective implementation.

The EPA has explored a number of

approaches to address the issues

discussed above and has identified

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Federal Register/Vol. 78, No. 109/Thursday, June 6, 2013/Proposed Rules

several ways to achieve emission

reductions through national/regional

standards and provide states flexibility

and assistance in meeting the CAA

requirements to increase

implementation efficiency while still

ensuring the public health and welfare

protection achieved by meeting the

ozone NAAQS. In subsequent sections

of this preamble, we lay out our

proposed approaches, but here are a few

examples:

1. Federal control measures: States

can rely on emission reductions from

federal control measures to help areas

attain the 2008 ozone NAAQS or to

meet other SIP-related objectives, as

long as the federal measures achieve

their reductions prior to the relevant

SIP-related deadlines. Promulgated and

planned federal rules include, but are

not limited to: (1) Tier 3 emissions

standards for on-road motor vehicles; 7

(2) Maximum Achievable Control

Technology (MACT) rules that address

hazardous air pollutants (HAPs) that are

also VOCs, such as rules associated with

oil and gas development, internal

combustion engines, incinerators,

boilers and cement kilns; and (3)

consumer product rules. The emission

reductions achieved by these federal

rules will reduce the amount of

emission reductions individual states

will need to achieve through state and

local regulations in order for areas to

attain the 2008 ozone NAAQS.

2. Stage II Vapor Recovery: In a

separate Federal Register notice (77 FR

28772; May 16, 2012), the EPA

determined that onboard refueling vapor

recovery was in widespread use

throughout the country and, as a result,

the EPA exercised its authority under

the CAA to waive the mandatory section

182(b)(3) stage II vapor recovery

requirement. This waiver allows states,

if they determine it appropriate, to

discontinue the requirement for gasoline

dispensing facilities (GDFs) in Serious

and above nonattainment areas to install

and operate Stage II vapor recovery

systems, and the requirement for states

to inspect such systems, resulting in

cost savings for both the states and the

owners and operators of GDFs.

3. Attainment demonstrations: The

EPA is investigating opportunities for

easing the burden on states to conduct

7 In addition to the planned Tier 3 emission

standards, other new and existing mobile source

regulations addressing emissions from new heavyduty vehicles, non-road equipment and engines,

locomotives, marine engines and ocean-going

vessels will continue to provide additional

emissions reductions as the current fleets are

replaced with vehicles, equipment and engines that

are certified to more stringent emissions standards

or engines are re-built to comply with any

applicable requirements.

air quality modeling to demonstrate

attainment, particularly for

nonattainment areas initially classified

as Moderate or reclassified to Moderate

for the 2008 ozone NAAQS. The EPA is

exploring options such as making

available various emissions,

meteorological and boundary conditions

inputs, and national scale modeling

results that were generated in support of

EPA rules, that states could reference as

part of their attainment demonstrations.

4. Innovative and creative

approaches: EO 13563 specifically

requires agencies to "seek to identify, as

appropriate, means to achieve

regulatory goals that are designed to

promote innovation." The EPA is

encouraging innovative and creative

approaches to reducing emissions such

as improvements in energy efficiency

and land use programs, especially since

many of the more traditional control

measures have already been

implemented in many areas. The EPA is

committed to working in partnership

with states to facilitate the incorporation

of such approaches into SIPs. Energy

efficiency, renewable energy programs,

land use planning and travel efficiency

are discussed in more detail in section

111.0 of this preamble.

5. Updated information: The EPA will

continue to assist states'

implementation efforts by offering a

variety of new compilations of

information that will be useful to all

states. In 2012, the EPA issued an

updated "Menu of Control Measures"

document which includes information

on NOx and VOC control measures,

including efficiencies and costs, for a

range of source categories. This menu of

measures is located at http://

www.epa.gov/airquality/ozonepollution/

SIPToolkit/. In addition, the EPA

developed a Web site with information

on existing local ozone reduction

measures (e.g., ozone action days,

ridesharing programs) and a forum for

the exchange of ideas about potential

state and local measures. This control

measure Web site is located at http://

www.epa.gov/airquality/ozonestrategy/.

General information about SIP

implementation requirements is located

at http://www.epa.gov/airl

ozonepollution/implement.html.

Specific information regarding SIP

submittal and approval status is located

at http://www.epa.gov/airqualityl

urbanair/sipstatus/.

6. Emissions offset relief in Economic

Development Zones: The EPA will work

with states to identify areas within

nonattainment areas as zones to which

economic development should be

targeted. In these zones, the CAA allows

new or modified major sources seeking

permits to meet emissions growth offset

requirements by drawing from a pool of

growth allowances established by the

state. This will help ensure clean air

requirements can be met in a way that

is consistent with economic

development in low-employment areas

and other areas in need of job growth.

7. Rural transport areas: Section

182(h) of the CAA provides a "rural

transport" classification for ozone

nonattainment areas that are rural in

nature and can demonstrate that sources

in the area do not make a significant

contribution to ozone concentrations

measured in the area or in other areas.

These areas are subject to Marginal area

requirements, regardless of the area's

classification under section 181(a), in

recognition of that fact.

8. RFP requirements: The EPA is

proposing to provide nonattainment

areas classified as Moderate and above

the flexibility in certain situations to

substitute NOx reductions for VOC

reductions in their 15 percent RFP

plans. We believe that, given the

improved scientific understanding of

the formation of ozone, it makes sense,

wherever possible, to allow states to

credit toward the RFP requirement those

reductions that an area most needs to

reach attainment.

9. Combining submittals: The EPA is

proposing, as an option, to allow states

to combine SIP submittals where they

believe it will reduce administrative

burdens, and to adjust timeframes to

provide more time for states to conduct

some of the necessary rulemaking or

program development activities without

compromising expeditious progress

towards and attainment of the

standards.

10. Encouraging early reductions:

Under the "Ozone Advance" program,

the EPA is working with states, tribes

and local governments to ensure they

are aware of the advantages of early

action and to provide assistance in

taking steps to achieve emission

reductions in ozone attainment areas

and participating Marginal

nonattainment areas. Early reductions

may help these areas maintain the 2008

ozone NAAQS. The EPA believes there

are significant advantages for states,

tribes and local governments to take

steps to reduce emissions as early as

possible. Early reductions can help to

maintain or improve existing air quality,

which in turn can help to ensure

continued health protection and keep an

area in attainment or, if eventually

designated as nonattainment under a

future ozone NAAQS, help bring the

area back into attainment. In addition,

efforts to improve local air quality can

establish working relationships between

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Federal Register/Vol. 78, No. 109/Thursday, June 6, 2013/Proposed Rules

key stakeholders that can help achieve

emission reductions quickly and in

ways that make the most sense to the

particular community.

The EPA will work closely with states

and tribes to provide assistance and

flexibility in implementing the 2008

ozone NAAQS consistent with the

implementation approaches that are

adopted in the final implementation

rule. The EPA solicits comment on other

suggestions commenters may have for

this implementation rule that are

consistent with the CAA and provide

flexibility to the states for common

sense implementation that will provide

for timely progress towards attainment

of the 2008 ozone standard.

C. History of Implementation Rules for

the 1997 Ozone NAAQS

In 2004 and 2005, the EPA

promulgated regulations codified in 40

CFR part 51, subpart X, addressing

implementation of the 1997 8-hour

ozone NAAQS, revocation of the 1979

1-hour ozone NAAQS, and the antibacksliding requirements that continued

to apply for the revoked 1979 standard.

See Federal Register publications at 69

FR 23951, April 30, 2004 (the "Phase 1"

Rule) and 70 FR 71612, November 29,

2005 (the "Phase 2" Rule). The EPA

received several petitions for

reconsideration and several parties

submitted petitions for judicial review

of those rules. The EPA granted

reconsideration of several issues and

took final action on those issues.

Challenges to those reconsideration

actions were consolidated with the

challenges to the Phase 1 and Phase 2

Rules. The court upheld portions of the

Phase 1 Rule but vacated limited

portions concerning the classification of

areas under subpart 1 of part D of title

I of the CAA and the failure to include

three anti-backsliding requirements

associated with the revoked 1-hour

ozone NAAQS. South Coast Air Quality

Management District v. EPA, 472 F.3d

882 (D.C. Cir. 2006) (South Coast).

Although the court upheld only limited

challenges, it seemed to vacate the

Phase 1 Rule in its entirety. The EPA

requested rehearing and clarification of

the ruling, and on June 8, 2007, the

court clarified that it vacated the rule

only to the extent that it had upheld

petitioners' challenges. South Coast Air

Quality Management District, et al., v.

EPA, 489 F.3d 1245 (D.C. Cir. 2007).

Thus, only the following provisions of

the Phase 1 Rule were vacated: The

provisions that classified some 1997

8-hour ozone nonattainment areas under

subpart 1, part D, title I of the CAA; and

the provisions that did not retain three

anti-backsliding obligations associated

with the revoked 1-hour ozone NAAQS:

nonattainment NSR, section 185 penalty

fees and contingency measures for

failure to attain or to make reasonable

progress toward attainment. 8 The EPA

finalized action to re-address the

vacated subpart 1 classifications and

contingency measures provisions of the

Phase 1 Rule. 77 FR 28424, May 14,

2012. The EPA proposed action to readdress the vacated nonattainment NSR

provision. 75 FR 51960 (August 24,

2010). We are re-addressing the antibacksliding requirements for the section

185 fee program for the revoked 1-hour

ozone NAAQS and re-proposing further

action on the NSR anti-backsliding

issues as part of this proposal.

In the litigation on the Phase 2 Rule,

the EPA requested and the court granted

a remand of the provision that allowed

emission reductions from outside a

nonattainment area to be credited

toward the RFP requirement for that

area, so that the EPA could reconsider

that provision in light of the EPA's

different treatment of such reductions

under the fine particle (PM2.

5)

implementation rule (72 FR 20586,

April 25, 2007). The EPA then issued a

revised rule requiring that states include

in their baseline all emissions within

any area outside of the nonattainment

area from which reductions are being

credited for rate of progress (ROP)

purposes (74 FR 40074, August 11,

2009). On May 13, 2010, the EPA

granted a petition for reconsideration of

this provision in light of the NOx SIP

Call/RACT court decision described

below. We proposed a rule to address

this reconsideration as it relates to the

1997 ozone NAAQS (75 FR 80420,

December 22, 2010), and we discuss this

issue in more detail as it relates to the

2008 ozone NAAQS in section III.C.4 of

this preamble.

On July 10, 2009, the court issued its

ruling on the remaining challenged

provisions pertaining to the Phase 2

Rule. NRDCv. EPA, 571 F.3d 1245 (D.C.

Cir. 2009). The court upheld the Phase

2 Rule in large part, finding most of the

challenged provisions to be reasonable

interpretations consistent with the

statutory mandates in the CAA. The

court, however, granted the petitions for

review on limited issues. It remanded

the EPA's determination that

compliance with the NOx SIP Call

regional cap-and-trade program would

satisfy the area-specific RACT

requirement. It also remanded the

revisions made to the requirements for

8 The court's June 8, 2007, clarification also

confirmed that the December 22, 2006, decision did

not establish a requirement that areas continue to

demonstrate conformity for the 1-hour ozone

NAAQS for anti-backsliding purposes.

NSR offsets in certain areas and vacated

the extension of an NSR waiver

provision beyond the previous 18-

month time limit. The effect of the

vacatur of the 18-month time limit is

discussed in section 111.1 of this

preamble.

A listing of the relevant rulemakings

concerning implementation of the 1997

ozone NAAQS appears in Appendix B

of this preamble.

D. Section 110 SIP Requirements

CAA section 110(a) imposes an

obligation upon states to make a SIP

submission with respect to the 2008

8-hour ozone NAAQS. CAA section

110(a)(1) requires states to submit SIPs

that provide for the implementation,

maintenance and enforcement of a new

or revised NAAQS within 3 years

following the promulgation of the new

or revised NAAQS, or within such

shorter period as the EPA may

prescribe. 9 Section 110(a)(2) lists

specific requirements that states must

meet in these SIP submissions, as

applicable. The EPA refers to this type

of SIP submission as the

"infrastructure" SIP. The requirements

for infrastructure SIPs include basic SIP

elements such as requirements for

monitoring, basic program requirements

and legal authority that are designed to

assure attainment and maintenance of

the NAAQS. The contents of that

submission may vary depending upon

the facts and circumstances. In

particular, the content of such a SIP

submission may vary depending upon

what provisions the state's existing SIP

already contains. Two elements

identified in section 110(a)(2) are not

governed by the 3-year submission

deadline of section 110(a)(1). This

includes SIP submissions incorporating

necessary local nonattainment area

requirements, which are due pursuant

to the schedule in section 182.10 The

9 The EPA did not prescribe a shorter period for

the 2008 8-hour ozone NAAQS; thus, the SIP

submission was due March 12, 2011. 10 Nonattainment area plans required by part D

title I of the CAA for the 2008 8-hour ozone NAAQS

are due by various dates as established throughout

subpart 2 of part D, i.e., reasonably available control

measures are due in 2 years under 182(b)(2),

reasonable further progress plans and attainment

plans for Moderate areas are due in 3 years under

182(b)(1), and attainment demonstrations for

Serious and above areas are due in 4 years under

182(c)(2). The EPA has in the past interpreted these

dates to run from the effective dates of the

nonattainment designations, see 68 FR 32802,

32816-817 (June 2, 2003) ("subpart 2 SIP submittals

will be due as a general matter by the same period

of time after designation and classification under

the 8-hour standard as provided in subpart 2 for

areas designated and classified at the time of

enactment of the 1990 CAA.") The designations for

the 2008 ozone standard were effective on July 20,

2012. See 77 FR 30088 (May 21, 2012) and 77 FR

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two section 110 SIP elements not

governed by the 3-year submission

deadline are: (i) Submissions required

by section 110(a)(2)(C) to the extent that

subsection refers to a nonattainment

area new source review permit program

for major sources as required in part D

of title I of the CAA; and (ii)

submissions required by section

110(a)(2)(I) which pertains to the

nonattainment planning requirements of

part D of title I of the CAA. The EPA

also notes that the D.C. Circuit's recent

opinion in EME Homer City Generation

v. EPA, 696 F.3d 7, 31 (D.C. Cir. 2012)

concluded that a SIP cannot be deemed

to lack a required submission or deemed

deficient for failure to meet the

110(a)(2)(D)(i)(I) obligation until after

the EPA quantifies that obligation.

In the case of the 2008 8-hour ozone

NAAQS, the period during which the

EPA was making efforts to reconsider

the 2008 NAAQS with the expectation

of revising it in the near term extended

about 6 months beyond March 12, 2011,

the normal deadline for submission of

infrastructure SIPs. The EPA therefore

did not prepare and issue timely

guidance for the states to assist them in

preparing their submissions. Also, states

were given the impression that if the

NAAQS were revised as a result of the

reconsideration, the 3-year deadline

would reset. However, despite the

reconsideration process, March 12,

2011, remained the legally applicable

deadline for infrastructure SIPs for the

2008 8-hour ozone NAAQS. The EPA

recently responded to a court order

requiring the EPA to make findings of

failure to submit for certain

infrastructure SIPs that had not been

found complete by March 12, 2011.11

The EPA recognizes that many states

are affected by transported ozone and

ozone precursors from upwind states,

and that transported pollution may

contribute significantly to air pollution

that exceeds the NAAQS in those states.

The CAA establishes states'

responsibilities to address interstate

transport through two provisions:

section 110(a)(2)(D) (specifying certain

of the requirements for the

"infrastructure" SIPs) and section 126

(requiring notification to downwind

states of planned new or modified

sources and providing a petition process

through which downwind jurisdictions

can seek to have specific sources of

transported pollution addressed). This

proposed implementation rule, which

deals with the required SIP elements for

34221 (June 11, 2012). In this notice, the EPA is

proposing two options for SIP submittal dates for

the 2008 ozone NAAQS. See section III.A.

11 See 78 FR 2882, January 15, 2013.

areas designated as nonattainment for

the 2008 ozone NAAQS, does not

address states' obligations under the

CAA to reduce transported pollution.

Although, as noted elsewhere in this

notice, the EPA intends to issue a

guidance memorandum on the required

elements of the section 110

infrastructure SIP submittal for the 2008

ozone NAAQS, that memorandum also

would not contain guidance on how to

meet the requirements of section

110(a)(2)(D)(i)(I), which deals with air

pollutant emissions within a state that

significantly contribute to

nonattainment or interfere with

maintenance of the NAAQS in a

downwind state.

E. Part D Nonattainment Area SIP

Requirements

In addition to the obligation to submit

required section 110 infrastructure SIPs

within 3 years of promulgation of a new

or revised NAAQS, states with

designated nonattainment areas also

have the obligation to submit SIPs

designed to bring those areas into

attainment. SIP requirements applicable

to nonattainment areas are found in part

D of title I of the CAA. Subpart 1 of part

D discusses general requirements for

nonattainment areas, including the

requirement that states adopt and

submit for the EPA's approval detailed

SIPs that bring the area into attainment.

Subpart 2 of part D contains

additional provisions specifically

applicable to ozone nonattainment

areas. Subpart 2 includes CAA sections

181 through 185B. Section 181 of

subpart 2 creates a framework for

classifying ozone nonattainment areas

into five classification categories based

on the severity of their ozone air quality

problems.

Section 181(a) includes attainment

deadlines for each classification

category in relation to the time the area

is designated nonattainment: Marginal

areas are required to attain within 3

years of designation; Moderate areaswithin 6 years; Serious areas-within 9

years; Severe-15 areas-within 15 years;

Severe- 7 areas-within 17 years; and

Extreme areas-within 20 years. 12

Section 182 of subpart 2 outlines SIP

requirements applicable to ozone

nonattainment areas in each

classification category. In general, under

the framework established by subpart 2,

areas classified in higher nonattainment

categories are provided with more time

to attain the ozone NAAQS but are also

12 Attainment deadlines for the 2008 ozone

NAAQS were established in the Classifications

Rule, 77 FR 30160, May 21, 2012.

subject to more extensive planning and

control obligations.

Where the Classifications Rule

primarily dealt with issues related to

CAA section 181, this rule addresses

issues related to CAA sections 182

through 185B. Subpart 2 is the focus of

much of the discussion of this rule.

When a topic is discussed that is not

covered by subpart 2, reference will be

made to the more general subpart 1

requirements found in CAA sections

171 through 179B, or to other sections

of the CAA, as appropriate. As

discussed in section II.D of this

proposal, section 110(a) infrastructure

SIPs will be the topic of a separate

guidance document.

III. What are the state implementation

plan requirements for the 2008 ozone

NAAQS?

A. What is the deadline for submitting

nonattainment area SIP elements due

under CAA section 182 for the 2008

ozone NAAQS?

Section 182 of the CAA requires states

with ozone nonattainment areas to

submit various SIP elements within

specified time periods after enactment

of the CAA Amendments of 1990: (1) An

emission inventory for the

nonattainment area within 24 months

(section 182(a)(1)); (2) a RACT SIP

within 24 months (section 182(b)(2)); (3)

a 15 percent RFP plan for Moderate and

above areas within 3 years (section

182(b)(1)); (4) an attainment plan for

Moderate areas within 3 years (section

182(b)(1)); (5) an attainment plan and

demonstration for Serious and above

areas within 4 years (section 182(c)(2));

and (6) a 3 percent per year RFP plan

for Serious and above areas within 4

years (section 182(c)(2)).

In the Phase 2 Rule, we interpreted

the SIP submittal time periods in

section 182 to run from the effective

date of designation and classification for

the 1997 ozone NAAQS. See 70 FR

71670. However, with regard to

attainment demonstrations for Serious

and above areas, we provided 3 years,

instead of 4 years, to submit an

attainment demonstration. Specifically,

we promulgated 40 CFR 51.908(a)

which required all areas classified

Moderate or higher to submit attainment

demonstrations based on photochemical

grid modeling no later than 3 years after

the area's designation for the 1997

8-hour ozone NAAQS. We explained

that at the time of the 1990

Amendments, Congress required

Serious and above areas to base their

attainment demonstrations on

photochemical grid modeling, which at

that time was a relatively new modeling

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technique. Congress then gave those

areas 4 years to submit an attainment

demonstration. In the Phase 2

rulemaking, we determined that

photochemical grid modeling should be

required for Moderate areas as well as

for Serious and above areas, and we

explained that the technique was no

longer new and that areas did not need

4 years to submit an attainment

demonstration based on such modeling.

The policy reasons that existed at the

time the Phase 2 rule was developed,

specifically, the need for timing

consistency between subpart 1 and

subpart 2 areas within the same region,

the timing of the large-scale transport

modeling underway at the time, and the

option of coordinated planning with the

similarly timed PM 2.

5 SIPs, are not

circumstances faced today by the

Serious and higher areas.

For purposes of the 2008 ozone

NAAQS, the EPA proposes in the

alternative the following two

approaches regarding the deadlines for

submitting the various elements of the

state implementation plan.

Period of time provided by the statute.

Section 182 of the CAA specifies a time

period, running from the date of

enactment of the 1990 CAA

Amendments, for states to submit each

required element of the state

implementation plan for nonattainment

areas. Under this first alternative, the

EPA is proposing that the time period

specified in section 182 for the

submission of each required element

(i.e., 2 years for emission inventories

and RACT SIPs, 3 years for 15 percent

RFP plans and Moderate area attainment

demonstrations and 4 years for 3

percent per year 13 RFP plans and

attainment demonstrations from Serious

and higher areas), as described above,

would apply and that such time periods

would run from the effective date of an

area's designation for the 2008 ozone

NAAQS. State's choice: consolidated

SIP submittal due 30 months after

designation, or period of time provided

by the statute. The EPA's second

alternative, which is our preferred

alternative, is for the state to have the

choice of meeting the statutory deadline

for each required SIP element as set out

in section 182, or following a

consolidated submittal approach. Under

the consolidated approach, all of the

required SIP elements for a

nonattainment area would be submitted

at one time, no later than 30 months

after the effective date of the area's

designation for the 2008 ozone NAAQS.

13 Typically submitted in 3-year increments, thus

as 9 percent RFP plans that produce average

reductions of 3 percent per year.

The consolidated approach represents a

more expeditious schedule for areas to

submit attainment demonstrations and

RFP SIPs for the 2008 ozone NAAQS,

but it provides slightly more time for

submittal of emission inventories and

RACT SIPs. We are proposing under this

alternative that a state can choose, for a

particular nonattainment area, to submit

all SIP elements required under section

182 no later than 30 months after the

effective date of designation; or the state

can choose to submit all SIP elements in

accordance with the time provided by

the statute. As part of this alternative

proposal, a state with more than one

nonattainment area can select the option

that is most preferable for each area.

This alternative proposal applies only to

areas designated Moderate and above for

the 2008 ozone NAAQS.

The consolidated approach may be

preferable for some states because it

would allow them to undertake a more

coordinated and less burdensome

planning process, including only having

one period for public review and

opportunity for public hearing for all

the SIP elements involved. (Note that all

states that include part of a multi-state

nonattainment area would need to

consult with each other and adopt the

same SIP submittal deadline(s) with

respect to the entire multi-state area.)

Moreover, we believe that the 30-month

timeframe would be reasonable for

many areas. Those states with areas

currently classified as Moderate and

above for the 2008 ozone NAAQS have

significant experience preparing

modeled attainment demonstrations and

many are participating in ongoing

modeling with nearby states to address

regional ozone issues. Thus, for some

areas it may be less burdensome to

submit all ozone SIP elements

concurrently within 30 months of

designation. We note that an added

benefit of earlier completion of the

attainment planning process is that it

provides states and sources with

additional time to implement the

measures adopted as part of the RFP

plan and attainment demonstration.14

This is particularly critical for Moderate

areas, which have only 6 years to attain

the standard. The EPA designated most

areas on April 30, 2012, with an

effective date 60 days after publication

in the Federal Register. Thus,

attainment demonstrations would be

14 Emission reductions resulting from

implementation of RACT, RFP and other state and

federal requirements may, in some cases, not be

sufficient to demonstrate attainment. States are

responsible for adopting any additional measures

needed to attain the NAAQS. These additional

measures would be submitted by the state as part

of the attainment plan and demonstration.

due under this option for most areas by

January 2015, prior to the beginning of

the 2015 ozone season. The EPA

believes that the later due date for

emission inventories and RACT SIPs

under this option would provide for a

de minimis delay. Implementation of

the RACT requirements would still

occur on the schedule established by

CAA section 182(b)(2)(C). From an

accountability standpoint, if the 30

months elapse with no SIP submittal

from the state, the EPA will assume by

default that the state has chosen to take

the amount of time allowed by the

statute for the attainment plan and

demonstration, and is late with the

RACT and emissions inventory SIP and

thus potentially subject to a finding of

failure to submit.

B. What are the requirements for

modeling and attainment demonstration

SIPs?

An attainment demonstration consists

of: (1) Technical analyses, such as base

year and future year modeling, to locate

and identify sources of emissions that

are contributing to violations of the

2008 ozone NAAQS within the

nonattainment area (i.e., analyses

related to the emissions inventory for

the nonattainment area and the

emission reductions necessary to attain

the standard); (2) a list of adopted

measures (including RACT controls)

with schedules for implementation and

other means and techniques necessary

and appropriate for demonstrating RFP

and attainment as expeditiously as

practicable but no later than the outside

attainment date for the area's

classification; (3) a RACM analysis; and

4) contingency measures required under

section 172(c)(9) of the CAA that can be

implemented without further action by

the state or the Administrator to cover

emissions shortfalls in RFP plans and

failures to attain. Penalty fee programs

for failure to attain in Severe and

Extreme areas are also associated with

or are part of the attainment

demonstration and are addressed in

other sections of this proposal.

1. Marginal Areas

Under section 182(a), Marginal areas

have up to 3 years from designation to

attain the NAAQS, and are not required

to submit an attainment demonstration.

When Congress amended the CAA in

1990, it anticipated that nonattainment

areas with ozone concentrations close to

the level of the NAAQS would likely

come into attainment within 3 years

after designation as nonattainment

without any additional local planning.

Although states are not required to

develop attainment demonstrations for

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Marginal areas, there may be modeling

completed by the EPA or other state

organizations which may provide useful

information regarding whether Marginal

areas may be expected to attain by their

attainment dates. For example, as part of

the Cross State Air Pollution Rule

(CSAPR), the EPA modeled the expected

improvements in air quality from

existing federal, state and local controls.

We encourage states to use available

modeling information to examine the

likelihood of whether a Marginal area

would attain within 3 years.

Where such modeling indicates that a

Marginal area is unlikely to attain the

standard by its attainment date without

the implementation of additional

controls, we strongly encourage states or

local agencies to work to get the

necessary emission reduction measures

in place in order to meet the ozone

NAAQS within the 3-year timeframe.

Marginal areas that do not attain the

standard by the required date are

required to be reclassified (or "bumped

up") to the Moderate classification,

which would require the application of

mandatory planning and control

requirements. If it is not possible to

implement sufficient additional controls

for a Marginal area to attain by the 3-

year maximum attainment date, states

may wish to consider voluntarily

requesting reclassification to the

Moderate classification. The EPA

intends to offer assistance to the states

as they consider the most appropriate

course of action for Marginal areas that

may be at risk of failing to meet the

NAAQS within the applicable 3 year

timeframe: whether to adopt additional

controls or seek a voluntary

reclassification to the next higher

category. Early reclassification would

provide more time for adopting and

implementing the control measures

needed for attainment by the Moderate

area attainment date than the area

would have if it is reclassified after it

fails to attain within 3 years of

designation. If an area is reclassified

based on an EPA determination that the

area failed to attain by its attainment

date, the state would likely have only 18

to 24 months to adopt and implement

controls by the beginning of the final

full ozone season before the Moderate

area deadline because the statute

requires areas to attain by the latest

acceptable attainment date for any

classification regardless of when the

area is reclassified.

2. Moderate Areas

Section 182(b)(1)(A) requires states

with Moderate (and higher classified)

ozone nonattainment areas to develop

an attainment demonstration that

provides for reductions in VOC and

NON emissions "as necessary to attain

the national primary ambient air quality

standard for ozone." Although not

specifically required by the statute, in

the Phase 1 Rule for the 1997 ozone

NAAQS, the EPA required states with

Moderate and above areas to submit

photochemical grid modeling or another

equivalent analytical method to satisfy

the attainment demonstration

requirement for each area, which is the

CAA requirement that applies for

Serious and above areas (CAA section

182(c)(2)(A)). The EPA explained that it

was reasonable to do so because this

modeling was generally available and

reasonable to employ. The EPA is

proposing to continue to require states

with an area classified as Moderate to

submit an attainment demonstration

based on photochemical modeling or

another equivalent analytical method

that is determined to be at least as

effective, as is required under the Act

for Serious and above areas and multistate nonattainment areas. 15

This requirement explicitly allows for

alternative analytical methods to be

substituted for or used to supplement a

photochemical modeling-based

assessment of an emissions control

strategy. Any alternative analysis should

be based on technically credible

methods and provide for the timely

submittal of the attainment

demonstration and implementation of

SIP controls. States should review the

EPA modeling guidance and consult

their appropriate EPA regional office

before proceeding with alternative

analyses.

3. Serious and Above Areas

For Serious and higher-classified

areas, we continue to believe that

photochemical modeling is the most

technically credible method of

estimating future year ozone

concentrations based on projected VOC

and NON precursor emissions. States

with areas classified as Serious and

higher must submit an attainment

demonstration based on photochemical

modeling or an alternative analytical

method determined by the

Administrator to be at least as effective.

4. What guidance is there for using

models to demonstrate attainment?

The procedures for modeling ozone as

part of an attainment demonstration are

well developed and described in the

EPA's "Guidance on the Use of Models

15 State plans for single nonattainment areas that

include more than one state (multi-state

nonattainment areas) are also required to have

photochemical modeling (see CAA section

182(i)(1)(B)).

and Other Analyses for Demonstrating

Attainment of Air Quality Goals for

Ozone, PM 2.

5 , and Regional Haze." 16

This guidance document, as it currently

exists, can be used by states developing

attainment demonstration SIPs for the

2008 ozone NAAQS. The EPA is

considering updates to the guidance to

address ozone modeling for the 2008

ozone NAAQS. We will issue any

updates as needed.

All photochemical modeling in

support of an attainment demonstration

should be consistent with the EPA's

ozone modeling guidance. States with

areas that were nonattainment for the

1997 ozone NAAQS or are

nonattainment today have invested

considerable resources in local and/or

regional ozone modeling analyses. We

encourage states to work together to

leverage the work and resources from

these existing analyses, as well as to

develop new analyses for the 2008

ozone NAAQS as appropriate. The

application of air quality models

requires a substantial effort by state

agencies and the EPA. Therefore, in

order to maximize efficient use of time

and resources, states should work

closely with the appropriate EPA

regional offices in executing each step of

the modeling process. Coordination

with the EPA during the modeling

process will help increase the likelihood

that the EPA will be able to approve the

modeling-based attainment

demonstration.

5. High Electricity Demand Days

(HEDD)

The current modeling guidance

addresses, among many other

considerations, episode selection and

accounting for potentially higher VOC

and/or NON emissions during high

energy demand periods. A study has

identified high NON emissions from

electric generating units (EGUs) in the

Northeast Corridor on summer days

when demand for electricity is high 17

and has labeled these days as "High

Electricity Demand Days" (HEDD). This

study indicates that NON emissions

from EGUs during periods of high

electricity demand in the Northeast may

be significantly greater than emissions

that occur on an average summer day.

This spike in NON emissions is due to

increased power demand on hot

summer days to meet air conditioning

16 The modeling guidance can be found at the

following Web site: http://www.epa.gov/scramOol/

guidance/guide/final-03-pm-rh-guidance.pdf.

17 "High Electric Demand Day and Air Quality in

the Northeast." White Paper Prepared by the

Northeast States for Coordinated Air Use

Management. June 5, 2006. Available at: http://

WW.nesCaum.Orgl.

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and other electric power needs. High

electricity demand days require

production of additional power from

load-following EGUs and/or peaking

unit EGUs, which are less frequently

used compared to base-load EGUs. In

the Northeast Corridor, these units have

tended to be less well controlled than

base-load EGUs.

High energy demand summer days

tend to coincide with ozone episodes,

which may be in part due to the fact that

NON emissions on these days can

greatly exceed average summer day NON

emissions from electric power

generation. There has been some study

of control measures to reduce NON

emissions on HEDDs.18

Since NON emissions from electric

power generation are a significant

contributor to the total NON emissions

for many ozone nonattainment areas,

states that experience this phenomenon

should be careful to fully account for it

by ensuring that these emissions are

included in photochemical modeling of

episode days on which the phenomenon

occurs. In order to properly account for

HEDD emissions, careful attention

should be paid to the temporalization of

emissions to the specific day and hour

of the day when these emissions occur.

We note that the current modeling

guidance 19 already addresses episode

selection and development of accurate

emissions input information during

peak ozone periods. We will consider

whether additional updates to the

modeling guidance are needed to

address modeling of the HEDD

phenomenon.

6. Modeled Attainment Test

Models are used to test whether

control measures to be adopted in the

SIP are likely to result in attainment of

the standard. The modeled attainment

test for the ozone NAAQS under the

EPA's guidance uses a combination of

ambient ozone data and modeled ozone

concentrations to estimate future year

air quality. The attainment test is

applied at each monitor location within

or near a designated nonattainment area.

Models are used in a relative sense to

estimate the response of measured air

quality to future changes in emissions.

Future air quality is estimated by

multiplying recent monitored values by

the modeled relative response to

18 See, e.g., Chris James and Jeremy Fisher, Ph.D.

Reducing Emissions in Connecticut on High

Electric Demand Days (HEDD): A Report for the CT

Department of Environmental Protection and the

U.S. Environmental Protection Agency. July 25,

2008. Synapse Energy Economics, Inc. 22 Pearl St.,

Cambridge, MA 02139.

19 http://www.epa.govlscramOOl/guidance guidel

final -3-pm-rh -guidance.pdf.

projected future changes in emissions. 20

The EPA additionally recommends

application of an attainment test to be

performed in unmonitored areas. The

recommended attainment test

methodology for unmonitored areas has

been used in recent 8-hour ozone SIPs

developed for the 1997 ozone NAAQS.

To make it easier for states to apply the

attainment tests, both the monitor-based

test and the unmonitored area test have

been incorporated in a software package

called the "Modeled Attainment Test

Software" (MATS). The MATS is

available for no charge at: http://

www.epa.gov/scram 001/

modelingapps mats.htm.

7. What future year(s) should be

modeled in attainment demonstrations?

The future modeling year should be

selected such that all emissions control

measures relied on for attainment will

have been implemented by that year.

Note that for purposes of the 1997 ozone

NAAQS and as we are proposing here

for the 2008 ozone NAAQS, control

measures relied upon to demonstrate

attainment should be implemented by

the beginning of the last full ozone

season prior to the area's attainment

date. To demonstrate attainment, the

modeling results for the nonattainment

area must predict that emissions

reductions implemented by the

beginning of the last full ozone season

20 The EPA's guidance on attainment

demonstrations (Guidance on the Use of Models

and Other Analyses for Demonstrating Attainment

of Air Quality Goals for Ozone, PM2.5, and Regional

Haze, April 2007) recommends that states may

supplement the attainment test with other evidence

in a "weight of evidence" determination of whether

the nonattainment area is likely to attain the

NAAQS by its deadline. The EPA intends to

recommend in a forthcoming update of this

guidance that other evidence that can be considered

includes recent monitored values that have been

adjusted so that they better represent the air quality

that would have existed in the absence of any

unusual natural or anthropogenic events (if any)

that influenced ozone concentrations on the

monitored days. The EPA intends to apply certain

eligibility conditions to this recommendation.

Specifically, the EPA intends to apply an eligibility

approach that is like the set of eligibility criteria in

the Exceptional Events Rule. However, we will not

apply the "no exceedance but for" concept that is

part of the provision in 50.14(c)(3)(iv)(D) that limits

the EPA approvals for data exclusion to situations

in which there would have been no exceedance or

violation of the NAAQS "but for" the event. In this

way, the EPA guidance will effectively recommend

that states can apply Exceptional Events Rule-like

considerations to situations in which an event has

exacerbated the level of a NAAQS exceedance (but

that did not cause the exceedance in the "but for"

sense) on historical days that occur during the

ambient data base year period that is used in the

attainment test to project future air quality. The

EPA expects there to be limited situations where

this potential adjustment would make a difference

between future year estimated attainment and

nonattainment. The EPA intends to work with state

air agencies in the development of the planned

update to our guidance on this topic.

preceding the attainment date will

result in ozone concentrations that meet

the level of the standard.21 Because an

area must attain "as expeditiously as

practicable," additional considerations

are necessary before a future modeling

year can be established. For example,

although the maximum attainment date

for a Moderate area designated in 2012

would be December 31, 2018, under the

2008 ozone NAAQS Classifications

Rule, the state would need to conduct

a RACM analysis (CAA section

172(c)(1)) to determine if it can advance

the area's attainment date by at least a

year. 22 Results of the RACM analysis

may indicate attainment can be

achieved earlier (e.g., by December 2016

or December 2017) through

implementation of reasonably available

control measures prior to the beginning

of an earlier ozone season. For instance,

if emission reductions sufficient to

demonstrate attainment are

implemented prior to the 2016 ozone

season, then in this example the

attainment year and the future

projection year should be 2016. We

strongly recommend that the state

discuss the selection of the future

year(s) to model with the appropriate

EPA regional office as part of the

modeling protocol development

process.

8. Multi-State Nonattainment Areas

The CAA requirement for multi-state

ozone nonattainment areas (CAA

section 182(j)) requires each state in

which a portion of a multi-state ozone

nonattainment area is located to use

photochemical grid modeling or any

other analytic method determined by

the Administrator to be at least as

effective and to take all reasonable steps

to coordinate, substantively and

procedurally, the development,

submittal and implementation of SIPs

applicable to the various states within

the nonattainment area. The EPA

interprets CAA section 182(j) to require

coordination on all aspects of

nonattainment SIPs, including the

development of an attainment

demonstration.

21 Note that for purposes of the 8-hour ozone

NAAQS, a determination of attainment (or failure

to attain), which EPA is required to make after the

attainment date has passed, is based on the most

recent 3 complete years of data prior to the area's

attainment date. Attainment date extensions are

only available if the 4th maximum 8-hour average

ozone concentration in the attainment year is below

the level of the standard.

22 See section III.D.2 of this proposal for a

discussion of RACM analysis requirements.

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C. What are the RFP requirements for

the 2008 ozone NAAQS?

1. Background

Areas that are designated

nonattainment for ozone must achieve

RFP toward attainment of the ozone

NAAQS. Part D of the CAA contains

three separate provisions regarding RFP.

Under subpart 1, section 172(c)(2)

contains a general requirement that

nonattainment SIPs must provide for

reasonable further progress; this

provision does not define RFP, but

provides authority for the Administrator

to do so. Sections 182(b)(1) and

182(c)(2)(B) under subpart 2 contain

specific percent reduction targets for

ozone nonattainment areas classified as

Moderate and above and Serious and

above, respectively. For Moderate and

above areas, section 182(b)(1) requires a

15 percent reduction in VOC emissions

from the baseline anthropogenic

emissions over the 6-year period

between designation and the Moderate

area maximum attainment date. For

Serious and above areas, section

182(c)(2)(B) requires an additional 3

percent per year reduction in VOC

emissions beginning 6 years after

designation until the attainment date. 23

For the additional RFP requirement for

Serious and above areas, section

182(c)(2)(B) allows NON reductions to

be substituted for VOC reductions under

certain conditions. Note that the 15

percent requirement must be met by the

end of the 6-year period regardless of

whether the state attains the NAAQS

prior to that point. The 3 percent per

year requirement for Serious and above

areas runs until the attainment date.

The Phase 2 Rule interpreted the

requirements of subpart 2 as they would

apply to areas for the 1997 ozone

NAAQS. With respect to RFP, the Phase

2 Rule interpreted the section 182(b)(1)

15 percent RFP requirement such that

an area that had already met the 15

percent RFP requirement for VOC under

the 1-hour ozone NAAQS (for the first

6 years after the RFP baseline year for

the 1-hour ozone NAAQS) would not

have to fulfill that requirement again.

Instead, Moderate areas would be

treated like areas covered under section

172(c)(2), and Serious and above areas

would be covered under section

182(c)(2)(B). For the purposes of the

1997 ozone NAAQS, the EPA

interpreted section 172(c)(2) to require

Moderate areas to obtain 15 percent

23 CAA section 182(c)(2)(B) states that Serious

and above areas must achieve additional reductions

of at least 3 percent per year "averaged over each

consecutive 3-year period." Thus it is equivalent to

a nine percent additional reduction in baseline

emissions for each subsequent 3-year period.

ozone precursor emission reductions

over the first 6 years after the baseline

year for the 1997 ozone NAAQS, and

interpreted section 182(c)(2)(B) to

require Serious and above areas to

obtain 18 percent ozone precursor

emission reductions in that 6 year

period. Under the section 172(c)(2) and

182(c)(2)(B) RFP requirements, NON

emission reductions could be

substituted for VOC reductions. This

provision of the Phase 2 Rule was

upheld in NRDCv. EPA, 571 F.3d 1245

(D.C. Cir. 2009).

2. In general, what is the EPA proposing

as the RFP requirements for the 2008

ozone NAAQS?

The EPA is proposing a number of

provisions to address issues relevant to

implementing RFP under the 2008

ozone NAAQS: (1) The timing for the

submission of RFP plans; (2) restrictions

on emission reduction measures that

can be used to fulfill the RFP

requirements under subpart 2; 3) the

RFP plan requirements of section

182(b)(1) of the CAA for nonattainment

areas classified as Moderate or higher

under the 2008 ozone NAAQS for which

no portion of such areas previously

fulfilled the 15 percent RFP requirement

for VOC in section 182(b)(1); (4) the RFP

plan requirements for nonattainment

areas classified as Moderate or higher

under the 2008 ozone NAAQS which

consist entirely of former nonattainment

areas that under a prior ozone NAAQS

fulfilled the 15 percent RFP requirement

for VOC in section 182(b)(1); (5) the RFP

plan requirements for nonattainment

areas classified as Moderate or higher

under the 2008 ozone NAAQS which

consist partially of former

nonattainment areas that under a prior

ozone NAAQS fulfilled the 15 percent

RFP requirement for VOC in section

182(b)(1); and (6) proposed procedures

for calculating RFP targets. Hereafter in

the discussion of RFP requirements

within this section, when we use the

term "2008 nonattainment area" we

mean "nonattainment area classified as

Moderate or higher under the 2008

ozone NAAQS."

a. What is the deadline for submitting

RFP plans?

As detailed in section III.A of this

preamble, the EPA is proposing two

options regarding the deadline(s) for

submittal of the various SIP elements

required for an ozone nonattainment

area based on its classification for the

2008 ozone NAAQS. The first option is

that the required SIP elements would be

due in the time frame provided for such

elements in section 182, with the

specified time periods running from the

effective date of designation for the 2008

ozone NAAQS. Thus, the RFP plan

addressing the first 6-year period for

Moderate and higher classified areas

would be due 3 years from the effective

date of designation; and the RFP plan

addressing the additional 3 percent per

year requirement for Serious and higher

classified areas would be due 4 years

from the effective date of designation.

The second option is to give states the

choice to either submit the various SIP

elements required for an area according

to the timeframes specified by statute or

to submit all of the required SIP

elements within 30 months of the

effective date of designation for the 2008

ozone NAAQS; in other words, the state

would submit one consolidated SIP,

including all RFP obligations, no later

than 30 months from the effective date

of designation. For the same reasons

discussed in section III.A of this

preamble (related to SIP due dates), the

EPA believes that it may be reasonable,

and preferred by some states, to allow

states to submit the RFP plans within 30

months in conjunction with all other

required SIP elements.

We are soliciting comment on options

for submission deadlines as listed in

this section and section III.A.

b. Restrictions on Emission Reduction

Measures That Can Fulfill the RFP

Requirement

The CAA places certain restrictions

on the emission reductions that are

creditable toward meeting the RFP

requirements. To be creditable, the

reductions must meet the conditions in

CAA sections 182(b) and 182(c),

including that reductions:

e Must be from measures required in

the SIP, in a title V permit, or from rules

promulgated by the EPA;

* Must occur during the RFP period;

* May not come from the pre-1990

EPA rules for motor vehicle exhaust and

evaporative emissions; and

* May not come from the EPA rules

limiting the Reid vapor pressure (RVP)

of gasoline that were implemented by

1992.24

We are proposing that, except as

specifically provided in section

182(b)(1)(D) of the CAA, all SIPapproved or federally promulgated

emissions reductions that occur after the

baseline emissions inventory year are

creditable for purposes of the RFP

requirements, provided the reductions

meet the standard requirements for

24 CAA section 182(b)(1)(D)(ii) states that

"Regulations concerning Reid vapor pressure

promulgated by the Administrator by November 15,

1990, or required to be promulgated under section

7545(h) of this title" are not creditable toward

required RFP reductions.

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creditability.25 That is, to receive SIP

credit, the reductions must be

enforceable, quantifiable, permanent

and surplus. We promulgated a

regulatory provision adopting this same

interpretation for purposes of

implementing the 1997 ozone NAAQS.

See 40 CFR 51.910(a)(2). CAA section

182(b)(1)(D) imposes limitations on

specific measures for which states may

take credit for RFP reductions required

under CAA sections 182(b)(1) and

182(c)(2)(B).

We are also proposing that all

emission reductions creditable toward

meeting RFP requirements must be from

sources located within the

nonattainment area. Section C.4 below

discusses this issue in further detail.

c. What are the RFP plan requirements

for 2008 ozone nonattainment areas for

which no portion of the area has

previously been required to meet the 15

percent RFP requirement for VOC in

section 182(b)(1) of the CAA?

Section 182(b)(1) of the CAA requires

ozone nonattainment areas classified as

Moderate or higher to submit a RFP plan

to achieve a 15 percent reduction in

VOC baseline emissions over a 6-year

period following the baseline year. If the

area is classified Serious or higher,

section 182(c)(2)(B) of the CAA requires

an additional RFP plan to achieve an

average of 3 percent additional

emissions reductions per year for each

subsequent 3-year period after the

conclusion of the initial 6-year RFP

period specified by section 182(b)(1).

We are proposing that the RFP plan

for a 2008 nonattainment area must

provide for a 15 percent reduction in

VOC emissions from the baseline

emissions in the 6 years following the

baseline emissions inventory year if no

portion of that 2008 nonattainment area

has already fulfilled the 15 percent RFP

plan requirement for VOC.26 If such

2008 nonattainment area is classified as

Serious or higher, the RFP plan for that

2008 nonattainment area must in

addition achieve an average of three

percent additional emissions reductions

per year for each subsequent 3-year

period after the conclusion of the initial

6-year period specified by section

182(b)(1). We promulgated a similar

regulatory provision adopting this

25 Note that section LL.C.2.f. below discusses the

EPA's proposal regarding removal of the

requirement to calculate non-creditable emissions

for pre-1990 vehicles.

26 "Fulfilled the 15 percent RFP plan requirement

for VOC" means EPA has approved an RFP plan for

the geographic area as meeting the 15 percent RFP

plan requirement for VOC specified in section

182(b)(1) of the CAA under a prior ozone NAAQS,

whether it is the 1-hour ozone NAAQS or the 1997

8-hour ozone NAAQS.

interpretation for purposes of

implementing the 1997 ozone NAAQS.

See 40 CFR 51.910(a)(1)(i).

In the alternative, we are proposing to

allow an area to meet the 15 percent

RFP requirement in whole or in part

with NO reductions in lieu of VOC

reductions if that area can demonstrate

that it has in fact achieved a 15 percent

reduction in VOC emissions from a 1990

baseline. There are two reasons that we

believe it makes sense to allow areas to

substitute NON for VOC in the 15

percent RFP plans. First, our

understanding of the effects of

reductions of VOC and NON on ambient

ozone levels has greatly improved since

the 1990 CAA Amendments were

enacted, and there are technical tools

more readily available to help states

predict the combination of VOC and/or

NON that will be most effective in

reducing ozone in a particular area. In

many areas we now know that NON

reductions will have a far greater effect

than VOC reductions on reducing

ambient ozone concentrations. In fact,

in some areas background levels of

naturally-occurring VOC are so high that

reductions in manmade VOC have

limited effect on ozone. Since the

purpose of the RFP provisions in section

182 is to foster the achievement of

reasonable further progress toward

attainment, we believe that it makes the

most sense to allow states to credit

toward the RFP requirement those

reductions that an area most needs to

reach attainment. Second, the mix of

emissions across the country and in

specific areas is very different than it

was in 1990 because of emission

controls that have gone into effect over

the last 20 years. A variety of national

and local VOC control measures

affecting mobile and stationary sources

have already substantially reduced the

levels of manmade VOC. Since 1990, the

EPA has issued aggressive national rules

to reduce tailpipe VOC emissions from

on-road vehicles and from non-road

engines. The EPA has also reduced

evaporative emissions and vehicle

refueling emissions through vehicle

onboard refueling vapor recovery

systems. VOC emissions from most

major industrial sectors have also been

substantially reduced through controls

required to meet relatively stringent

standards for hazardous air pollutants.

The EPA has also promulgated national

rules limiting the VOC content of the

most ubiquitous paints/coatings and

consumer products. These efforts have

substantially reduced the anthropogenic

VOC emissions inventory such that

additional area-specific VOC reductions

will be increasingly difficult to achieve.

As a further alternative, if we do not

finalize the proposal above to allow any

area to substitute NON reductions for

VOC reductions where such area can

demonstrate that it has achieved a 15

percent reduction in VOC emissions

from a 1990 baseline, we are proposing

to allow such substitution only for areas

located in the Ozone Transport Region

(OTR) that would be subject to the 15

percent RFP requirement for the first

time as a designated nonattainment area

for the 2008 ozone NAAQS. Although

attainment areas in the OTR were not

required to adopt 15 percent RFP plans

under section 184 of the CAA, they were

required to adopt certain VOC reduction

measures such as enhanced vehicle I/M

plans in metropolitan statistical areas

(MSAs) with a population of 100,000 or

more, and RACT for all sources covered

by a control technique guideline (CTG).

At the time of the 1990 Amendments it

was expected that VOC reductions from

those measures would account for a

significant portion of the 15 percent RFP

requirement for areas designated

nonattainment. Thus, since attainment

areas in the OTR were required to adopt

and implement many of the same

measures that applied in nonattainment

areas, we are proposing that such areas

should be treated as having met the 15

percent RFP requirement if they can

demonstrate that they did, in fact,

achieve a 15 percent reduction in VOC

emissions between 1990 and 1996 (even

though they of course would not have

submitted a 15 percent plan as they

were not subject to the 15 percent

requirement at that time). In such a case,

the area would be treated the same as a

nonattainment area that previously met

the 15 percent requirement, as

discussed below in section III.C.2.d.27

Specifically, these areas would still be

required to submit a plan to achieve a

15 percent emission reduction, but

could substitute NON reductions for

VOC in such plan.

27 The EPA's official on-road emissions model,

MOVES, currently allows states to model emissions

in 1990 and 1999 and later years, but not in 1996.

EPA will evaluate whether the capability of

modeling emissions in 1996 needs to be added to

MOVES, or whether some other methodology can

be used for this analysis.

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d. What are the RFP plan requirements

for 2008 ozone nonattainment areas that

consist entirely of one or more

nonattainment areas for a former ozone

NAAQS or pieces of nonattainment

areas for a former ozone NAAQS where

such areas fulfilled the 15 percent RFP

plan requirement for VOC for that

former ozone NAAQS?

This provision covers any 2008

nonattainment area 28 which consists

entirely of a nonattainment area or

portions of nonattainment areas for

which we previously approved an RFP

plan as meeting the 15 percent RFP plan

requirement for VOC in section

182(b)(1) of the CAA. Such a 2008

nonattainment area could consist of one

or more 1-hour nonattainment areas,

one or more nonattainment areas under

the 1997 ozone NAAQS, or a

combination of nonattainment areas for

either the 1-hour or 1997 ozone

NAAQS. However, all portions of the

area that are a part of the 2008

nonattainment area must have an

approved 15 percent RFP plan for either

the 1-hour or the 1997 ozone NAAQS.29

We are proposing that such 2008

nonattainment areas have met the CAA

requirement for a 15 percent VOC

reduction plan and are not required to

fulfill that requirement again. As we did

for the 1997 ozone NAAQS, we propose

to interpret the RFP requirement in

section 172(c)(2) to mean that a

Moderate area must achieve a 15

percent reduction in baseline VOC

emissions, but that NON emission

reductions may be substituted for the

VOC reductions in the manner specified

in section 182(c)(2)(C). Under section

182(c)(2)(B), Serious and higher

classified areas would be required to

achieve an average of 3 percent

emission reductions per year for each 3-

year period following the baseline year

(i.e., a total of 18 percent emissions

reduction in the first 6 years) and NON

emission reductions could be

substituted as provided under section

182(c)(2)(C).

28 77 FR 30088, May 21, 2012.

29 The following nonattainment areas were

nonattainment for both the 1-hour and the 1997

ozone NAAQS, and remained the same size under

the 2008 ozone NAAQS compared to the 1997

ozone NAAQS: Baltimore, MD; Los Angeles-San

Bernardino Counties (West Mojave Desert), CA; Los

Angeles-South Coast Air Basin, CA; Riverside

County (Coachella Valley), CA; Sacramento Metro,

CA; San Joaquin Valley, CA; and Ventura County,

CA.

e. What are the RFP plan requirements

for 2008 ozone nonattainment areas that

include portions consisting of all or a

piece of one or more nonattainment

areas for a previous NAAQS and which

fulfilled the 15 percent RFP plan

requirement for VOC for that previous

NAAQS and portions that have never

been subject to or never have fulfilled

the 15 percent RFP plan requirement for

VOC for a previous NAAQS?

This provision addresses those areas

that include all or part of a

nonattainment area under a former

ozone NAAQS that fulfilled the 15

percent RFP plan requirement for VOC

and all or part of an area that was not

subject to or did not meet the 15 percent

requirement for a former ozone NAAQS.

The most common situation in which

this would arise is when a 2008

nonattainment area consists of a former

nonattainment area and additional

surrounding areas (e.g., all or part of

surrounding counties) that have not

previously been designated

nonattainment for ozone.

For such 2008 nonattainment areas,

we are proposing that the state choose

between two approaches for addressing

the 15 percent RFP requirement. First,

the state could choose to treat the entire

area as an area that never met the 15

percent requirement, and meet the

requirements of subsection III.C.2.c of

this section, described previously.

Second, the state could choose to treat

the 2008 nonattainment area as divided

into two portions: the former non-RFP

plan portion and the former RFP plan

portion. For the former non-RFP plan

portion of the 2008 nonattainment area,

the plan would establish a separate 15

percent VOC reduction requirement

under section 182(b)(1) of subpart 2.

However, VOC emissions reductions to

meet the 15 percent requirement may

come from across the entire 2008

nonattainment area, provided that the

former RFP plan portion of the area also

has a VOC reduction target as part of its

RFP plan for the 2008 ozone NAAQS. If

the RFP plan for the 2008 ozone

NAAQS for the former nonattainment

area relies solely on NON reductions,

then the portion of the nonattainment

area never before subject to

nonattainment requirements is still

responsible for the 15 percent VOC

reductions.

For the former RFP plan portion of the

2008 nonattainment area, the RFP

requirements in section 172(c)(2) will

apply if the 2008 nonattainment area is

classified as Moderate as described

previously in this document in

subsection III.C.2.d of this section. Also,

as described in subsection III.C.2.d of

this section, CAA section 182(c)(2)(B)

RFP requirements will apply if the 2008

ozone NAAQS nonattainment area is

classified as Serious or higher.

f. How should states account for noncreditable reductions when calculating

RFP emission reduction targets?

Section 182(b)(1)(D) specifies four

categories of control measures that are

not creditable toward the 15 percent

RFP requirement under CAA section

182(b)(1)(A): (i) Measures related to

motor vehicle exhaust or evaporative

emissions promulgated by January 1,

1990; (ii) regulations concerning RVP

promulgated by November 15, 1990; (iii)

measures to correct previous RACT

requirements; and (iv) measures

required to correct I/M programs. With

the exception of the first category,

reductions from these measures were

achieved many years ago, so the

question of creditability is moot for RFP

credit for the 2008 ozone NAAQS. For

the motor vehicle standards, a small

amount of reduction is still occurring

due to fleet turnover. In Appendix A to

the preamble of the Phase 2 Rule (70 FR

71696, as amended by 71 FR 58498,

October 4, 2006), we presented

methodologies for accounting for noncreditable emission reductions

consistent with requirements of section

182(b)(1)(D)(i) of the CAA. The

procedures vary with the types of areas.

The EPA also issued a memorandum

that supplements the Appendix.30 We

are proposing as one alternative to

eliminate the obligation for states to

continue to perform this calculation

because these reductions are now very

small and will continue to further

decrease in future years. The calculation

of non-creditable reductions is based on

the impact of pre-1990 model year

vehicles on the total emissions

inventory. In 2011, pre-1990 model year

vehicles are estimated to account for

only 2 percent of vehicle miles traveled

(VMT), 5 percent of total on-road VOC

emissions and 3 percent of total on-road

NON emissions using national estimates

of fleet composition, activity and

emissions from the EPA's latest

emissions model. By 2017, the first year

for which non-creditable reductions

must be calculated for the 2008 ozone

NAAQS, pre-1990 model year vehicles

will be 27 years old and older. These

vehicles will account for approximately

0.2 percent of total VMT, 0.6 percent of

total on-road VOC emissions and 0.4

percent of total on-road NON emissions

30 Memorandum from William T. Harnett re:

"8-Hour Ozone National Ambient Air Quality

Standards (NAAQS) Implementation-Reasonable

Further Progress (RFP)," August 15, 2006. See first

Q& A.

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in 2017, using national estimates of fleet

composition, activity and emissions

from the EPA's latest emissions model.

Local results may vary, but the noncreditable reductions associated with

the turnover of these vehicles

everywhere will be a very small fraction

of the total on-road VOC emissions

inventory by 2017 and will continue to

decrease over future years. Accounting

for all other emission sources, on-road

VOC emissions typically constitute less

than half of the total VOC inventory and

about half of the total NOx inventory, so

these percentages would be further

reduced in the context of the total

emissions inventory. Calculating noncreditable reductions will continue to be

a very resource-intensive process

requiring multiple modeling runs and

extensive staff time. We are proposing to

remove the burden of performing this

calculation for purposes of RFP for the

2008 ozone NAAQS based on the de

minimis nature of these non-creditable

reductions. If the final rule requires

states to account for these noncreditable reductions, we are proposing

in the alternative that the calculation

should be performed as described in

Appendix C to this preamble.

g. Alternative Approaches To Achieving

RFP

In the spirit of the Executive Order

13563 titled, "Improving Regulation and

Regulatory Review," signed by

President Barack Obama on January 18,

2011, which directs federal agencies to

offer and support flexible, common

sense approaches, the EPA is taking

comment on allowing states to use

additional alternative approaches to

achieving RFP goals. One alternative is

an air quality-based approach that

would measure RFP in terms of actual

ambient air quality improvements tied

to an area's percent emission reduction

requirements. Such an approach would

involve work on the part of the state to

translate an area's RFP emissions

reduction targets (tons) into ozone

improvement targets (ppb) based on air

quality modeling or other appropriate

analyses. The emission reduction targets

for the area should be expressed in

terms of the pollutant (VOC or NOx)

which, when reduced, is most effective

in reducing ozone concentrations in the

area. Under this approach, RFP

milestones would be satisfied if the area

implements the target emissions

reduction strategies and achieves the

targeted ozone air quality improvement

over the relevant RFP assessment

period. This approach would retain a

state's accountability for making

consistent incremental progress while

focusing on the most direct

measurement of improvement, namely

air quality. A similar approach is

already included in the implementation

rules that govern SIP development for

the PM 2.5 NAAQS (See 40 CFR

51.1009(g) and (h)).

Another alternative approach would

be to adjust (or "weight") the amount of

RFP credit given for reductions of

individual species (or similar groups) of

VOCs based on their ozone forming

potential (i.e., photochemical

reactivity). Accordingly, reductions of

VOCs with relatively high

photochemical reactivity would be

given more credit toward RFP

requirements and reductions of VOCs

with relatively low photochemical

reactivity would be given less credit

toward those requirements. For

example, reducing one ton of a highly

reactive VOC (i.e., with 1.5 times the

ozone forming potential of an average

VOC) could be given a RFP credit of 1.5

tons, reducing one ton of a low reactive

VOC (i.e., with 0.5 times the ozone

forming potential of an average VOC)

could be given a RFP credit of 0.5 tons,

and reducing one ton of a VOC with

average reactivity could be given a RFP

credit of 1.0 tons. Such an approach

provides an incentive for states to target

those VOC reductions that will have the

greatest impact on actual ozone

formation. In order to use this approach,

the EPA and/or states would need to

develop more detailed operational

parameters, guidelines or rules derived

from scientific assessment.

For both of these alternative

approaches, the EPA is seeking

comment on the usefulness and

practicality of the approach, and

specifically on whether there is

adequate legal basis under the CAA to

approve SIPs that would employ these

approaches.

3. What baseline year may states use for

the emission inventory for the RFP

requirement?

The baseline inventory for RFP is

used as the starting point for

determining a target level of emission

reductions to meet the RFP

requirement-in other words, it is the

baseline from which creditable

reductions are determined. Section

182(b)(1)(B) of the CAA, as amended in

1990, states that the term "baseline

emissions" is defined as the total

amount of actual VOC (or NOx)

emissions from all anthropogenic

sources in the area during the calendar

year 1990. The initial 6-year RFP period

covered the 6 years following the

baseline year, 1991-1996, ending in the

year that areas classified as Moderate

under the 1-hour NAAQS were required

to attain that NAAQS.

For the 2008 ozone NAAQS, the EPA

is proposing that states should use as

the baseline year for RFP the calendar

year for the most recently available

triennial emission inventory at the time

RFP plans are developed. We

promulgated a regulatory provision

adopting this same interpretation for

purposes of implementing the 1997

ozone NAAQS. See 40 CFR 51.910(d). A

triennial emissions inventory under the

Air Emissions Reporting Requirements

(AERR) Rule (73 FR 76539; December

17, 2008) is required for the year 2011

and was required to be submitted to the

EPA by December 31, 2012. For the

1997 ozone NAAQS, our regulations

also provided that a state has flexibility

to use an alternative baseline year if it

shows that the alternative year is

appropriate and justifiable. We are

proposing to allow similar flexibility for

the 2008 ozone NAAQS.

A RFP baseline year of 2011 is

analogous to the approach provided for

RFP in the CAA as amended in 1990.

The CAA required a 1990 baseline for

the 15 percent RFP requirement which

lined up the 6-year 15 percent RFP

period with the 1996 attainment date for

Moderate areas under the 1-hour

NAAQS. For the 2008 ozone NAAQS,

initial area designations were effective

in 2012 and the 6-year RFP period from

a baseline of 2011 (i.e., January 1, 2012-

December 31, 2017) would line up

reasonably well with the Moderate area

attainment date of 2018. As noted

above, the AERR Rule required states to

report emissions for calendar year 2011

to the EPA by December 31, 2012. This

is about 2.5 years before the July 20,

2015, deadline for 15 percent RFP plans

to be submitted. The EPA believes this

timing is reasonable for areas designated

nonattainment in 2012 and allows time

for states to develop and submit an RFP

plan, as well as time to implement

measures to satisfy the RFP requirement

by December 31, 2017. If a state chooses

2011 as a baseline year for a Moderate

area designated nonattainment in 2012,

the 15 percent reduction requirement

covers the period from January 1, 2012,

to December 31, 2017. The 6-year period

concludes one year prior to the

December 31, 2018, attainment date.

Areas using 2011 as a base year would

thus have to achieve whatever

additional emissions reductions are

needed to provide for attainment of the

standard by December 31, 2018. This

corresponds to the approach taken in

the Phase 2 Rule (70 FR 71615-71616).

However the EPA is also proposing

that states have the option of selecting

an appropriate and justifiable alternate

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year as a baseline year for RFP. If states

choose a pre-2011 baseline year, the

EPA is proposing that the 6-year period

for achieving the 15 percent reduction

starts in January of the year following

the selected baseline year. When a year

prior to 2011 is chosen as the baseline

year, the 6-year period thus concludes

more than one year prior to the start of

the attainment year for the area. In this

situation, the EPA is proposing that the

area is responsible for a 3 percent

emissions reduction each year after the

initial 6-year period has concluded up

to the beginning of the attainment year.

For example, if 2009 is chosen as a

baseline year for a Moderate area, the 15

percent reductions cover the period

from January 1, 2010 to December 31,

2015. The area would need to generate

an additional 3 percent emissions

reduction per year for the years 2016

and 2017. As in the Phase 2 Rule and

consistent with CAA section 182(c)(2),

Serious and higher classified areas

would need to provide in their SIPs an

additional average of 3 percent per year

emission reduction over each

subsequent year beyond the initial 6-

year period through the attainment year

(70 FR 71616).

We are proposing that for a multi-state

nonattainment area, all states associated

with the nonattainment area must

consult and agree on the same alternate

year to use as the baseline year for RFP.

4. Can emission reductions from sources

located outside the nonattainment area

boundary apply toward RFP?

a. Background

Under the EPA's initial Phase 2

Rule,31 certain emission reductions

from outside a nonattainment area can

be credited toward meeting the 1997

ozone NAAQS RFP requirement. See 70

FR 71647-49. For the same reasons

provided in our proposed rule 32 to

revise this provision for the 1997 ozone

NAAQS, the EPA is proposing to not

allow states to rely on credit for

emission reductions from outside the

nonattainment area to meet RFP

obligations for the 2008 ozone NAAQS.

The language in the CAA's baseline

emissions provision for determining the

emissions reductions required for RFP

purposes (sections 182(b)(1)(B) and

182(c)(2)(B)) is almost identical to the

language in the CAA's RACT provision

(section 172 (c)(1)). The issue of taking

credit for reductions from outside the

31 See Final Rule to Implement the 8-Hor Ozone

National Ambient Air Quality Standard-Phase 2

(70 FR 71612, November 29, 2005).

32 Reasonable Further Progress Requirements for

the 1997 8-Hour Ozone National Ambient Air

Quality Standard (75 FR 80420, December 22,

2010).

nonattainment area was raised in the

context of the RACT provision and

decided by the court in NRDC v. EPA,

571 F.3d 1245 (DC Cir. 2009). The court

there held that "the RACT requirement

calls for reductions in emissions from

sources in the area; reductions from

sources outside the nonattainment area

do not satisfy the requirement." NRDC

at 1256. We note the similarity in

language in the several provisions of the

CAA, but also the difference between

RACT, which is a source specific

requirement, and RFP, which is not.

b. Proposal

The EPA is therefore proposing that

for the 2008 ozone NAAQS states may

not take credit for VOC or NON

reductions occurring outside the

nonattainment area for purposes of

meeting the 15 percent and 3 percent

RFP requirements of sections 172(c)(2),

182(b)(1) and (c)(2)(B). This approach

would mean that RFP credit for meeting

the 15 percent VOC requirement for

Moderate and above ozone

nonattainment areas in section 182(b)(1)

and the additional 3 percent per year

requirement for Serious and above

ozone nonattainment areas in section

182(c)(2)(B) could come only from

emission reductions from within the

nonattainment area. The EPA notes that

the required 15 percent and 3 percent

reductions are calculated from the

baseline emissions inventory for the

nonattainment area, which reflects only

emissions within the nonattainment

area. In nonattainment areas where

there are few significant local emission

sources, and thus relatively small

emission inventories, the required

reduction percentages would similarly

translate into only small required

emission reductions. Areas still can and

should, where appropriate, rely on outof-area reductions for purposes of

demonstrating attainment. There is no

limitation under the attainment

demonstration provisions of the CAA

that restricts states from considering

outside-the-area reductions as part of

the modeled attainment demonstration

for an area. As EPA has previously said,

in determining the attainment date that

is as expeditious as practicable, the state

should consider impacts on the

nonattainment area of intrastate

transport of pollution from sources

within its jurisdiction, and potential

reasonable measures to reduce

emissions from those sources.

At the same time, the EPA recognizes

that not allowing credit for reductions

outside the nonattainment area will

make it more challenging for some

areas, such as the areas adjacent to the

South Coast nonattainment area in

California, namely, Coachella Valley,

West Mojave Desert and Ventura County

in California, to meet their RFP

requirements and may foreclose some

cost-effective opportunities for

emissions reductions. Despite the

court's opinion in NRDC, the EPA

continues to believe that there remain

valid policy reasons for giving states

incentive to focus on obtaining emission

reductions that are the most beneficial

and cost effective for achieving air

quality progress and attaining the ozone

standards. The EPA believes there may

be cases where the most beneficial and

cost-effective reductions are from

sources located outside the

nonattainment area boundaries. In these

cases, we believe it would be good

policy to credit the emission reductions

toward meeting RFP requirements. To

this end, the EPA is also taking

comment on whether there is a clear

legal rationale for allowing credit for

reductions outside the nonattainment

area to satisfy the RFP requirements for

the 2008 ozone NAAQS. We encourage

commenters to consider how the

baseline emission inventory should be

determined if reductions from outside

the nonattainment area were able to be

creditable for RFP requirements. If the

EPA receives comment that provides a

clear legal justification for this

approach, we will seriously consider

including this approach in the final

rule.

The EPA requests comments on the

proposal and its implications for the

2008 ozone NAAQS.

D. How do RACT and RACM

requirements apply for 2008 ozone

NAAQS nonattainment areas?

1. Reasonably Available Control

Technology

a. Background

Subpart 1 of part D of the CAA

includes a requirement that an

attainment plan must provide for the

implementation of all RACM as

expeditiously as practicable, including

such reductions that may be obtained

through RACT. 33 Subpart 2 requires

Marginal ozone nonattainment areas to

correct pre-1990 RACT requirements

and requires Moderate and above areas

to adopt RACT rules for all VOC and

33 The EPA has defined RACT as the lowest

emission limitation that a particular source is

capable of meeting by the application of control

technology that is reasonably available considering

technological and economic feasibility (December 9,

1976 memorandum from Roger Strelow, Assistant

Administrator for Air and Waste Management, to

Regional Administrators, "Guidance for

Determining Acceptability of SIP Regulations in

Non-Attainment Areas" and also in 44 FR 53762;

September 17, 1979).

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NON sources covered by existing or new

CTGs and for all other major sources of

VOC and NON (unless the state has

received a NON waiver). Additionally,

states must adopt RACT for all VOC and

NON sources covered by a CTG, and for

all other major sources of VOC and NON

in the OTR (CAA section 184(b)(1)).

Since the 1970s, the EPA has issued

CTGs that establish presumptive RACTlevel control requirements for various

source categories. The CTGs usually

identify a particular control level which

the EPA recommends as being RACT. In

some cases, the EPA has issued

Alternative Control Techniques

guidelines (ACTs) for source

categories. 34 ACTs differ from CTGs in

that they present a range for possible

control options but do not identify any

particular option as the presumptive

norm for what is RACT. Section 183(c)

of the CAA requires the EPA to "revise

and update [CTGs and ACTs] as the

Administrator determines necessary."

The EPA issued eleven new CTGs from

2006 through 2008. 35 For nonattainment

areas classified as Moderate or higher,

states are required to address RACT for

the source categories covered by CTGs.

Some of the CTGs specify the

minimum size of sources to which they

apply. Where a CTG does not specify

the minimum size of sources to which

it applies or there is no CTG for a source

category, states are required to apply the

RACT requirement to sources in a

nonattainment area that exceed the size

threshold corresponding to the statutory

definition of "major stationary source."

Section 302 of the CAA defines major

stationary source as a source that emits

100 tons per year (tpy) or more of any

air pollutant, and for ozone the air

pollutants of concern are NON and VOC.

That 100 tpy threshold, however, is

modified by subsections 182(c)-(f) of

the CAA, which define a major source

for Serious areas as a source that emits

more than 50 tpy of VOC or NOx; for

Severe areas as a source that emits more

than 25 tpy of VOC or NOx; and for

Extreme areas as a source that emits

more than 10 tpy of VOC or NOx.3 6

34 See http://www.epa.govlairlozonepollutionl

SIPToolkit/ctgs.htmL.

35 CTGs updated from 2006 through 2008:

Industrial Cleaning Solvents; Offset Lithographic

Printing and Letterpress Printing; Flexible Package

Printing; Flat Wood Paneling Coatings; Paper, Film,

and Foil Coatings; Large Appliance Coatings; Metal

Furniture Coatings; Miscellaneous Metal and Plastic

Parts Coatings; Fiberglass Boat Manufacturing;

Miscellaneous Industrial; and Automobile and

Light-Duty Truck Assembly Coatings.

36 Note, however, that an area may have

obligations under anti-backsliding provisions based

on classification under the 1-hour and/or the 1997

8-hour ozone NAAQS. Those obligations may result

in a lower major source threshold for purposes of

The CAA required states to submit

RACT SIPs for Moderate and higher

classified areas within 2 years after

enactment of the 1990 CAA

Amendments and required

implementation as expeditiously as

practicable but no later than May 31,

1995, or 54 and one-half months

following enactment of the 1990

Amendments (i.e., no later than 30 and

one-half months after the required

RACT SIP submission date).

In considering modification to

existing RACT guidance, 37 the EPA

believes there are two principles worth

emphasizing:

1. The implementation rules should

conform closely to the clearly

articulated goal of the CAA that states

implement measures that provide for

attainment of the ozone standard as

expeditiously as practicable.

2. The implementation rules should

enable, if not encourage, the adoption of

emission reduction strategies that will

be the most effective, and the most cost

effective, at reducing ozone levels.

b. Proposal

i. Substantive Requirements

RACT SIPs must contain adopted

RACT regulations, certifications where

appropriate that existing provisions are

RACT, and/or negative declarations that

there are no sources in the

nonattainment area covered by a

specific CTG source category. States

must provide notice and opportunity for

public comment on their RACT

submission even where the state

determines to certify that the existing

provisions remain RACT or where the

state submits a negative declaration.

States must also submit appropriate

supporting information for their RACT

submission as described in the Phase 2

Rule. See 70 FR 71652.

States should use current EPA

guidance and any other information

available in making RACT

determinations.38 The EPA recognizes

that existing CTGs and ACTs for many

source categories have not been revised

in a number of years. However, in most

cases, more recent technical information

is available in other forms, such as the

BACT/LAER Clearinghouse; SIPs for

other nonattainment areas, in particular

those areas with higher classifications;

applying RACT than the classification associated

with the 2008 ozone NAAQS.

37 May 18, 2006 memorandum from William T.

Harnett, Director, Air Quality Policy Division, to

Regional Air Division Directors, "RACT Qs & AsReasonable Available Control Technology (RACT):

Questions and Answers." 38 EPA's CTGs and ACTs are located at http://

www.epa.gov/air/ozonepollution/SIPToolkit/

ctgs.html.

the "Menu of Control Measures" for

NON and VOC; and emissions standards

developed under CAA section 111(d)

and NSR/prevention of significant

deterioration (PSD) settlement

agreements. As part of their RACT SIP

submission, states should provide

adequate documentation that they have

considered control technology that is

economically and technologically

feasible. The analysis of economic and

technological feasibility should be based

on information that is current as of the

time of development of the RACT SIP

for the 2008 ozone NAAQS. In other

words, it is not sufficient for states to

rely on previous RACT determinations

without considering more recent

information. Where public commenters

submit specific information to a state

about controls that are alleged to be

reasonably available in light of

technological and economic feasibility,

the state should consider such

information in developing its RACT SIP.

The EPA generally considers controls

that have been achieved in practice by

other existing sources in the same

source category to be technologically

and economically feasible. In some

cases, states may conclude that sources

already subject to RACT for the 1-hour

and/or 1997 ozone NAAQS are also

meeting the 2008 ozone NAAQS RACT

requirement.

The EPA's NON RACT guidance

(Nitrogen Oxides Supplement to the

General Preamble, 57 FR 55625;

November 25, 1992) encouraged states

to develop RACT programs that are

based on "area wide average emission

rates." Additional guidance on areawide RACT provisions is provided by

EPA's January 2001 economic incentive

program guidance titled, "Improving Air

Quality with Economic Incentive

Programs." 39 Thus, the EPA's existing

policy recognizes the approach of states

submitting a demonstration as part of

their NON RACT SIP submittal showing

that the weighted average NON emission

rate from sources in the nonattainment

area subject to RACT meets NON RACT

requirements.

As part of their RACT submission,

states have the option of demonstrating

that compliance with a regional trading

program by certain sources within a

nonattainment area will achieve RACTlevel reductions for those sources

within the nonattainment area. The

analysis would need to consider current

control technology and cost

effectiveness information as part of any

such demonstration, and to show that

the trading program achieves emission

39 http://www.epa.govlttnloarpg/t lmemorandal

eipfin.pdf.

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reductions greater than or equal to

reductions that would be achieved

through a source-specific application of

RACT in the nonattainment area.

In the preamble to the Phase 2 Rule,

the EPA explained that states could, in

certain circumstances, conclude that

sources (EGUs and some non-EGUs), in

compliance with the requirements of

regional trading programs established by

the NOx SIP Call and/or the Clean Air

Interstate Rule (CAIR), have met their

ozone NOx RACT requirements with

respect to the 1997 ozone standards. See

70 FR 71612, 71656-58. EPA

subsequently modified its guidance

regarding when compliance with CAIR

may satisfy NOx RACT requirements for

EGUs in CAIR states. See 72 FR 31727,

31730-37.

On July 10, 2009, in NRDC v. EPA, the

Court of Appeals for the DC Circuit

remanded the provision of the Phase 2

Rule determining that compliance with

the NOx SIP Call satisfies NOx RACT

because EPA had failed to show that

compliance with the NOx SIP Call

would achieve at least RACT-level

reductions in each nonattainment

area. 40 The court held that "[b]ecause

the EPA has not shown that the NOx SIP

call compliance will result in at least

RACT-level reductions in emissions

from sources within each nonattainment

area, the EPA's determination that

compliance with the NOx SIP call

satisfies the RACT requirement is

inconsistent with the "in the area"

requirement and thus violates the plain

text of [section] 172 (c)(1)." 41

Additionally, the court emphasized that

"the RACT requirement calls for

reductions in emissions from sources in

the area; reductions from sources

outside the nonattainment area do not

satisfy the requirement...

Accordingly, participation in the NOx

SIP call would constitute RACT only if

participation entailed at least RACTlevel reductions in emissions from

sources within the nonattainment area."

The EPA believes that the concerns

expressed by the court about the

agency's approach to the NOx RACT

requirement for sources, including

EGUs, and the emissions reductions

required by the NOx SIP Call raise

significant questions about the EPA's

approach to the comparable issues

related to compliance with the CAIR.

The EPA has not analyzed whether

participation in either the NOx SIP call

or CAIR would achieve reductions at

40 In view of its decision in North Carolina v.

EPA, in which the Court had previously remanded

the CAIR, the Court deferred consideration of the

litigant's challenge insofar as it related to the CAIR

program. 41 See NHDCv. EPA, 571 F.3d 1245.

least equivalent to what would be

achieved if RACT requirements were

applied on a source-specific basis in

nonattainment areas for the 2008 ozone

NAAQS. The analysis the EPA prepared

for the Phase 2 Rule addressed only

nonattainment areas for the 1997 ozone

NAAQS. Moreover, since sourcespecific control assumptions would

need to be developed in order to

determine the overall reduction level

achievable in a nonattainment area

through source-specific application of

RACT, the EPA believes states are in a

better position than EPA to conduct this

analysis.

The statute, as interpreted by the

court in NRDC v. EPA, provides that

RACT SIPs must demonstrate that

RACT-level emission reductions are

achieved within the relevant

nonattainment area. Thus, and for the

reasons explained above, it does not

allow states to, without providing such

demonstration, rely upon the

participation of a source in a regional

cap-and-trade program to satisfy RACT

requirements. However, as noted above,

states retain the option of demonstrating

that compliance with a regional trading

program by certain sources within a

nonattainment area, will achieve RACTlevel reductions for those sources

within the nonattainment area.

For clarity, we also note that a state

has discretion to require beyond-RACT

reductions from any source, and has an

obligation to demonstrate attainment as

expeditiously as practicable. Thus,

states may require VOC and NOx

reductions that are "beyond RACT" if

such reductions are needed in order to

provide for timely attainment of the

ozone NAAQS.

The EPA is soliciting comment on

modifying existing guidance to provide

additional flexibility in implementing

the section 182(b)(2) RACT

requirements. In some nonattainment

areas additional reductions of

anthropogenic VOC emissions have

been scientifically demonstrated to have

a limited impact on reducing ozone

concentrations. We are soliciting

comment on whether such a

demonstration is an appropriate factor

to consider in determining what is

"reasonable" in a RACT analysis. This

modification to existing guidance is

being explored in the spirit of the

Executive Order 13563 titled,

"Improving Regulation and Regulatory

Review," signed by President Barack

Obama on January 18, 2011, which

directs governmental agencies to offer

and support flexible, common sense

approaches. The EPA recognizes that

limited state and federal resources need

to be used where they will produce the

best environmental benefit, and that we

should attempt to accommodate air

quality management approaches that

will be a better use of public and private

resources and lead to more expeditious

attainment.

In some areas, additional VOC

reductions may be of little value in

further reducing ozone, and may be far

less effective than NOx reductions

(which may be quicker to implement

and lower cost). Under such

circumstances, the EPA is taking

comment on whether state RACT

determinations could take into

consideration, in the evaluation of what

is economically feasible, the potential

air quality benefit (or lack thereof) of

further VOC controls. Commenters

should discuss the specific

circumstances and limitations to which

an air quality benefit factor would

apply. For example, commenters should

address whether this approach would

(or can) be limited to cases where it can

be scientifically demonstrated that

additional VOC controls are ineffective

in reducing ambient ozone

concentrations. In addition, commenters

are encouraged to provide specific

examples of where modeling has

demonstrated that anthropogenic VOC

reductions have "negligible effect."

Commenters, if possible, should also

provide a defensible threshold for

defining "ineffective," and define a test

for concluding that the effect of

additional VOC reductions would be

"negligible." The EPA is also interested

in comments that address whether this

flexibility should be provided on an

individual source basis, or also on a

source category basis. Any approaches

suggested by commenters should also

address how public health and welfare

will be impacted. Finally, commenters

are encouraged to provide an

explanation as to the specific legal basis

for supporting the suggested approach.

For VOC sources subject to MACT

standards, our policy is to allow states

to streamline their RACT analysis by

including a discussion of the MACT

controls and considerations relevant to

VOC RACT. Historically, in many cases,

states have been able to rely on MACT

standards for purposes of showing that

a source has met VOC RACT. States

need to take care to ensure that any

MACT controls relied on for RACT

adequately address all VOCs and not

just those that are also HAPs. For

example, if a manufacturer complies

with MACT by reformulating products

to remove HAPs but the production

process still releases non-HAP VOCs,

the state would need to justify why the

MACT meets the RACT requirement for

that source or would need to develop an

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appropriate RACT rule to address nonHAP VOCs.

ii. Timing

We are proposing two alternatives for

when states would be required to

submit RACT SIPs. Under the first

alternative, states with Moderate and

higher classified areas would be

required to submit RACT SIPs within

the period specified in section 182(b)

with the time running from the effective

date of an area's designation for the

2008 ozone NAAQS (i.e., within 2 years

from the effective date of designation).

Under the second alternative, states

would be given the choice of submitting

RACT SIPs for Moderate and higher

classified areas either as part of a

consolidated SIP submittal 30 months

after the effective date of designation, or

within the period of time provided in

section 182(b), as described above. The

30-month option would align the

submission date for the RACT SIP with

the proposed submission date for other

SIP elements for the area's classification

in order to relieve states of the added

burden that can result from processing

different SIP elements at different times.

We are also proposing a specific

deadline by which RACT measures are

to be implemented for the 2008 ozone

NAAQS. Section 182(b)(2) requires

RACT measures to be implemented as

expeditiously as practicable, but no later

than May 31, 1995, which was 54 and

one-half months from the date of

enactment of the 1990 CAA

Amendments. This date was also near

the beginning of the ozone season for

many nonattainment areas at the time of

enactment, and ensured that RACT

measures were required to be in place

during most of the last two ozone

seasons before the Moderate area

attainment date of November 15, 1996.

For the 2008 ozone NAAQS, we are

proposing that areas must implement

RACT measures as expeditiously as

practicable, but no later than January 1

of the fifth year after the effective date

of a nonattainment designation.

Nonattainment designations for all areas

of the country were effective July 20,

2012. RACT measures for these areas

would be required to be implemented

by January 1, 2017. This allows a

comparable amount of time for sources

to meet RACT requirements as

originally anticipated under the 1990

CAA Amendments, and ensures that

RACT measures are required to be in

place throughout the last two ozone

seasons prior to the Moderate area

attainment date of December 31, 2018.

If we finalize the "state's choice"

approach for when SIP elements would

be due, those states which chose to

submit a consolidated SIP within 30

months of designation would have a

little longer to develop and submit their

RACT SIPs, but affected sources would

have a little less lead time to implement

the adopted requirements. Thus, any

emission reductions due to RACT

would not be delayed due to the slightly

later RACT SIP submission date. The

EPA believes this is a reasonable

interpretation of the statute in this case.

2. Reasonably Available Control

Measures (RACM)

The RACM requirement, which is set

forth in section 172(c)(1) of the CAA,

applies to all nonattainment areas that

are required to submit an attainment

demonstration. The EPA has issued

policies and procedures related to

RACM. Specifically, the EPA has issued

guidance that interprets the RACM

provision to require a demonstration

that the state has adopted all reasonable

measures (including RACT) to meet RFP

requirements and to demonstrate

attainment as expeditiously as

practicable and thus that no additional

measures that are reasonably available

will advance the attainment date or

contribute to RFP for the area.42 43 44 We

believe that this guidance should

continue to apply for purposes of the

2008 ozone NAAQS.

The determination of whether a SIP

contains all RACM requires an areaspecific analysis that there are no

additional economically and

technologically feasible control

measures (alone or cumulatively) that

will advance the attainment date. 45 The

EPA's RACM policy, as outlined in the

April 16, 1992, General Preamble,

indicates that states should consider all

candidate measures that are potentially

available for the particular

nonattainment area that could advance

the attainment date by 1 year. 46 The

42 "State Implementation Plans; General Preamble

for Proposed Rulemaking on Approval of Plan

Revisions for Nonattainment Areas" 44 FR 20372 at

20375 (April 4, 1979). "State Implementation Plans;

General Preamble for the Implementation of Title I

of the Clean Air Act Amendments of 1990;

Proposed Rule." 57 FR 13498 at 13560 (April 16,

1992).

43 "Guidance on the Reasonably Available

Control Measures (RACM) Requirement and

Attainment Demonstration Submissions for Ozone

Nonattainment Areas." John S. Seitz, Director,

Office of Air Quality Planning and Standards.

November 30, 1999. www.epa.gov/ttn/oarpg/tl/

memoranda/revracm.pdf.

44 Memorandum of December 14, 2000, from John

S. Seitz, Director, Office of Air Quality Planning

and Standards, re: "Additional Submission on

RACM from States with Severe One-Hour Ozone

Nonattainment Area SIPs." www.epa.gov/ttn/oarpg/

ti/memoranda/121400 racmmemfin.pdf.

45Ibid.

46 "State Implementation Plans; General Preamble

for the Implementation of Title I of the Clean Air

April 16, 1992, General Preamble 47 also

provides that "any measure that a

commenter indicates during a public

comment period is reasonably available

should be closely reviewed by the

planning agency to determine if it is in

fact reasonably available for

implementation in the area in light of

local circumstances." Although states

should consider all available measures,

including those being implemented in

other areas, a state must adopt measures

for an area only if those measures are

economically and technologically

feasible and will advance the attainment

date or are necessary for RFP. This

interpretation of the section 172

requirements has been upheld by

several courts. See, e.g., Sierra Club v.

EPA, et al., 294 F.3d 155 (D.C. Circuit,

2002).

E. Does the 2008 ozone NAAQS result

in any new inspection and maintenance

(I/M) programs?

No new I/M programs are currently

required as a result of areas being

designated and classified nonattainment

for the 2008 ozone NAAQS. The

applicable requirements for ozone

nonattainment areas that are required to

adopt I/M programs are described in

sections 182(a)(2)(B), 182(b)(4),

182(c)(3), and 184(b)(1)(A) of the CAA

and further defined in section 51.350

("Applicability") of the I/M rule (40

CFR part 51, subpart S). Under these

cumulative requirements, Moderate

ozone nonattainment areas in urbanized

areas with 1990 Census populations of

200,000 or more are required to adopt

basic I/M programs, while Serious and

higher classified ozone nonattainment

areas outside of the northeast OTR with

1980 Census-defined urbanized

populations of 200,000 or more are

required to adopt enhanced I/M

programs. Within the OTR, MSAs with

populations of 100,000 or more are

required to adopt enhanced I/M

programs, regardless of attainment

status. Currently, all the nonattainment

areas meeting the criteria for mandatory

I/M under the 2008 ozone NAAQS are

already operating I/M programs due to

being designated nonattainment and

classified as Moderate or above under

an earlier ozone standard. If a Marginal

2008 ozone nonattainment area meeting

the population cutoff for mandatory I/M

is ever in the future reclassified to

Moderate or a higher classification, then

an I/M program meeting the SIP

Act Amendments of 1990; Proposed Rule." 57 FR

13507 (April 16, 1992). The discussion of RACM in

that document contains other relevant history

concerning the RACM requirement.

47 57 FR 13498.

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submittal and program implementation

requirements of the I/M rule would be

required at that time.

1. If new I/M programs are required in

the future, what are the SIP and

implementation requirements?

On April 7, 2006, the EPA finalized a

suite of revisions to the I/M rule (71 FR

17705) to address the implementation of

I/M under an 8-hour ozone NAAQS.

The revised rule included deadlines for

8-hour nonattainment areas that were

tied to the effective date of a given area's

designation and classification under the

8-hour ozone NAAQS. Specifically, the

April 2006 rulemaking established a

deadline for submission of an I/M SIP

no later than one year after the effective

date of the area's nonattainment

designation and classification for the 8-

hour ozone standard. This rule was

originally applied for purposes of the

1997 8-hour NAAQS, but it remains

applicable to the 2008 8-hour NAAQS.

In addition to establishing the I/M SIP

submittal schedule, the April 2006

rulemaking also set a deadline of no

later than 4 years after the effective date

of designation and classification by

which the I/M program in question

would actually begin testing vehicles.

2. Should the EPA allow more time for

states to submit future I/M SIPs?

Since the 2006 I/M rulemaking, the

EPA has revisited the question of how

much time it takes to submit an I/M SIP

based upon the degree to which the

modeling work needed to demonstrate

attainment is closely linked to the

modeling work required to design an

I/M program that meets the area's

attainment needs. Put simply, areas

need to determine together the amount

of emissions reductions needed for

attainment and the amount of emissions

reductions to get from different sectors

and strategies (including I/M), before

designing an I/M program capable of

achieving the necessary reductions to

demonstrate attainment. Requiring

submittal of an I/M program in advance

of an attainment demonstration for the

current or future ozone standard could

result in significant unnecessary work

on modeling, SIP revisions, and

implementation, if revisions to the I/M

program are later deemed necessary.

Because control strategy decisions

and the modeling needed to perform the

attainment demonstration are

intertwined with decisions and

modeling needed to design the local

I/M program to such a high extent, the

EPA is requesting comment on its

proposal to align deadlines for the

attainment SIP and the I/M SIP so that

both are due at the same time. 48

Commenters are asked to take the

following factors into consideration

when providing comments on this

portion of the proposed rulemaking:

Areas' need to analyze various I/M

program designs to determine which

combination of program parameters is

capable of meeting the emission

reduction needs of the attainment SIP;

the need to secure legal authority when

some of the potentially affected state

legislatures may only meet for 2-4

months during any given legislative

session; the time needed to promulgate

a regulation; and the impact on timing

of other, potentially competing resource

demands that will be placed on states as

a result of the need to meet current and/

or future ozone standards.

3. How is modern I/M different from the

last time new I/M programs were

required?

It is important to note that much has

changed since I/M programs were

required under the original, November

5, 1992, I/M Rule. At that time, an I/M

program would have included testing a

vehicle's tailpipe emissions, in some

cases using a treadmill-like device

(dynamometer), so that the emissions

were measured under more realistic

driving conditions rather than at rest

(idle). Dynamometer-based tests also

allowed for measurement of NOx

emissions, which was not possible at

idle. The equipment needed for these

types of programs was expensive

compared to today's next-generation

alternatives and the test itself was time

consuming as the vehicle needed to be

secured to the dynamometer and then

driven through the test cycle.

Beginning with the 1996 model year,

vehicles have been equipped with a

computerized system known as onboard

diagnostics or OBD. The OBD system

monitors the vehicle's emission control

system continuously and illuminates

the vehicle's dashboard "Check Engine"

light if a problem is detected. The

vehicle's computer stores information

on the type of malfunction detected, and

is therefore able to provide repair shops

with information on the type of repair

that is needed. The EPA estimates that

about 80 percent of the national vehicle

fleet is already equipped with an OBD

system and that by the time any

potential new I/M programs would be

required to begin operation, about 90

percent of the national vehicle fleet will

48 As discussed in section III.A of today's

proposal, the EPA is soliciting comment on

alternative deadlines for attainment SIP

submissions. The EPA is here soliciting comment

on aligning the deadline for I/M submittal with

those alternative deadlines.

be OBD equipped. As a result, the EPA

believes that I/M programs will no

longer need to use tailpipe testing, and

can instead rely on a simple, fast and

inexpensive interrogation of the OBD

system.

There are many ways to conduct OBD

system checks but all involve a

relatively inexpensive scanner. The

scanner is connected to a port in the

vehicle and the tool downloads

information from the vehicle's

computer. This type of testing can be

done either in a centralized testing

facility, directly at a repair shop, or even

remotely using telematics technology.

Compared to earlier vehicle test

methods, next-generation I/M testing

through OBD system checks is

substantially quicker, less invasive, less

costly to implement and ideally suited

to innovative testing strategies such as

remote inspections using cellular or

telematic technologies, self-serve testing

kiosks and even mail-in data loggers,

none of which were practical under the

previous generation of tailpipe tests and

all of which are available for use in

today's and future I/M programs.

The EPA believes that OBD

technology can change not only the way

vehicles are tested but also whether

vehicles need to be independently

tested at all. This is because OBD offers

vehicle owners all the information they

need regarding whether or not their

vehicle will pass or fail an I/M

inspection. Simply put, if the "Check

Engine" light is on, the vehicle will fail.

This capability of OBD to provide

immediate driver feedback suggests

some as-yet untested but nevertheless

intriguing alternatives to traditional I/M.

One such alternative-the EPA

believes-would include programs that

offer some vehicle owners free or

subsidized repairs of vehicles with lit

"Check Engine" lights. Should such a

program result in the same number of

vehicles being repaired as would be the

case in a traditional I/M program, then

the program in question would be

considered functionally equivalent to

I/M. The choice of how to fund these

repairs would rest with the state but

could include collecting a fee equivalent

to what would otherwise be charged for

testing from all registrants, requiring

vehicle insurance providers or a state to

cover the cost of repairing the vehicle

when the "Check Engine" light comes

on, partnering with local vocationaltechnical schools to provide repair

services, making driving with a lit

"Check Engine" light on a secondary

traffic offense (similar to driving

without a seat belt or working

headlights in some states), etc.

Ultimately, program equivalency would

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not depend upon how repairs are

funded but rather on the number of

relevant repairs accomplished by the

program. Similarly, programs that

accelerate the retirement of vehicles in

need of emission-related repairs or that

significantly prompt older vehicles to be

replaced by cleaner technology could be

considered equivalent to I/M if the

amount of emission reductions achieved

equals or exceeds what would be

achieved by a traditional enhanced I/M

program.

The EPA is requesting comments on

these or other ideas for "right sizing"

I/M for the current and future fleet.

Comments should address how

proposals will meet the minimum

statutory requirements for I/M while

still achieving I/M's primary goal of

reducing emissions from the fleet in-use

and supporting vehicle maintenance

and emission repair.

F. How does transportation conformity

apply to the 2008 ozone NAAQS?

1. What is transportation conformity?

Transportation conformity is required

under CAA section 176(c) to ensure that

transportation plans, transportation

improvement programs (TIPs) and

federally supported highway and transit

projects are consistent with ("conform

to") the purpose of the SIP. Conformity

to the purpose of the SIP means that

transportation activities will not cause

new air quality violations, worsen

existing violations, or delay timely

attainment of the relevant NAAQS or

interim reductions and milestones.

Transportation conformity applies to

areas that are designated nonattainment,

and to those former nonattainment areas

that have been redesignated to

attainment since 1990 and have a CAA

section 175A maintenance plan

("maintenance areas") for

transportation-related criteria

pollutants: Carbon monoxide, ozone,

nitrogen dioxide, and particulate matter.

The EPA's Transportation Conformity

Rule (40 CFR 51.390 and Part 93,

subpart A) establishes the criteria and

procedures for determining whether

transportation activities conform to the

SIP. The EPA first promulgated the

Transportation Conformity Rule on

November 24, 1993 (58 FR 62188), and

subsequently published several

amendments. For example, the EPA

published a final rule on July 1, 2004

(69 FR 40004) that provided

transportation conformity procedures

for state and local agencies under the

1997 ozone NAAQS, among other

things. For further information on

transportation conformity rulemakings,

policy guidance and outreach materials,

see the EPA's Web site at http://

www.epa.gov/otaq/stateresources/

transconf/in dex.h tin.

2. Why is the EPA discussing

transportation conformity in this

proposed rulemaking?

We are discussing transportation

conformity in this proposed rulemaking

in order to provide affected parties with

information on when transportation

conformity must be implemented for the

2008 ozone NAAQS and how we plan

to make the transition from the 1997

ozone NAAQS to the 2008 ozone

NAAQS with respect to transportation

conformity. Affected parties would

include state and local transportation

and air quality agencies, metropolitan

planning organizations (MPOs) and the

U.S. Department of Transportation (the

DOT) (40 CFR 93.102).

3. When would transportation

conformity apply to areas designated

nonattainment for the 2008 ozone

NAAQS?

Transportation conformity for the

2008 ozone NAAQS applies 1 year after

the effective date of nonattainment

designations for that standard. This is

because CAA section 176(c)(6) and 40

CFR 93.102(d) provide a 1-year grace

period from the effective date of initial

designations before transportation

conformity applies in areas newly

designated nonattainment for a

particular pollutant and standard.

4. How would the 1-year transportation

conformity grace period apply?

The transportation conformity grace

period applies to all areas designated

nonattainment for the 2008 ozone

NAAQS. Metropolitan areas are

urbanized areas that have a population

greater than 50,000 and a designated

MPO responsible for transportation

planning per 23 U.S.C. 134. In general,

within 1 year after the effective date of

the initial nonattainment designation for

a given pollutant and standard, the

area's MPO and the DOT must make a

conformity determination with regard to

that pollutant and standard for the

area's transportation plan and TIP. The

conformity requirements for donut

areas, 49 including the application of the

1-year conformity grace period, are

generally the same as those for

metropolitan areas. MPOs and any

adjacent donut areas must continue to

meet conformity requirements in

nonattainment and maintenance areas

49 For the purposes of transportation conformity,

a "donut" area is the geographic area outside a

metropolitan planning area boundary, but inside a

designated nonattainment or maintenance area

boundary that includes an MPO (40 CFR 93.101).

for the 1997 ozone NAAQS during the

grace period, in addition to any other

applicable standards. If, at the end of

the grace period, the MPO and the DOT

have not made a transportation plan and

TIP conformity determination for the

relevant pollutant and standard, the area

would be in a conformity "lapse."

During a conformity lapse, only certain

projects can receive additional federal

funding or approvals to proceed. The

practical impact of a conformity lapse

will vary from area to area.

Isolated rural nonattainment and

maintenance areas are areas that do not

contain or are not part of an MPO (40

CFR 93.101). Conformity requirements

for isolated rural nonattainment and

maintenance areas can be found at 40

CFR 93.109(g). An isolated rural area

would be required to make a conformity

determination only at the point when a

new transportation project needs

funding or approval. This point may

occur significantly after the 1-year grace

period has ended. See the EPA's July 1,

2004, final rule for further background

on how the EPA has implemented this

conformity grace period for the 1997

ozone NAAQS in metropolitan, donut

and isolated rural areas (69 FR 40008-

40014). 50

5. What flexibilities exist for isolated

rural areas?

As discussed previously in this

proposal, for transportation conformity

purposes, isolated rural nonattainment

and maintenance areas are areas that do

not contain or are not part of an MPO

(40 CFR 93.101). In general, ozone

nonattainment and maintenance areas

with populations of less than 50,000

would be considered to be isolated rural

areas for transportation conformity

purposes because the DOT only requires

an MPO to be established when an

area's population exceeds 50,000.

The Transportation Conformity Rule

contains a number of flexibilities that

apply to isolated rural areas. As

discussed previously, they are not

required to determine conformity by the

end of the 1-year grace period that

applies for new nonattainment areas,

since isolated rural areas do not have

MPOs and do not have transportation

plans that are subject to the

requirements to demonstrate conformity

on a periodic basis. Isolated rural areas

are only required to demonstrate

conformity when a non-exempt Federal

Highway Administration or Federal

50 Also, see the EPA's transportation conformity

Web site for more information, including EPA's

"Transportation Conformity Guidance for 2008

Ozone NAAQS Nonattainment Areas" at:

www.epa.gov/otaq/statesresources/transconf/

2008naaqs.htm.

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Transit Administration project in the

nonattainment or maintenance area

requires funding or approval.

Experience has shown that isolated

rural areas have few projects that

require a transportation conformity

determination. Another available

flexibility is that isolated rural areas

may choose from several alternative

conformity tests that may be used for

analysis years beyond the last year for

which the SIP has established a motor

vehicle emissions budget. These

alternative tests are described in 40 CFR

93.109(g)(2)(ii)(A)-(C). We also note that

since these areas do not have

transportation plans or TIPs, they would

never experience a conformity lapse.

6. Does transportation conformity apply

for the 1997 ozone NAAQS once that

standard is revoked?

The CAA only requires transportation

conformity in areas that are designated

nonattainment or maintenance for a

given pollutant and standard. Therefore,

transportation conformity would no

longer apply for purposes of the 1997

ozone NAAQS as of the time that

standard (and thus an area's designation

for that standard) is revoked. In other

words, existing 1997 ozone NAAQS

nonattainment and maintenance areas,

regardless of their designation for the

2008 ozone NAAQS, would no longer be

required to demonstrate transportation

conformity for the 1997 ozone NAAQS

after the 1997 ozone NAAQS is revoked.

The EPA revoked the 1997 ozone

NAAQS for transportation conformity

purposes in the Classifications Rule for

the 2008 ozone NAAQS. The revocation

will become effective on July 20, 2013,

1 year after the effective date of

designations for the 2008 ozone

NAAQS. Under our current

Transportation Conformity Rule, the

latest approved or adequate emission

budgets for a previous ozone NAAQS

(i.e., the 1997 or the 1-hour ozone

NAAQS) would continue to be used in

conformity determinations for the 2008

ozone NAAQS until emission budgets

are established and found adequate or

are approved for the 2008 ozone

NAAQS. 77 FR 14981-2.

7. What impact will the implementation

of the 2008 ozone NAAQS have on a

state's Transportation Conformity SIP?

Since we are not proposing to make

revisions to our Transportation

Conformity Rule in this proposal, states

with previously approved

Transportation Conformity SIPs should

not need to revise those SIPs, unless

they need to do so to ensure that

existing state regulations apply in the

appropriate newly designated areas.

However, if this is the first time that

transportation conformity will apply in

a state, such a state is required to submit

a SIP revision that covers the three

specific transportation conformity

requirements that are delineated in CAA

section 176(c)(4)(E). These specific

requirements are consultation

procedures and written commitments to

control or mitigation measures

associated with conformity

determinations for transportation plans,

TIPs or projects. 40 CFR 51.390.

Additional information and guidance

can be found in EPA's "Guidance for

Developing Transportation Conformity

State Implementation Plans" (http://

www.epa.gov/otaq/stateresources/

transconf/policy/420b09001 .pdj).

G. What requirements for general

conformity apply to the 2008 ozone

NAAQS?

1. What is the purpose of the general

conformity regulations?

Section 176(c) of the CAA requires

that before a federal entity takes an

action affecting air quality in a state, it

must make a determination that the

proposed action will not interfere with

the SIP or the state's ability to attain and

maintain the NAAQS. In November

1993, the EPA promulgated two sets of

regulations to implement section 176(c).

One set, known as the Transportation

Conformity Rules (described previously

in this proposal), deals with approval

and funding of highway and mass

transit projects. The other set, known as

the General Conformity Regulations,

deals with all other federal activities.

Besides ensuring that federal actions

will not interfere with the SIP, the

general conformity program also fosters

communications between federal

agencies and state/local air quality

agencies, provides for public

notification of and access to federal

agency conformity determinations and

allows for air quality review of

individual federal actions. In 1995,

Congress limited the application of

section 176(c) to nonattainment and

maintenance areas only.

2. How are federal actions in

nonattainment or maintenance areas

addressed?

Federal agencies must demonstrate

that their new actions occurring in a

nonattainment or maintenance area will

conform with the SIP by showing they

will not (1) cause or contribute to any

new violation of any standard in

respective nonattainment and

maintenance areas; (2) interfere with

provisions in the applicable SIP for

maintenance of any standard; (3)

increase the frequency or severity of any

existing violation of any standard; or (4)

delay timely attainment of any standard

or any required interim emissions

reductions or other milestone.

Information on what federal actions are

covered and how to demonstrate

conformity are found in 40 CFR part 93

subpart B. On March 24, 2010, former

Administrator Lisa P. Jackson signed the

General Conformity Final Rule

"Revisions to the General Conformity

Regulations," which was published

April 5, 2010 (75 FR 17254-17279).

More information on the general

conformity program is available at

http://www.epa.gov/air/genconform/.

3. General Conformity for the 2008

Ozone NAAQS

a. What de minimis emission levels will

apply for ozone precursors?

For the ozone precursors VOC and

NOx, the existing de minimis emission

levels that are set forth in the EPA's

General Conformity Regulations at 40

CFR 93.153(b)(1) continue to apply to

the 2008 ozone NAAQS. Those levels

were based on the definition of a major

stationary source for NSR programs as

established by sections 182, 183 and 302

of the CAA. Federal actions estimated to

have an annual net emissions increase

less than the de minimis levels are not

required to demonstrate conformity

under the General Conformity

Regulations. The current de minimis

levels are identified in Table 1.

TABLE 1-De Minimis EMISSION LEVELS FOR VOC AND NOx

Type of ozone area Typ ofozoe aeatons/year VOC tons/year NOx

Extrem e Nonattainm ent ................................................................................................................................................... 10 10

Severe Nonattainm ent ..................................................................................................................................................... 25 25

Serious Nonattainm ent .................................................................................................................................................... 50 50

Other ozone Nonattainm ent areas outside an ozone transport region ........................................................................... 100 100

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TABLE 1-De Minimis EMISSION LEVELS FOR VOC AND NOx-Continued

Type of ozone area VOC NOx

tons/year tons/year

Other ozone Nonattainment areas inside an ozone transport region ............................................................................. 50 100

b. What impact will implementation of

the 2008 ozone NAAQS have on a

state's General Conformity SIP?

We are not proposing to make

revisions to our General Conformity

Regulations in this proposal. States with

approved General Conformity SIPs

should not need to revise those SIPs,

unless they need to do so to ensure the

existing regulations apply in the

appropriate newly designated areas.

c. Are there any other impacts related to

general conformity based on

implementation of the 2008 ozone

NAAQS?

As noted above, we are not proposing

any revisions to the General Conformity

Regulations at this time. However, as

areas develop SIPs for the 2008 ozone

NAAQS, we recommend that state and

local air quality agencies work with

federal agencies with major facilities

that are subject to the General

Conformity Regulations (e.g.,

commercial airports, ports and large

military bases) to establish an emission

budget for those facilities in order to

facilitate future conformity

determinations. Such a budget could be

used by federal agencies in determining

conformity or identifying mitigation

measures if the budget level is included

and identified in the SIP.

One federal activity subject to general

conformity requirements is prescribed

burning. The EPA recognizes that

prescribed fire in some instances must

be employed for natural resource

management purposes and prevention

or control of wildfires. The use of

prescribed fire presents federal agencies,

states and tribes with the challenge to

balance and integrate two public policy

goals, (1) to allow fire to function, as

nearly as possible, in its natural role in

maintaining healthy wildland

ecosystems; and (2) to protect public

health and welfare by mitigating the

impacts of air pollutant emissions on air

quality. The EPA encourages states and

tribes to work with federal agencies to

develop Smoke Management Programs

(SMPs) and use Basic Smoke

Management Practices (BSMPs) that

identify the responsibilities of Federal

Land Managers and state/tribal air

quality managers to coordinate fire

activities, minimize air pollutant

emissions, manage smoke from

prescribed fires for resource benefits,

ensure the safety of burners and those

in the forest/urban interface and

establish emergency action programs to

mitigate the impacts on the public. To

reduce administrative burden on federal

agencies, the EPA's April 5, 2010

revisions, to its General Conformity

Regulations (75 FR 17254) provided

flexibilities in 40 CFR 93.153(h) and (i)

for prescribed fires to meet general

conformity requirements using SMPs

and BSMP.

4. When would general conformity

apply to areas designated nonattainment

for the 2008 ozone NAAQS?

General conformity for the 2008 ozone

NAAQS applies 1 year after the effective

date of nonattainment designations for

that standard. This is because CAA

section 176(c)(6) (which applies to

general conformity as well as to

transportation conformity) provides a 1-

year grace period from the effective date

of initial designations before general

conformity determinations are required

in areas newly designated

nonattainment for a particular pollutant

and standard.

5. How does the 1-year grace period

apply to general conformity

determinations?

As discussed previously in this

proposal, CAA section 176(c)(6) applies

to both transportation and general

conformity. Therefore, the EPA's April

2010 revisions to its the General

Conformity Regulations (see 75 FR

17277, April 5, 2010) apply the grace

period for the purposes of general

conformity in the same manner as for

transportation conformity.

6. How would the revocation of the

1997 ozone NAAQS affect general

conformity requirements?

Our proposal to revoke the 1997

ozone NAAQS at the time the final SIP

Requirements Rule is published in the

Federal Register means that general

conformity requirements under the 1997

ozone NAAQS would end after the 2008

ozone NAAQS general conformity

requirements begin.

H. What are the requirements for

contingency measures in the event of

failure to meet a milestone or to attain?

1. Background

Contingency measures are additional

emissions control measures states must

implement in the event a nonattainment

area fails to meet an RFP milestone or

fails to attain by its attainment date.

Under the CAA, nonattainment areas

that are classified under subpart 2 of

part D of title I as Moderate, Serious,

Severe or Extreme must include in their

SIPs contingency measures consistent

with section 172(c)(9), and those

classified as Severe or higher must

include contingency measures that are

also consistent with section 182(c)(9).

These contingency measures must be

fully adopted rules or measures that are

ready for implementation quickly upon

failure to meet milestones or attain. Per

EPA guidance, 51 these measures should

represent 1 year's worth of reductions,

or approximately 3 percent of the

baseline emissions inventory. For

additional background information on

contingency measures, see 68 FR 32802

(June 3, 2003) and 70 FR 71650

(November 29, 2005) (the proposed and

final Phase 2 Rule).

Guidance developed by the EPA in

1993 specified the content of the

contingency measures. This guidance

indicated that for areas classified

Moderate and higher that had

completed the initial 15 percent VOC

reductions, contingency measures could

be a mixture of VOC and NOx

reductions. The guidance indicated that

of the 3 percent emissions reductions

required, 0.3 percent had to be VOC

emissions reductions, allowing the

remaining 2.7 percent of emissions

reductions to be NOx emissions

reductions.

2. Proposal

The EPA is proposing to interpret the

contingency measure requirement for

the 2008 ozone NAAQS in the same

manner it has interpreted that

requirement for the 1-hour and 1997

ozone NAAQS, with the exception of

the content of the contingency

51 August 23, 1993 memorandum from Michael H.

Shapiro, Acting Assistant Administrator for Air and

Radiation, to Regional Air Directors, "Guidance on

Issues Related to 15 Percent Rate-of-Progress

Plans."

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measures, as discussed below. The EPA

is proposing that the contingency

measures required for Moderate and

above areas under CAA sections

172(c)(9) and 182(c)(9) must provide for

the implementation of specific measures

if the area fails to meet any applicable

milestone. These measures must be

submitted for approval into the SIP as

adopted measures that would take effect

without further rulemaking action by

the state or the Administrator upon a

determination that an area failed to

attain or meet the applicable milestone.

Contingency measures should represent

1 year's worth of progress for the

nonattainment area, which would be

achieved while the area is revising its

plan. Where appropriate, federal

measures providing ongoing reductions

into the future can be used as

contingency measures. Innovative

measures such as energy efficiency

programs or renewable energy programs

that meet the requirements of CAA

section 172(c)(9), as well as section

182(c)(9) for areas classified as Serious

or higher, can also be used as

contingency measures.

Regarding content of the 1 year's

worth of emissions covered by the

contingency measures, the EPA believes

that prior contingency measure

guidance specifying a minimum of 0.3

percent of the emission reductions (i.e.,

one-tenth of the total 3 percent emission

reduction requirement) must be from

VOCs is no longer necessary. The EPA

is proposing that for Moderate and

above areas that have completed the

initial 15 percent VOC reduction

required by CAA section 182(b)(1)(A)(i),

the 3 percent emissions reductions of

the contingency measures may be based

entirely on NOx controls if that is what

the state's analyses have demonstrated

would be most effective in bringing the

area into attainment. There is no

minimum VOC requirement.

We are soliciting comment on a

contingency measure issue for

nonattainment areas classified as

Extreme, based on past state experience

developing control plans for Extreme

areas. The CAA in section 182(e)(5)

allows the EPA to approve an Extreme

area attainment plan that relies, in part,

on the future development of new

control technologies or improvements of

existing control technologies. This

discretion is available as long as the

state has demonstrated that: all

reasonably available control measures,

including RACT, have been included in

the plan; the area's RFP demonstration

during the first 10 years after

designation does not rely on anticipated

future technologies; and the state has

submitted enforceable commitments to

develop and adopt contingency

measures in the event that anticipated

future technologies do not achieve

planned reductions.

If an Extreme area qualifies for the

discretion authorized by section

182(e)(5), it could be argued that it is

unreasonable to expect the state to

provide for the contingency measures

required by sections 172(c)(9) and

182(c)(9). Indeed, it is hard to know

how an area whose attainment SIP can

include measures that are not fully

developed would be able to identify

contingency measures that are more

specific. And while the CAA does not

limit these measures to "feasible"

measures, we do not believe that such

areas should be required to adopt

unreasonable or draconian measures

when all reasonable candidate

contingency measures will already have

been employed in the plan to meet the

RACM and RFP requirements. In this

case it could be argued that the section

182(e)(5) contingency measure

provision is the only reasonable way to

meet the section 172(c)(9) and 182(c)(9)

contingency measure requirements.

Accordingly, the EPA is soliciting

comments on how Extreme areas that

can demonstrate they have implemented

all feasible measures for purposes of

their RFP SIPs and their RACM analyses

can legally address CAA contingency

measure requirements.

3. Additional Guidance for States That

Use a Federal Measure as a Contingency

Measure

The EPA has a long-standing practice

of allowing federal measures to be used

as contingency measures as long as they

provide emissions reductions in the

relevant years in excess of those needed

for attainment or RFP. The EPA has

interpreted this policy as applying to

federal measures that have already been

adopted, which would include

emissions reductions from fleet turnover

to lower emitting on-road vehicles and

non-road equipment such as on-road

vehicles certified to Tier 2 light-duty

vehicle emission standards. 52 The EPA

has approved the use of federal

measures to meet contingency measure

52 Fleet turnover is the change in model year

composition of the local motor vehicle fleet. The

composition of the motor vehicle fleet changes as

new vehicles enter the fleet and old vehicles are

removed. Generally, this results in a decrease in

fleet average NOx and VOC emissions each year as

older model year vehicles certified to less stringent

emission standards leave the fleet and are replaced

by newer vehicles certified to more stringent

standards. The emission impacts of fleet turnover

outside of California are currently calculated using

EPA's MOVES emission factor model. 75 FR 9411,

March 2, 2010. in California these emissions

impacts are currently calculated using EMFAC2007.

requirements in several EPA actions

approving 1-hour and 8-hour ozone

SIPs. (62 FR 15844, April 3, 1997), (62

FR 66279, December 18, 1997), (66 FR

30811, June 8, 2001), (66 FR 586 and 66

FR 634, January 3, 2001) (74 FR 1903,

January 14, 2009). We plan to continue

to allow areas to use future reductions

from promulgated federal measures as

contingency measures for the 2008

ozone NAAQS, consistent with our

practice for both the 1-hour and 1997

ozone NAAQS.

States using on-road motor vehicle

fleet turnover as a contingency measure

should establish and submit, as part of

the SIP containing the contingency

measure, motor vehicle emissions

budgets (MVEBs) consistent with the

use of on-road fleet turnover as a

contingency measure. Such budgets

would help to ensure that the emissions

reductions attributed to the on-road fleet

turnover contingency measure are

actually available in the event that the

contingency measure is triggered and

would be available to serve the purpose

intended by the SIP. For example, if an

area is required to attain the 2008 ozone

NAAQS in 2018 and the SIP includes

VOC and NOx emissions reductions

resulting from on-road fleet turnover as

a contingency measure in the event that

the area fails to attain by 2018, the SIP

for that area should include VOC and

NOx MVEBs for 2019 (the year after the

attainment date) that are consistent with

the use of the on-road fleet turnover

contingency measure. Having such

budgets would help to ensure that

reductions from a fleet turnover

contingency measure would be surplus

and available for the SIP in the event

that contingency measures are triggered.

L How do the NSR requirements apply

for the 2008 ozone NAAQS?

1. NSR Requirements for the 2008

Ozone NAAQS

The NSR programs contained in parts

C and D of title I of the CAA are

preconstruction review and permitting

programs applicable to new or modified

major stationary sources of air

pollutants regulated under the CAA. In

attainment and unclassifiable areas

outside the OTR, the requirements

under part C apply under the PSD

program. In nonattainment areas and

throughout the OTR, the program is

implemented under the requirements of

part D, under the nonattainment NSR

program. Collectively, we commonly

refer to the PSD and nonattainment NSR

programs together as the "major NSR

programs."

The regulations for the major NSR

programs are contained in 40 CFR

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51.166 and 52.21 for PSD, and 51.165,

52.24 and part 51, Appendix S for

nonattainment NSR. Among other

things, in unclassifiable and attainment

areas outside of the OTR, the PSD

program requires a new major source, or

a major modification to an existing

source, to install best available control

technology (BACT) and conduct an air

quality impact analysis, including an

analysis of potential impacts on Class I

areas (see CAA sections 162, 165(a)(3),

165(a)(4), 165(a)(5) and 165(d)).

Section 165(a)(3) of the CAA provides

that in order to obtain a PSD permit the

owner or operator of a proposed facility

must, among other things, demonstrate

that "emissions from construction or

operation of such facility will not cause,

or contribute to, air pollution in excess

of any . . . national ambient air quality

standard in any air control region." The

EPA has generally interpreted this

requirement to include any NAAQS that

is in effect at the time a permit is

issued. 53 See, e.g., 73 FR 28321, 28324,

28340 (May 16, 2008); Memorandum

from Stephen D. Page, Director, Office of

Air Quality Planning & Standards,

"Applicability of the Federal Prevention

of Significant Deterioration Permit

Requirements to New and Revised

National Ambient Air Quality

Standards" (April 1, 2010). Accordingly,

since the May 27, 2008, effective date of

the 2008 ozone NAAQS, permit

applications for new major stationary

sources and major modifications have

been subjected to the PSD program

requirements for ozone under two sets

of circumstances: first, prior to the

designation of areas based on the 2008

ozone NAAQS, sources locating in areas

designated attainment or unclassifiable

for the 1997 ozone NAAQS; and second,

on and after the July 20, 2012 effective

date of area designations for the 2008

ozone NAAQS, sources locating in areas

designated as attainment or

unclassifiable for both the 1997 and

2008 ozone NAAQS. In all cases, the

permit applicants must, among other

things, demonstrate that the proposed

project's emissions increase will not

cause or contribute to a violation of the

2008 ozone NAAQS.

For purposes of determining

individual source impacts with respect

to the 2008 ozone NAAQS, PSD permit

applicants and permitting authorities

53 However, the EPA has also recognized that it

has discretion to grandfather, under appropriate

circumstances, permit applications that are pending

at the time a new or revised NAAQS comes into

effect from the requirement to demonstrate that a

major new source or modification does not cause

or contribute to a violation of a new or revised

NAAQS. Since the NAAQS has been in effect since

2008, the EPA does not believe any grandfathering

is necessary and proposes no such action here.

should continue to follow the current

practice described in Appendix W to 40

CFR part 51, which is to consult with

the applicable EPA regional office to

determine the appropriate means of

addressing such impacts. 40 CFR part

51, App. W, § 5.2.1(c). Although those

applicants must demonstrate that the

proposed source or modification will

not cause or contribute to a violation of

the 2008 ozone NAAQS, that

demonstration does not necessarily

require the permit applicants to perform

new air quality modeling. See 40 CFR

51.166(k)(1) and 52.21(k)(1) (requiring

source impact analysis); see also 40 CFR

part 51, App. W, § 5.2.1(c) (explaining

that the choice of methods to assess the

impact of an individual source on the

ozone NAAQS depends on the nature of

the source and its emissions, and that

appropriate methods are determined in

consultation with the EPA regional

office on a case-by-case basis). As

appropriate, after consultation with the

applicable EPA regional office, the

demonstration can be made using

modeling performed previously for air

quality planning purposes or with other

forms of qualitative or quantitative

analysis, as has generally been the case

in past permits. The adoption of the

2008 ozone NAAQS does not change

that approach.

Following the July 20, 2012, effective

date of area designations and

classifications for the 2008 ozone

NAAQS, and in keeping with the

general policy that the permit issued to

a major new source or major

modification must satisfy the applicable

permit requirements in effect as of the

date of permit issuance, the

requirements to be satisfied by the

permit applicant in an area designated

nonattainment for the 2008 ozone

NAAQS will have depended on the

area's highest nonattainment

classification, whether for the 2008

ozone NAAQS or a previous ozone

NAAQS for which the area remains

nonattainment. See section IV of this

proposal for a more detailed description

of anti-backsliding requirements.

Accordingly, some pending permits that

were originally being reviewed under

the PSD requirements but not yet issued

were to have been (or may need to be)

revised to adequately reflect the area's

new status as nonattainment for the

2008 ozone NAAQS. For example, if an

area designated as attainment or

unclassifiable for the 1997 ozone

NAAQS was designated as

nonattainment for the 2008 ozone

NAAQS, any permit issued on or after

the July 20, 2012, effective date of the

new nonattainment designation (and

classification) must satisfy the

requirements for nonattainment NSR. In

an area that was already designated as

nonattainment for the 1997 ozone

NAAQS at the time it was designated

nonattainment for the 2008 ozone

NAAQS, the source would need to

ensure that its permit application

applies the appropriate nonattainment

NSR requirements (e.g., the applicable

major source thresholds and offsets)

consistent with the area's new

classification under the 2008 ozone

NAAQS as reflected in the SIP and the

final NSR anti-backsliding provisions

for the 2008 ozone NAAQS, as

discussed in section IV.

Some states may already have had in

place a nonattainment NSR program

consistent with the applicable part D

requirements of the Act that can be

directly applied to areas designated

nonattainment for the 2008 ozone

NAAQS and that were not designated

nonattainment for the 1997 ozone

NAAQS as of the July 20, 2012, effective

date of the designations for the 2008

ozone NAAQS. For nonattainment areas

in states with SIPs containing a generic

requirement to issue nonattainment

NSR permits in areas designated as

nonattainment, those permit

requirements for the 2008 ozone

NAAQS became automatically effective

upon designation.

For a newly designated 2008 ozone

nonattainment area in a state with a SIP

that specifically lists the areas in which

nonattainment NSR requirements under

part D apply, or in a state which

currently has no approved

nonattainment NSR program, there will

be an interim period between the July

20, 2012, designation date and the date

when the state amends its SIP either to

list any new nonattainment area(s) or to

include a part D plan. During this

interim period, nonattainment NSR

requirements are governed by the EPA's

Emission Offset Interpretative Ruling

codified in appendix S to 40 CFR part

51. In general, appendix S requires new

or modified major sources in

nonattainment areas to meet the lowest

achievable emission rate (LAER) and

obtain sufficient offsetting emissions

reductions to assure that the new or

modified major sources will not

interfere with the area's progress toward

attainment. Readers should refer to 40

CFR part 51, appendix S for a complete

understanding of these and other

appendix S permitting requirements.

Section 110(a)(2)(C) of the CAA

establishes a general duty on the state to

include a program in its SIP that

regulates the modification and

construction of any stationary source as

necessary to assure that NAAQS are

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achieved. This general duty exists

during all periods, including the period

between the effective date of a new

nonattainment area designation and the

date when a state has an EPA-approved

nonattainment NSR program satisfying

the applicable part D requirements.

Although section 110(a)(2)(C) does not

contain specific requirements a state

must follow for issuing major source

permits during the interim period, the

EPA's regulations at 40 CFR 52.24(k)

require the state to follow 40 CFR part

51, appendix S, during this time. The

availability of the waiver provision in

section VI of appendix S is limited by

the court's ruling in NRDC v. EPA, 571

F.3d 1245 (D.C. Cir. 2009). In the EPA's

Phase 2 Rule for the 1997 ozone

NAAQS, the EPA revised section

52.24(k) to eliminate language stating

that if a nonattainment area did not

have an approved nonattainment NSR

program within 18 months after

designation, a construction ban would

apply. 70 FR 71612 (November 29,

2005). The effect was to extend the

applicability of appendix S, including

the section VI waiver provision, to cover

the full period from the date of

designation to the date on which the

EPA approved the nonattainment NSR

SIP.

In NRDCv. EPA (571 F.3d 1245 (D.C.

Cir. 2009)), the court considered the

petitioners' general objections to the

NSR waiver provision in section VI of

appendix S, as well as the EPA's

elimination of the 18-month limit on the

applicability of that section. The court

dismissed the petitioners' general

objections as "untimely" but vacated

"the elimination of the 18-month time

limit for NSR waivers under Appendix

S" on the ground that it violated section

172(e) of the CAA (571 F.3d at 1276).

The EPA intends to revise section

52.24(k) to reflect the court's vacatur of

the extension of the 18-month time limit

for section VI of appendix S. In the

meantime, as a result of the vacatur, no

section VI waivers may be granted

beyond 18 months from the date of

designation.

2. Facilitating New Source Growth in

Nonattainment Areas

a. Offset Banks

The Act requires new and modified

major sources in nonattainment areas to

secure emissions reductions (i.e., "offsets") to compensate for the

proposed emissions increase. States can

help facilitate continued economic

development in a nonattainment area by

establishing offset banks or registries.

Such banks or registries can help new

or modified major stationary source

owners meet offset requirements by

streamlining identification and access to

available emissions reductions. Several

states have established offset banks to

help ensure a consistent method for

generating and transferring NOx and

VOC offsets.54 Offsets are generated by

emissions reductions that meet specific

creditability criteria set forth by EPA

regulations. 55 40 CFR 51.165(3)(ii)(A)-

(J).

b. Interpollutant Offset Substitution

States can make it easier for new or

modified major sources to satisfy the

offset requirements in an area by

establishing interpollutant offset

substitution provisions. Such provisions

create additional flexibility in meeting

offset requirements by allowing NOx

emissions reductions to satisfy VOC

offset requirements and vice versa. The

appropriate exchange rate for

substitution is determined by the state

for each area consistent with the

attainment needs of the area and must

be approved by the EPA.

c. Economic Development Zones

Section 173(a)(1)(B) of the CAA

authorizes the Administrator, in

consultation with the Secretary of

Housing and Urban Development

(HUD), to identify areas within

nonattainment areas as "zone(s) to

which economic development should be

targeted." In these zones, states are able

to assist new or modified major sources

in meeting the nonattainment area offset

requirement by setting aside growth "allowances" that serve as a pool of

offsets to be tapped by such sources.

The advantage of creating an offset pool

specifically for a CAA economic

development zone (EDZ) relative to

relying on a traditional offset bank is

that the offsets can be fully owned and

controlled by the state, and the offsets

do not need to be obtained from facilityspecific emissions reductions or

shutdowns in the nonattainment area.

Accordingly, this provision is especially

well suited to address the needs of the

manufacturing sector and small

businesses. The EPA is willing to work

with HUD and states to identify

potential areas.

In the context of the 1997 ozone

NAAQS, the EPA previously worked

with Arkansas officials to create a CAA

54 See, for example, emission reduction credit

banking programs in Ohio (OAC Chapter 3745-

1111) and California (H&SC Section 40709).

55 See the EPA's "Improving Air Quality with

Economic Incentive Programs" document at

http://www.epa.govlregion 07airlnsrlnsrmemosl

eipfin.pdf. For additional memoranda and guidance

documents, see http://www.epa.govlregion7/airl

nsr/nsrindex.htm.

EDZ in Crittenden County, which is part

of the Memphis ozone nonattainment

area (see 71 FR 8857, February 21,

2006). The EPA identified Crittenden

County as a CAA EDZ after consultation

with the Secretary of HUD to review

qualification information associated

with HUD-implemented economic

development programs. We also

evaluated socio-economic statistics for

Crittenden County in comparison with

similar information for other U.S.

counties, and we reviewed air quality

modeling of the Memphis

nonattainment area provided by the

Arkansas Department of Environmental

Quality demonstrating that a specified

growth allowance pool was consistent

with timely attainment of the 1997

ozone NAAQS. After reviewing this

information, the Administrator

determined that the EDZ designation

would help the citizens of Crittenden

County without jeopardizing the clean

air goals of the Greater Memphis area.

The Memphis area has since attained

the 1997 ozone NAAQS and the

Arkansas portion of the Memphis

nonattainment area was redesignated to

attainment on March 24, 2010.

j. What are the emission inventory and

emission statement requirements?

1. Emission Inventory Requirements

Emission inventories are critical for

the efforts of state, local and federal

agencies to attain and maintain the

NAAQS that the EPA has established for

criteria pollutants, including ozone.

Pursuant to section 110(a)(2)(F)(ii) of the

CAA, states must submit emission

inventories containing information

regarding the current emissions of

criteria pollutants and their precursors.

The EPA first codified regulations to

implement CAA section 110(a)(2)(F)(ii)

in 40 CFR part 51, subpart Q in 1979

and amended them in 1987.

The 1990 CAA Amendments

established new emission inventory

requirements applicable to certain areas

that were designated nonattainment for

certain pollutants. First, CAA section

182(a)(1) requires that Marginal and

above ozone nonattainment areas

submit a base year emission inventory

for the nonattainment area 2 years after

designation as nonattainment in 1990.

For areas designated nonattainment for

the 2008 ozone NAAQS, we are

proposing that the base year emission

inventory submission be due no later

than 2 years after the effective date of

designation, or alternatively, 30 months

following the effective date of

designation under the consolidated SIP

submittal option described in section

III.A of this preamble.

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Second, CAA section 182(a)(3)(A)

requires that states submit periodic

emission inventories every 3 years after

the initial base year inventory for

Marginal and above ozone

nonattainment areas. The periodic

inventory must include emissions of

VOC and NON for point, nonpoint and

mobile sources (on-road and non-road).

On December 4, 2008, the EPA

promulgated the AERR rule (40 CFR 51,

subpart A). The AERR requires states to

submit comprehensive statewide 3-year

cycle emission inventories (2008, 2011,

2014, etc.) regardless of an area's

attainment status. The EPA thinks it

would be appropriate for states with

periodic inventory obligations under

182(a)(3)(A) to rely on their 3-year cycle

inventory as described in the AERR to

satisfy their 182(a)(3)(A) periodic

inventory obligation. In cases where a

state will use its 3-year cycle inventory

to meet its 182(a)(3)(A) inventory

obligation, we are further proposing that

the emissions reporting requirements of

the AERR be applied to determine all of

the data elements required for such

inventories. (see, e.g. Tables 2A, 2B, 2C

and 2D of 40 CFR part 51, subpart A,

Appendix A).

For all inventories that are used in

developing RFP plans or attainment

demonstrations, mobile source

emissions should be estimated using the

latest emissions models, data and

planning assumptions. The latest

approved models should be used to

estimate emissions from on-road and

non-road sources, in combination with

the latest available estimates of VMT,

vehicle population, and/or equipment

activity. States are advised to check the

EPA Web pages for the mobile source

models and to consult with the EPA

Office of Transportation and Air Quality

and their regional office to determine

the versions of models to use for their

SIPs for the 2008 ozone NAAQS.

Currently, the most recently approved

model for estimating on-road emissions

in states outside of California is

MOVES2010 56 which initially was

approved for use in SIPs on March 2,

2010 (75 FR 9411). 5 7 The EPA has

subsequently released two minor

updates to MOVES2010, MOVES2010a

and MOVES2010b that are also

approved for use in SIPs. The on-road

56 MOVES2010 refers to the initial version of the

model that was approved for use in SIPs and

regional transportation conformity analyses on

March 2, 2010, as well as subsequent minor

upgrades to the model such as MOVES2010a and

MOVES2010b.

57 EMFAC is the model used to estimate on-road

mobile source emissions in California. The latest

version of the model that has been approved for SIP

and conformity purposes is EMFAC2011. See 78 FR

14533 (March 6, 2013).

emissions can be generated either

through inventory mode (via MOVES) or

through emission rates mode (via

SMOKE-MOVES 58). Guidance on using

MOVES as well as information on the

current version of MOVES that has been

approved for use in SIPs and

transportation conformity is available at:

http://www.epa.gov/otaq/modelsl

moves/index.h tm.

Emissions from non-road equipment

should be estimated with the latest

official version of the EPA's NONROAD

model, and other appropriate methods

for estimating emissions from sources

not covered by these models. Links to

Federal Register notices and policy

guidance memos on the latest approved

versions of MOVES and NONROAD can

be found at http://www.epa.gov/otaql

models.htm. States should consult the

guidance document "Emission

Inventory Guidance for Implementation

of Ozone and Particulate Matter

National Ambient Air Quality Standards

(NAAQS) and Regional Haze

Regulations," EPA-454/R-05-001

(updated November 2005) and submit

inventories that are appropriate for each

nonattainment area and consistent with

this guidance.

As indicated above, some inventories

submitted to meet the requirements of

section 182(a)(1) and 182(a)(3)(A) may

be used in the development of RFP

plans and/or attainment

demonstrations. As such, the EPA

requires the methodologies used to

develop these inventories to be clearly

documented and the inventories

themselves to be subject to public

participation requirements and formal

approval/disapproval by the EPA.5 9

In guidance titled, "Public Hearing

Requirements for 1990 Base-Year

Emissions Inventories for Ozone and

Carbon Monoxide Nonattainment

Areas," September 29, 1992, the EPA set

forth its interpretation of a "de

minimis" deferral of the public hearing

requirement and the requirement for the

EPA to approve or disapprove certain

emissions inventories under section

5

8 For more information, see http://www.smokemodel.org/index.cfm.

59 In comparison, the AERR emissions data are

submitted by the states to the EPA, electronically

via the Emission Inventory System to the National

Emissions Inventory (NEI), without public review.

The states submit AERR data to the NEI inventory

12 months after the NEI inventory year (i.e.,

calendar year 2014 NEI inventory data are

submitted by December 31, 2015). The NEI process

provides for the states to review the data as

collected by the EPA before the EPA officially

publishes the data. (Under the current process, the

EPA would intend to publish the data for the 2014

NEI in June of 2016, 6 months after the AERR data

is required to be submitted to the EPA.)

110(k).60 The EPA is proposing to follow

this guidance in implementing the

emissions inventory requirements under

CAA sections 182(a)(1) and 182(a)(3)(A)

for purposes of the 2008 ozone NAAQS.

Under this approach, where emission

inventories are used in the development

of an RFP plan or attainment

demonstration, states can defer the

public hearing on these inventories

until the time the areas adopt and

submit their RFP plans and/or

attainment demonstrations that rely on

such inventories. The EPA would not

take action to approve or disapprove

such inventories until the state

completes the state public participation

process. If a state opts to submit a

consolidated SIP submittal, this should

not be an issue.

2. Source Emission Statements

Section 182(a)(3)(B) of the CAA

requires Marginal and above areas to

submit an emissions statement within 2

years of enactment of the CAA

Amendments of 1990. Specifically it

provides that the emission statement

must: ". . . require that the owner or

operator of each stationary source of

oxides of nitrogen or volatile organic

compounds provide the state with a

statement, in such form as the

Administrator may prescribe (or an

equivalent alternative developed by the

state), for classes or categories of

sources, showing the actual emissions of

oxides of nitrogen and volatile organic

compounds from that source. The first

such statement shall be submitted

within 3 years after the date of the

enactment of the CAA Amendments of

1990. Subsequent statements shall be

submitted at least every year thereafter.

The statement shall contain a

certification that the information

contained in the statement is accurate to

the best knowledge of the individual

certifying the statement."

We published guidance on source

emission statements in a July 1992

memorandum titled, "Guidance on the

Implementation of an Emission

Statement Program." A memorandum

titled, "Emission Statement

Requirements Under 8-hour Ozone

NAAQS Implementation," dated March

14, 2006, clarified that the source

emission statement requirement under

the CAA was applicable to all areas

designated nonattainment for the 1997

ozone NAAQS and classified as

Marginal or higher under subpart 2, part

D, title I of the CAA. This requirement

similarly applies to all areas designated

60 CAA section 110(k) lists the actions that the

EPA may take on SIP submissions, including

approval and disapproval of the SIP.

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nonattainment for the 2008 ozone

NAAQS and classified as Marginal or

higher under subpart 2. The EPA is

proposing this SIP submittal be due 2

years after the effective date of

designations or, alternatively, no later

than 30 months after the effective date

of designations as part of a consolidated

SIP submission as described previously

in this proposal. Most areas that need an

emission statement program already

have one in place due to a

nonattainment designation for an earlier

ozone NAAQS. If an area has a

previously approved emission statement

rule in force for the 1997 ozone NAAQS

or the 1-hour ozone NAAQS that covers

all portions of the nonattainment area for the 2008 ozone NAAQS, such rule

should be sufficient for purposes of the

emissions statement requirement for the

2008 ozone NAAQS. The state should

review the existing rule to ensure it is

adequate and, if it is, may rely on it to

meet the emission statement

requirement for the 2008 ozone NAAQS.

We note that regardless of whether

states submit their emissions inventory

statements within 2 years of the

effective date of designations, or within

30 months of the effective date of

designations as part of a consolidated

SIP submission, this proposed rule will

ensure that, consistent with the intent of

section 182(a)(3)(B), states will submit

their first emission statements no later

than 3 years following the effective date

of designations for the 2008 NAAQS.

We are soliciting comments on our

interpretation of the emission statement

requirements under section 182(a)(3)(B)

as they would apply to areas designated

nonattainment for the 2008 ozone

NAAQS.

K. What are the ambient monitoring

requirements?

Ozone monitoring data play an

important role in designations,

classifications, control strategy

development and related

implementation activities. The EPA's

ambient monitoring requirements are

contained in 40 CFR part 58. On July 16,

2009, the EPA proposed revised rules

for monitoring ambient ozone (74 FR

34525). The EPA proposed to modify

minimum monitoring requirements in

urban areas, add new minimum

monitoring requirements in non-urban

areas and extend the length of the

required ozone monitoring season in

some states. The schedule for finalizing

any or all aspects of the ambient ozone

monitoring proposal remains unclear at

this time. There were no new

monitoring requirements included in

the 2008 ozone NAAQS rule.

The Photochemical Assessment

Monitoring Station (PAMS) program,

required by CAA section 182(c)(1),

collects enhanced ambient air

measurements in areas classified as

Serious, Severe, or Extreme ozone

nonattainment. Each PAMS area collects

data for a target list of volatile organic

compounds (VOCs), NOx, NOy, and

ozone, as well as surface and upper air

meteorological measurements.

Monitoring rule amendments published

on October 17, 2006, (71 FR 61236)

reduced the minimum PAMS

requirements. The revisions were

intended to require the retention of the

minimum common PAMS network

elements necessary to meet the

objectives of every PAMS program,

while freeing up resources for states to

tailor other features of their own PAMS

networks to suit their specific data

needs.

L. How can states qualify for a 1-year

attainment deadline extension?

Section 181(a)(5) of the CAA

addresses the conditions under which

an area may be eligible for a 1-year

extension of its attainment date.

Because that statutory provision was

written for an exceedance-based

standard, such as the 1-hour ozone

NAAQS, the EPA established through

the Phase 1 Rule (40 CFR 51.907) an

interpretation that would apply to a

concentration-based standard, such as

the 1997 ozone NAAQS.61 The 2008

ozone NAAQS is also a concentrationbased standard. Thus, we are proposing

the same approach as set forth in section

51.907 for purposes of the 2008 ozone

NAAQS. Under this approach, an area

that fails to attain the 2008 ozone

NAAQS by its attainment date would be

eligible for the first 1-year extension if,

for the attainment year, the area's 4th

highest daily 8-hour average is at or

below the level of the standard. The area

would be eligible for the second 1-year

extension if the area's 4th highest daily

8-hour value, averaged over both the

original attainment year and the first

extension year, is at or below the level

of the standard. Thus, to be eligible for

the first 1-year extension, the 4th

highest daily 8-hour value for an area

would need to be at or below 0.075

6 1

The exceedance based standard basically

allowed the NAAQS level to be exceeded an

average of only once a year over a 3-year period.

(This is a generalization of how attainment is

determined; the actual method considers other

factors such as completeness of the data.) See 40

CFR, appendix H. In contrast, the concentration

based standard allows the level of the 8-hour ozone

NAAQS to be "exceeded" more than once a year

on average because the form (concentration-based)

of that NAAQS is determined by averaging the 4th

highest reading for each year over a 3-year period.

ppm. The area would be eligible for the

second extension if the area's 4th

highest daily 8-hour value, averaged

over both the original attainment year

and the first extension year, is less than

or equal to 0.075 ppm.

M. How will the EPA address transport

of ozone and its precursors for rural

nonattainment areas, multi-state

nonattainment areas and international

transport?

1. Rural Transport Areas (RTAs)

Section 182(h) of the CAA recognizes

that ozone standard violations in some

rural areas may be almost entirely

attributable to emissions from outside

the nonattainment area (i.e., from

upwind areas). That section provides

that an area meeting certain criteria

may, at the Administrator's discretion,

be treated as a "rural transport area."

Under this classification, the area's

ozone implementation requirements are

met if the area satisfies the requirements

applicable to areas classified as

Marginal. This means that the area does

not need to provide an attainment

demonstration or adopt specific

mandatory measures associated with

higher classifications. The only

requirements that would apply,

regardless of the level of ozone air

quality, would be nonattainment NSR,

at the Marginal major source threshold

and offset ratio, and conformity

requirements associated with a

nonattainment designation, as well as

the emission inventory and source

emission statement requirements.

Because the area's nonattainment

problem is primarily due to upwind

sources outside the control of the area,

the consequences of failure to attain by

the Marginal area deadline would not

apply.

The EPA may determine an area is a

rural transport area if it meets two

statutory criteria. First, a nonattainment

area may only be a rural transport area

if it ". . . does not include, and is not

adjacent to, any part of a Metropolitan

Statistical Area or, where one exists, a

Consolidated Metropolitan Statistical

Area..." In addition, the EPA must

determine that "sources of VOC

emissions (and, where the

Administrator determines relevant, NOx

emissions) within the area do not make

a significant contribution to the ozone

concentrations measured in the area or

in other areas." The metropolitan areas

addressed in section 182(h) were only

those with population cores of 50,000 or

more.

In 2000, OMB issued new standards

for defining statistical areas (65 FR

82228; December 27, 2000). The new

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statistical area standards supersede and

replace the previous 1990 standards for

defining metropolitan areas, which the

EPA used for the ozone designations

and classifications for the 1-hour ozone

NAAQS and the 1997 ozone NAAQS. In

order to facilitate comparison of data for

MSAs over time, OMB retained the

conceptual approach to defining

metropolitan statistical areas based

around population cores of 50,000 or

more. These core areas are not

necessarily confined to city limits, and

may include multiple counties or parts

of counties. Because of the usefulness of

the metropolitan area standards and

data products, OMB received requests

that the new standards take into account

more territory of the United States. In

response, OMB established a new

category called micropolitan statistical

areas, which are defined as areas with

an urban core population of at least

10,000 but less than 50,000. The new

standards also establish the term Core

Based Statistical Area (CBSA), which

refers collectively to both metropolitan

statistical areas and the new smaller

micropolitan statistical areas, and the

term Combined Statistical Area (CSA),

which consists of two or more adjacent

CBSAs that are linked by commuting

patterns. (See http://www.census.govpopulation/www/metroareas/

metrodef.html.)

In light of the changed OMB

definitions, the EPA has considered

how the reference in section 182(h) to

areas adjacent to a "Metropolitan

Statistical Area or, where one exists, a

Consolidated Metropolitan Statistical

Area" should be interpreted. We intend

to interpret this language to refer to

OMB's current definition of MSA. In

other words, to qualify for a rural

transport classification, the

nonattainment area's boundary could

not include or be adjacent to an OMBdefined MSA based on the Census

Bureau's latest population estimates.

Under this approach, any nonattainment

area associated with a micropolitan area

or area too sparsely populated to be

included in a census-defined statistical

area, based on Census Bureau

population estimates, may be able to

qualify for a rural transport

classification.

The EPA believes this interpretation

of CAA section 182(h) is consistent with

the scope of section 182(h) as

promulgated in 1990 and provides

maximum flexibility for areas to qualify

for this classification where appropriate.

During the designations process for the

2008 ozone NAAQS, no states identified

any rural transport areas.

2. Multi-State Nonattainment Areas

Each state within a multi-state ozone

nonattainment area is responsible for

meeting all the requirements relevant to

the given area. Section 182(j)(1)(a)

requires that states should "take all

reasonable steps to coordinate

substantively and procedurally" on SIP

development. States should coordinate

on topics such as determining the

appropriate modeling domain, baseline

year, projection years and

meteorological episodes. In addition,

they should coordinate modeling efforts

and, as required by section 182(j)(1)(B),

the attainment demonstration must be

based on photochemical grid modeling

or another method determined by the

EPA to be at least as effective.

Section 182(j)(2) recognizes that in

certain instances, one or more states

within a multi-state nonattainment area

may not submit an attainment plan by

the required date, and thus interfering

with the ability of the area as a whole

to demonstrate attainment. In such case,

section 182(j) provides that even though

the area as a whole would not be able

to demonstrate attainment, the sanction

provisions of section 179 shall not apply

in the portion of the nonattainment area

located in a state that submitted all

other provisions of an attainment plan

and demonstrated that it could have

demonstrated attainment but for the

failure of the other state to cooperate.

3. International Transport

a. Transboundary Transport

Most ozone air quality problems in

the United States are due primarily to

emission sources within the United

States. However, domestic ozone air

quality can also be affected by sources

of emissions located across United

States borders in Canada and Mexico,

and from other continents. These

contributions to U.S. ozone

concentrations from sources outside the

United States can affect to varying

degrees the ability of some areas to

attain and maintain the 2008 ozone

NAAQS and may play a larger role in

ozone attainment demonstrations for

future NAAQS.

There is strong evidence that baseline

levels of tropospheric ozone have risen

above pre-industrial levels in the

northern hemisphere, and much of this

increase can be directly attributed to

human-caused emissions of ozone

precursors. Our ability to fully

characterize and quantify the impact of

sources of air pollution from other parts

of North America (Canada and Mexico)

has been steadily improving; however,

our ability to assess the impacts of air

pollution from other continents on air

quality in the U.S. is still developing.

Some factors that affect our current

ability to fully characterize international

transboundary transport of air pollution

from other continents are uncertainties

in foreign emissions inventories,

incomplete understanding of

atmospheric chemistry during transport

and the inability to distinguish longrange pollutant contributions from local

and regional sources of air pollution.

In order to address the challenging

and complex problem of the impact of

foreign emissions on air quality in the

U.S., the EPA has been engaged in a

number of different efforts both

domestically and internationally. In

1991, the U.S. and Canada entered into

an agreement to address transboundary

air pollution (U.S.-Canada Air Quality

Agreement); and in 2000 an Ozone

Annex was added to the agreement to

establish commitments to reduce ozone

and its precursors-NOx and VOCs.

Under this agreement, significant

progress has been made in reducing

transport of ozone and its precursors

across the U.S.-Canada border.

Similarly, the U.S. has been working

with Mexico in addressing the

transboundary transport of air pollution

under the La Paz Agreement

(Cooperation for the Protection and

Improvement of the Environment in the

Border Area) established in 1983.

In addition, the EPA, along with

several other federal agencies,

sponsored a National Academy of

Sciences study to summarize the state of

knowledge regarding the international

flows of air pollutants into and out of

the U.S. and consider the impact of

these flows on the achievement of

environmental objectives related to air

quality and pollutant deposition in the

U.S. 62 The study, completed in 2009,

recommended a variety of research

initiatives, such as advanced

"fingerprinting" techniques to better

identify source-specific pollutant

characteristics in order to enhance the

understanding of long-range transport of

pollution. Moreover, the EPA co-chairs

the Task Force on Hemispheric

Transport of Air Pollution under the

Convention on Long-range

Transboundary Air Pollution of the

United Nations Economic Commission

for Europe. The task force was

established to develop a fuller

understanding of intercontinental

transport of air pollution in the northern

hemisphere, and serves as a forum for

international scientific communication

62 "Global Sources of Local Pollution: An

Assessment of Long-Range Transport of Key Air

Pollutants to and from the United States." http://

www.nap.edu/catalog.php?record id=12743.

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and collaboration and as a bridge

between the international research

community and the international air

quality policy community. This task

force concluded that methane is an

important precursor to tropospheric

ozone on global scales and that

decreasing methane emissions will, over

several decades, decrease background

ozone levels and help mitigate climate

change.

Methane has not been addressed as

part of ozone attainment planning in the

past because of the limited effect that

local measures to control methane

would have on local or regional ozone

concentrations in the immediate time

frame. Given the temporal and spatial

characteristics associated with methane

and ozone, we continue to believe that

it is inappropriate to require or rely on

local methane emission reductions in

ozone SIPs. Through voluntary

partnership programs focused on

greenhouse gas reduction, the EPA has

worked with U.S. industries and state

and local governments to promote costeffective opportunities for reducing

methane emissions from the coal,

natural gas, petroleum, landfill and

agricultural industries. Building on

these domestic programs and the

international Methane to Markets

Partnership, the United States has

joined with other countries to launch

the Global Methane Initiative to

facilitate the reduction of methane

emissions globally. These domestic and

international efforts will help mitigate

climate change and decrease

background ozone levels over the next

several years and decades.

The EPA will continue to work with

our domestic and international partners

to better understand the extent and

implications of transboundary flows of

air pollutants and, where possible, to

mitigate their impact on U.S. domestic

air quality.

b. The SIP Approval Process Under

Section 179B for International Border

Areas

Emissions from sources outside the

United States that may contribute to

violations of the 2008 ozone NAAQS in

an area designated as nonattainment

may be addressed by section 179B of the

CAA. This section allows the EPA to

approve an attainment demonstration

for a nonattainment area if: (1) The

attainment demonstration meets all

other applicable requirements of the

CAA; and (2) the submitting state can

satisfactorily demonstrate that "but for

emissions emanating from outside of the

United States," the area would attain

and maintain the ozone standard. The

EPA is proposing that this could include

consideration of any emissions from

North American or intercontinental

sources. The EPA has historically

evaluated these "but for"

demonstrations on a case-by-case basis,

based on the individual circumstances,

the classification of the area and the

data provided by the submitting state.

These data have included ambient air

quality monitoring data, modeling

scenarios, emissions inventory data and

meteorological or satellite data. For

areas classified as Moderate and above,

the modeling and other elements of the

attainment demonstration must show

timely attainment of the NAAQS but for

the emissions from outside of the U.S.

Section 179B does not, however,

provide authority to exclude monitoring

data influenced by international

transport from regulatory

determinations related to attainment

and nonattainment. Thus, even if the

EPA approves a section 179B "but for"

demonstration for an area, the area

would continue to be designated as

nonattainment and subject to the

applicable requirements, including

nonattainment new source review,

conformity and other measures

prescribed for nonattainment areas by

the CAA. However, if the EPA approves

a "but for" demonstration for an area,

the area would not be subject to

reclassification for failure to attain by its

attainment deadline and, if such areas

were classified as Severe or Extreme, the

section 185 fee program would not

apply based on a failure to attain by the

attainment date.

Although monitored data cannot be

excluded for a determination of whether

an area has attained based solely on the

fact the data are affected by emissions

from outside the U.S., such data may be

excluded from consideration if they

were significantly influenced by

exceptional events. CAA section

319(b)(3). Where international transport

meets the criteria contained in the

EPA's Exceptional Events Rule (40 CFR

50.14), it can be addressed by that rule.

The EPA believes that the best

approach for addressing the potential

impacts of international transport on

nonattainment is for states to work with

the EPA on a case-by-case basis to

determine the most appropriate

information and analytical methods for

each area's unique situation. We will

work with states that are developing

plans pursuant to section 179B, and

ensure the states have the benefit of the

EPA's developing understanding of

international transport of ozone and its

precursors.

N. How will the section 182(f) NOx

provisions be handled?

1. Background

Section 182(f) of the CAA applies to

areas designated nonattainment for

ozone and classified as Serious and

above under subpart 2 of part D of title

1, and to areas in the OTR. It requires

states to apply the same requirements to

major stationary sources of NON as

apply to major stationary sources of

VOC under subpart 2. Specifically, this

requirement applies to RACT and

nonattainment NSR for major stationary

sources of NON in these areas.6 3

However, while NON emissions are

necessary for the formation of ozone in

the lower atmosphere, a local decrease

in NON emissions can, in some cases,

increase local ozone concentrations.

Thus, section 182(f) also allows a person

or a state to request an exemption from

or limitation on the application of the

specified NON requirements if specific

circumstances are met ("NON

exemption"). Areas granted a NON

exemption under section 182(f) may

also be granted an exemption from

certain requirements of the EPA's motor

vehicle I/M regulations and from certain

federal requirements of General and

Transportation Conformity.64 The EPA

initially issued guidance on the section

182(f) NON requirements in 1993.65 On

January 14, 2005, the EPA issued an

update to that guidance to address

implementation of the 1997 ozone

NAAQS.66

63 See 57 FR 55622, November 25, 1992,

"Nitrogen Oxides Supplement to the General

Preamble."

64 As stated in the EPA's I/M rule (57 FR 52950;

November 5, 1992) and conformity rules (60 FR

57179, November 14, 1995 for transportation

conformity and 58 FR 63214, November 30, 1993

for general conformity), certain NOx requirements

in those rules do not apply where the EPA grants

an area-wide exemption under section 182(f).

65 In 1993 the EPA issued a guidance document

for application of the section 182(f) provisions with

respect to the 1-hour ozone NAAQS. The document

was titled "Guideline for Determining the

Applicability of Nitrogen Oxides Requirements

under Section 182(f), from John S. Seitz, Director,

Office of Air Quality Planning and Standards, to the

Regional Division Directors, December 16, 1993.

The NOx exemption guidance was revised later in

"Section 182(f) Nitrogen Oxides (NOx) Exemptions

Revised Process and Criteria," memorandum from

John S. Seitz, Director, Office of Air Quality and

Standards, to the Regional Division directors, May

27, 1994; and "Section 182(f) Nitrogen Oxides

(NOx) Exemptions-Revised Process and Criteria,"

memorandum from John S. Seitz, Director, Office of

Air Quality and Standards, to the Regional Division

Directors, February 8, 1995.

66 Memorandum dated January 14, 2005,

"Guidance on Limiting Nitrogen Oxides (NOx)

Requirements Related to 8-Hour Ozone

Implementation" from Stephen D. Page, Director,

Office of Air Quality Planning and Standards, to Air

Directors, Regions I-X.

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2. Proposal

We are not proposing any

modifications to our previous

interpretation of the NON RACT

requirement for purposes of

implementing the 2008 ozone NAAQS.

Consistent with the approach taken in

the 2005 updated guidance and the

Phase 2 Rule, we are proposing that a

previously granted NON exemption (or

waiver) under the 1-hour or 1997 ozone

NAAQS would not apply for purposes

of implementing the 2008 ozone

NAAQS. A state would need to submit

a new request for an exemption that is

supported by analyses specific to the

2008 ozone NAAQS and considers any

relevant information developed after the

1-hour or 1997 ozone NAAQS waivers

were granted. As states evaluate

whether to seek a NON waiver, the EPA

encourages them to include

consideration of air quality effects that

may extend beyond the designated

nonattainment area. See, for example,

the discussion in the Phase 2 Rule,

November 29, 2005, on page 71661 (70

FR at 71661-71662).

A SIP revision requesting a NON

exemption for the 2008 ozone NAAQS

must contain adequate documentation

that the provisions of section 182(f) and

our regulations are met. The EPA has

issued guidance on appropriate

documentation regarding section 182(f)

for application to the 8-hour ozone

program. 67 The EPA believes this

guidance is sufficient to cover the 2008

ozone NAAQS.

0. Emissions Reduction Benefits of

Energy Efficiency/Renewable Energy

Policies and Programs, Land Use

Planning and Travel Efficiency

1. Energy Efficiency/Renewable Energy

Policies and Programs

Governments at all levels-local,

state, tribal and federal-have been

developing energy efficiency/renewable

energy (EE/RE) policies and programs to

reduce demand for and production of

fossil-fuel driven electric power. As of

2011, twenty-nine states (and

Washington, DC) had adopted

renewable portfolio standards (RPS)

which require retail electricity providers

to supply a minimum percentage or

amount of retail demand with

renewable resources, more than double

the number of states in 2000.68 69

67 Memorandum dated January 14, 2005,

"Guidance on Limiting Nitrogen Oxides (NOx)

Requirements Related to 8-Hour Ozone

Implementation" from Stephen D. Page, Director,

Office of Air Quality Planning and Standards, to Air

Directors, Regions I-X.

68 For more information, see presentations from

the 2011 National Summit on RPS at http://

Although the details of each RPS policy

vary, generally they are structured such

that, initially, a relatively small

percentage of a state's electricity supply

must come from renewable sources, and

over time the percentage increases until

a state-specified target is achieved. For

example, the State of Connecticut

requires that 4.5 percent of electricity

come from renewable sources beginning

in 2005, and the target increases to 27

percent by 2020.70

Energy efficiency policies refer to a

range of laws, regulations, and public

utility commission (PUC) orders aimed

at reducing energy demand through the

use of more energy efficient equipment,

technologies, and practices. These

policies can be funded through

ratepayer surcharges, federal funds (e.g.,

American Recovery and Reinvestment

Act 71), state general funds, proceeds

from pollution auctions such as the

Regional Greenhouse Gas Initiative 72

and/or any combination of the above.

Examples of energy efficiency policies

include:

* Minimum efficiency requirements

for new homes and buildings (building

energy codes) or appliances (appliance

standards).

* Requirements for utilities (or other

program administrators) to deliver a

specified amount of energy savings by

developing energy efficiency programs

to increase market adoption of energy

efficiency technologies and practices

(i.e., energy efficiency resource

standards (EERS), also known as Energy

Efficiency Portfolio Standards (EEPS)).

Some states have incorporated EERS to

function alongside or as part of their

RPS.

* Specified funding levels collected

via ratepayer electric bills or other

sources and dedicated to implementing

energy efficiency programs (e.g., public

benefits funds, air pollution allowance

auction revenue).

EE/RE policies and programs can help

reduce electricity generation from fossilfueled sources resulting in lower

emissions of NON (as well as other

criteria pollutants, hazardous air

pollutants and greenhouse gases) from

power generation. Many renewable

energy sources such as wind, solar and

hydro power have no associated NON

www.cleanenergystates.org/assets/Uploads/2011-

BPS- Summit-Combined-Presentations-File.pdf.

69 See Database of CHP Policies and Incentives

(dCHPP) at http://www.epa.govlchplpoliciesl

database.html.

7

0

http://www.dpuc.state.ct.uslelectric.nsfl

$FormHenewableEnergyView?OpenForm&.

71 For more information, go to: http://

www.recovery.gov/Pages/defa ult.aspx.

72 For more information, go to: http://

www.rggi.org/.

and other emissions. Other renewable

energy sources, such as landfill gas

combustion used to power electrical

generators, do produce some air

emissions but generally less NON

emissions than coal-fired EGUs. Energy

efficiency is achieving the same or

better level of service or performance

with lower energy consumption.

Examples include high-efficiency

appliances; efficient lighting; highefficiency heating, ventilating and air

conditioning systems or control

modifications; efficient building design;

advanced electric motor drives;

combined heat and power; and heat

recovery systems.

The EPA encourages states to consider

adopting EE/RE policies and programs

to benefit nonattainment areas in their

own state, as well as to reduce the

impact of ozone transport on downwind

states. In July 2012, the EPA made

available the first version of clarifying

guidance on the incorporation of EE/RE

measures in SIPs. 73 Specifically, the

EPA made available a document titled,

"Roadmap for Incorporating Energy

Efficiency/Renewable Energy Policies

and Programs into State and Tribal

Implementation Plans" to encourage

state, tribal and local agencies to

consider incorporating EE/RE policies

and programs into SIPs/tribal

implementation plans (TIPs). The

manual is a "living" document, and it

will be updated periodically as new

information becomes available.

The manual describes four pathways

for considering air pollution reductions

from EE/RE policies and programs in

SIPs and TIPs. They can be included in

the attainment year projected baseline,

factored into a "weight of evidence"

attainment demonstration, incorporated

as emerging/voluntary measures, or

adopted as control measures and

modeled in the attainment

demonstration. When reviewing air

pollution reductions from EE/RE

policies and programs for the purpose of

SIPs and TIPs, it is important to

consider how the EE/RE policies and

programs and their associated emission

reductions best fit within one or more

of the four SIP pathways. Valid EE/RE

policies and programs that meet the

applicable requirements of section

182(c)(9) can also be used as

contingency measures.

The EPA is providing additional

assistance to state, tribal and local

agencies, including tools for quantifying

the emissions impacts of EE/RE policies

and programs, training and technical

assistance, and energy savings

information for state-level EE policies

73 See http://www.epa.govlairqualityleere.html.

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and programs. The EPA is also working

with states on developing examples to

illustrate how reductions from specific

EE/RE policies and programs could be

quantified and considered in their SIPs.

The EPA encourages states to continue

to work with each other and with the

EPA to incorporate emission reductions

from their EE/RE policies and programs

into SIPs.

2. Land Use Planning

States may also wish to consider

strategies that foster more efficient

urban and regional development

patterns as another effective long-term

air pollution control measure. For

example, land use strategies consistent

with the principles endorsed by the

HUD DOT EPA Sustainable

Communities Partnership 74 can reduce

mobile source emissions by providing a

broader range of transportation and

housing choices. Strategies that achieve

such results include: increased

residential development in major

employment centers, transit-oriented

development, redevelopment of

underutilized land in existing

communities and making pedestrian

and transit access key design features of

new communities. Specific activities

that support such strategies include:

changing local zoning codes to

accommodate mixed use development

and more walkable neighborhoods;

greenway corridors; complete streets

ordinances; increasing street

connectivity; creating more flexible

parking standards; transit station area

planning; and funding or policy

incentives to support redevelopment.

EPA studies have concluded that

development patterns that enable

people to live closer to work, and that

allow people to walk, bike or use transit,

will reduce VMT, thereby decreasing

automobile emissions and improving

regional air quality. 75 Several studies

conducted by metropolitan planning

organizations have also found

significant reductions in VMT

associated with accommodating more

growth though redevelopment in

existing communities rather than

greenfields development.

74 Sustainable Communities Principles: 1. Provide

more transportation choices. 2. Promote equitable,

affordable housing. 3. Enhance economic

competitiveness. 4. Support existing communities.

5. Coordinate and leverage federal policies and

investments. 6. Value communities and

neighborhoods. See http://www.epa.govl

smartgrowth/partnership/index.html.

75 "Our Built and Natural Environments" (EPA

231-R-01-002, January 2001). "Measuring the Air

Quality and Transportation Impacts of Infill

Development" (EPA 231-R-07-001, November

2007).

The EPA has issued guidance on how

to include emissions reductions from

such growth strategies in SIPs. This

guidance document, "Improving Air

Quality Through Land Use Activities,"

is available at: http://www.epa.gov/otaql

stateresources/policy/transp/lan duse/

rOlOOl.pdf.

The guidance provides communities

experiencing air quality problems with

the information they need to better

understand the link between air quality,

transportation and land use activities,

and how certain land use activities have

the potential to help local areas meet

and maintain healthy air quality. The

document also includes methods to help

communities account for the air quality

benefits of their local land use activities

in their air quality plans. The EPA will

provide additional guidance as needed,

and will continue to work with states on

incorporating these types of programs

into their SIPs.

3. Travel Efficiency

In addition to land use strategies,

areas should consider incorporating

travel efficiency strategies in their SIPs.

Travel efficiency strategies may include

land use strategies, but also include new

or expanded mass transit options,

commuter strategies, system operations

(e.g., eco-driving, ramp metering),

pricing (e.g., parking taxes, congestion

pricing, intercity tolls), speed limit

restrictions and multimodal freight

strategies.

In July 2009, the Urban Land Institute

released a report titled, Moving Cooler:

An Analysis of Transportation

Strategies for Reducing Greenhouse Gas

Emissions, 76 which the EPA and the

DOT helped to fund. The report

analyzed the potential levels of

emissions reductions achievable from

light-duty travel efficiency strategies.

Moving Cooler included six different

bundles of strategies to reflect different

potential groups of strategies that could

be implemented.

We believe that the "Low Cost"

bundle of measures represents the most

appropriate combination of strategies for

states to consider based on cost,

likelihood of success and accuracy of

the research results. This bundle of

measures includes the strategies listed

above. We have conducted a

preliminary national emissions

modeling analysis using the data in the

report and estimate that between 2010

and 2020 the low cost bundle of

measures could reduce NON and VOC

76 Cambridge Systematics, Inc. (2009). Moving

Cooler: An Analysis of Transportation Strategies for

Reducing Greenhouse Gas Emissions. Urban Land

Institute: Washington, DC (http://wvw.uli.org/).

emissions between approximately 2 and

5 percent depending on how

aggressively the strategies are

implemented. Additional reductions are

possible in later years.

The Moving Cooler report makes

assumptions about the geographic scope

for which each strategy could be

implemented. For example, certain

strategies like increased transit are

dependent on high population density,

while other strategies like

telecommuting could be implemented

in both urban and rural areas. The

percent reductions for such measures

would be larger in urban areas, where

VMT reductions would be concentrated.

The EPA believes that states should

consider these types of strategies as they

develop SIPs for the 2008 ozone

NAAQS.

In March of 2011, the EPA released

two documents that we believe will

prove to be useful to states that want to

evaluate emissions reductions that may

be available from travel efficiency

strategies. The first document is titled,

"Potential Changes in Emissions Due To

Improvements In Travel Efficiency." 77

This report provides information on the

effectiveness of travel efficiency

measures for reducing emissions of

NOx, VOCs and PM 2.

5 at the national

scale. The report describes an approach

that uses regionally derived travel

model data and other travel activity

information, and sketch-planning

analysis to estimate potential emission

reductions from urban areas of varying

size and characteristics. The results are

applied to other urban areas in the U.S.

of similar characteristic to estimate

potential national emission reductions.

The second document is titled,

"Transportation Control Measures: An

Information Document for Developing

and Implementing Emission Reduction

Programs." 78 This document provides

information on transportation control

measures that have been implemented

across the country for a variety of

purposes, including reducing emissions

related to criteria pollutants. The

document describes the processes used

to develop and implement the strategies

and, where available, their effectiveness.

P. Efforts To Encourage a MultiPollutant Approach When Developing

2008 Ozone SIPs

1. In General

From a planning and resource

perspective, the EPA believes that it can

77EPA-420-R-11-003, March 2011, http://

epa.gov/otaq/stateresources/policy/420r1 1003.pdf.

7

8 EPA-430-R-09-040, March 2011, http://

www.epa.gov/otaq/stateresources/policy/

430rO9040.pdf.

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be efficient for states to develop

integrated control strategies that

addresses multiple pollutants rather

than separate strategies for each

pollutant or NAAQS individually. An

integrated air quality control strategy

that reduces multiple pollutants can

help ensure that reductions are

efficiently achieved and produce the

greatest overall air quality benefits. For

example, we know that certain control

measures that reduce emissions of the

ozone precursors NOx and VOC, and

thus reduce ambient ozone levels, can

also result in reduced emissions and

ambient concentrations of PM 2.

5 79 and

also can improve visibility. Many VOCs

are also HAP, so an ozone control

strategy may provide the additional

benefit of reducing air toxics. We also

know that many sources of PM 2.

5 also

emit toxic metals as particulates, so

controlling directly emitted PM 2.5

emissions from these sources would

also reduce the emissions of toxic

metals. In addition, due to expected

changes in meteorology resulting from

climate change, the EPA encourages

states to assess climate change and air

pollution together and account for the

potential effects of climate change in

their multi-pollutant planning efforts.

In June 2007, the EPA's CAA

Advisory Committee (CAAAC)

recommended that the agency allow

states to integrate SIP requirements and

other air quality goals into a

comprehensive plan.80 The

recommended plan would demonstrate

attainment/maintenance of multiple

NAAQS, accomplish sector-based

reductions, realize risk reductions of

HAPs and make improvements in

visibility. It could also be structured to

integrate programs addressing land use,

transportation, energy and climate.

The EPA has encouraged states to take

a multi-pollutant approach to managing

air quality.81 Specifically, we have

encouraged states to involve all

stakeholders when planning to meet air

quality standards and to provide a basic

outline for how local jurisdiction(s)

could address air pollutants in an

integrated manner.

While the agency encourages states to

develop multi-pollutant plans, we

recognize that the requirement for the

79 For a list of potential control measures for

PM2 .5 precursors, see http://www.epa.gov/

airquality/particlepollution/measures/

pm control measures tables verl.pdf.

80 Recommendations to the Clean Air Act

Advisory Committee: Phase ii, June 2007, http://

epa.govlairlcaaaclaqmlphase2finalrept2007.pdf.

81 Memo from Stephen D. Page to Regional Air

Division Directors, Aug. 10, 2005, "Consideration of

Multiple Pollutants in Control Strategy

Development." http://epa.gov/air/caaac/aqm/aqmpage-memo.pdf.

EPA to review and, as necessary, revise

NAAQS every 5 years, which can trigger

new statutory SIP submission and

attainment dates, as well as the everevolving understanding of pollutants

and the myriad control programs that

may be available to reduce emissions,

can sometimes make such efforts

challenging. For example, under the

current law, the 2007 submission date

for Regional Haze SIPs has already

passed while the December 2012

submittal date for attainment

demonstrations for the 2006 PM2 .5

NAAQS is more than 2 years before the

proposed submittal date for attainment

demonstrations for the 2008 ozone

NAAQS. Although it is thus not feasible

to integrate fully the planning

requirements for regional haze, the 2006

PM2 .

5 NAAQS and the 2008 ozone

NAAQS, states could use common

databases and modeling tools for all

three programs and rely on similar

control measures as appropriate.

Furthermore, as states develop plans to

meet the 2008 ozone NAAQS, they may

wish to modify existing plans for other

NAAQS or for regional haze as they

consider strategies more

comprehensively. However, it is

important to note that all the CAA

mandated planning and program

elements for individual standards must

continue to be met. We are specifically

requesting comments on other

approaches to integrating the planning

requirements for multiple NAAQS and

other CAA programs that are

promulgated at different times.

2. What is the EPA doing beyond

encouraging states to integrate their air

quality planning activities to the extent

feasible?

Ideally, an air quality management

plan (AQMP) is a set of pollution

reduction strategies/planning activities

for an area demonstrating: attainment/

maintenance of one or more NAAQS;

risk reductions from HAPs;

improvements in visibility and

ecosystem health; and integration of

land use, transportation, energy and

climate activities in the area. Three

areas in the country-North Carolina,

New York and the city of St. Louis

(involving both Missouri and Illinois)-

participated in an EPA-led pilot effort to

develop multi-pollutant AQMPs. The

pilots provided lessons regarding AQMP

development that should prove useful to

other areas interested in better

integrating their air quality planning.

The areas' initial AQMPs and other

materials are available on the EPA's

Web site. 82

3 2

http://www.epa.govlairlaqmpl.

Implementation of the 2008 ozone

NAAQS provides an opportunity for

states to consider how to use a multipollutant approach from the beginning

of their planning process. We

recommend that states and tribes

wishing to take a comprehensive

approach consider the following

activities.

e Develop models for the attainment

demonstration that include previously

implemented or planned measures to

reduce ozone precursors, secondary fine

particles, pollutants that contribute to

regional haze and, where appropriate,

air toxics and any potential negative

impacts on ecosystems.

* Conduct an integrated assessment

of the impact controls have on ambient

levels of ozone, PM2 .5, regional haze

and, where applicable, air toxics,

greenhouse gases, ecosystem protection

and environmental justice.

* Use common data bases and

analytical tools, where possible.

EPA is requesting comment on what

incentives or assistance we might be

able to provide to encourage states to

integrate their planning activities.

3. Multi-pollutant Assessments/Oneatmosphere Modeling

A multi-pollutant assessment, or oneatmosphere modeling, is conducted

with a single air quality model that is

capable of simulating transport and

formation of multiple pollutants

simultaneously.83 For example, this

type of model can simulate formation

and deposition involving pollutants

associated with ozone, PM2 .

5 and

regional haze, and it can include

algorithms simulating gas phase

chemistry, aqueous phase chemistry,

aerosol formation and acid deposition.

This type of model could also include

the formation and deposition of key air

toxics and the chemical interactions that

occur with these individual toxic

species to produce ozone and PM2 .5.

Multi-pollutant assessments are

recommended for ozone attainment

demonstrations because the formation

and transport of ozone is closely related

to the formation of both PM 2 .5 and

regional haze. There is often a positive

correlation between measured ozone

and secondary particulate matter. Many

of the same factors affecting

concentrations of ozone also affect

concentrations of secondary particulate

matter because similarities exist in

83 Depending on the context, "multi-pollutant"

can be defined in different ways. In this context we

are defining multi-pollutant modeling as

simultaneous modeling of ozone, PM 2.5, key air

toxics, and regional haze. Future multi-pollutant

models may include the ability to model a broader

array of air toxics as well as greenhouse gases.

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sources of precursors for both

pollutants. For example, emissions of

NON may lead to formation of nitrates,

which affect both ambient ozone and

PM 2.5 levels and impair visibility. Many

VOCs (such as toluene) are air toxics

and may also be sources or precursors

for both ozone and organic particles. In

addition, the presence of ozone itself

may be an important factor affecting

secondary particle formation.

Because of these relationships,

models and data analysis intended to

address ozone could be beneficial for

use in addressing PM 2.5 and visibility

impairment. When performing a multipollutant assessment, the modeling

should take into account previously

implemented or planned measures to

reduce ozone, PM 2.

5 and regional haze.

States that undertake multi-pollutant

assessments as part of their attainment

demonstration should consider

assessing the impact of their ozone

strategies on PM 2.

5 and visibility

impairment to ensure that optimal

emission reduction strategies are

developed for the three programs to the

extent possible. This could facilitate

addressing all of these pollutants in a

more cost effective manner.

States may also find it desirable to

assess the impact of ozone, PM 2.

5 and/

or regional haze control strategies on

toxic air pollutants regulated under the

CAA or under state air toxic initiatives.

Given the relationships that exist

between air toxics and the formation of

ozone and PM 2.

5, states may find that

controls can be selected to meet goals

for ozone and/or PM 2.

5 attainment as

well as those of specific air toxic

programs.

Q. How does this proposed rule apply to

tribes?

Section 301(d) of the CAA authorizes

the EPA to approve eligible Indian tribes

to implement provisions of the CAA on

Indian reservations and other areas

within the tribes' jurisdiction. The

Tribal Authority Rule (TAR) (40 CFR

part 49), which implements section

301(d) of the CAA, sets forth the criteria

and process for tribes to apply to the

EPA for eligibility to administer CAA

programs. Among the programs that

tribes may seek to administer are Tribal

Implementation Plans (TIP),84 which are

submitted to the EPA for approval.

However, unlike states, tribes are not

required to develop implementation

plans.85 Under the TAR, the EPA

determined that tribes are not required

84 Not to be confused with Transportation

Improvement Programs (also abbreviated "TIPs");

the context will determine the meaning.

85 70 FR 71666 (November 29, 2005).

to meet plan submittal and

implementation deadlines in the CAA,

e.g., the deadlines specified in CAA

sections 110(a)(1), 172(a)(2), 182, 187

and 191.86

Where tribes do seek to develop and

administer TIPs, the TAR provides

flexibility for tribes in the preparation of

a TIP to address the NAAQS. See, e.g.,

40 CFR 49.7(c). The TAR also states that

the EPA has authority to promulgate

federal implementation plan (FIP)

provisions, as necessary and

appropriate, to protect air quality if

tribes choose not to implement those

provisions. The EPA may find it

necessary and appropriate to develop a

FIP to reduce emissions from sources in

Indian country where the tribe has not

developed a TIP to address an air

quality problem.

It is important for states and tribes to

work together to coordinate planning

efforts where nonattainment areas

include both Indian country and state

land. Coordinated planning in these

areas will help ensure that the planning

decisions made by the states and tribes

complement each other and that the

nonattainment area makes reasonable

progress toward attainment and

ultimately attains the 2008 ozone

NAAQS. In reviewing and approving

individual TIPs and SIPs, we will

determine if together they are consistent

with the overall air quality needs of an

area.

States have an obligation to notify

other states in advance of any public

hearing(s) on their state plans if such

plans will significantly impact such

other states. 40 CFR 51.102(d)(5). Under

section 301(d) of the CAA and the TAR,

tribes may become eligible to be treated

in a manner similar to states (TAS) for

this purpose. Affected tribes with this

status must also be informed of the

contents of such state plans and given

access to the documentation supporting

these plans. In addition to this

mandated process, we encourage states

to extend the same notice to all affected

tribes, regardless of their TAS status.

Executive Orders and the EPA's

Indian policies generally call for the

EPA to coordinate and consult with

tribes on matters that affect tribes.

Executive Order 13175, titled,

"Consultation and Coordination with

Indian Tribal Governments" requires

the EPA to develop a process to ensure "meaningful and timely input by tribal

officials in the development of

regulatory policies that have Tribal

implications." In addition, the EPA's

policies include the agency's 1984

Indian Policy relating to Indian tribes

86 See 40 CFR 49.4(a).

and implementation of federal

environmental programs, the April 10,

2009, Office of Air Quality Planning and

Standards guidance "Consulting with

Indian Tribal Governments," and the

"EPA Policy on Consultation and

Coordination With Indian Tribes." 87

Consistent with these policies, the

EPA intends to meet with tribes on

activities potentially affecting the

attainment and maintenance of the 2008

ozone NAAQS in Indian country,

including our actions on SIPs. As such,

it would be helpful for states to work

with tribes with land that is part of the

same air quality area during the SIP

development process and to coordinate

with tribes as they develop their SIPs.

R. What are the requirements for the

Ozone Transport Region (OTR)?

The Phase 2 Rule codified the

requirements applicable to the OTR for

the 1997 ozone NAAQS in 40 CFR

51.916. The EPA is proposing to adopt

the same requirements for the 2008

ozone NAAQS, except that the

submission date for OTR RACT SIPs

would be the same as proposed under

the RACT section of this preamble for

nonattainment areas. That is, we are

proposing to require that states submit

the RACT SIPs required under section

182(b)(2) within the final timeline we

adopt based on the two SIP submittal

options detailed in section III.A of

today's proposal. (See section III.D of

this preamble for additional information

on RACT timeframes.)

S. Are there any additional

requirements related to compliance and

enforcement?

The EPA is not proposing any specific

regulatory provisions related to

compliance and enforcement. Section

172(c)(6) requires nonattainment SIPs to

"include enforceable emission

limitations, and such other control

measures, means or techniques . . . as

well as schedules and timetables for

compliance, as may be necessary or

appropriate to provide for attainment

.T

EPA's current guidance,

"Guidance on Preparing Enforceable

Regulations and Compliance Programs

for the 15 Percent Rate-of-Progress Plans

(EPA-452/R-93-005, June 1993)" is still

relevant to rules adopted for SIPs under

the 2008 ozone NAAQS and should be

consulted for purposes of developing

appropriate enforceable nonattainment

plan provisions under section 172(c)(6).

87 For a copy of this 2011 policy, see http://

www.epa.gov/tribal/pdf/cons-and-coord-withindian-tribes-policy.pdff.

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T. What are the requirements for

addressing emergency episodes?

The EPA proposes that the existing

requirements for emergency episodes

(40 CFR part 51, subpart H) would also

apply to the 2008 ozone NAAQS.

Subpart H requires SIPs to identify areas

by priority classification and to contain

contingency plans to prevent pollutant

concentrations from reaching levels that

would cause significant harm to the

health of persons. The significant harm

level for ozone had been established as

0.6 ppm, 2-hour average (40 CFR

51.151). This level remains appropriate

for the 2008 ozone NAAQS.

U. How does the "Clean Data Policy"

apply to the 2008 ozone NAAQS?

The EPA, in its Phase 1 Rule, codified

its long-standing interpretation under

the Clean Data Policy in a regulation.

Under 40 CFR 51.918, a determination

of attainment suspends the obligation to

submit attainment planning SIP

elements for the 1997 ozone NAAQS.

An EPA determination that the area

attained the 1997 ozone NAAQS

suspended the obligation to submit any

attainment-related SIP elements not yet

approved in the SIP, for so long as the

area continued in attainment.

The EPA in this rulemaking is

proposing to apply this same approach

with respect to determinations of

attainment for the 2008 ozone NAAQS.

Moreover, in order to reflect the

intended ongoing status of the Clean

Data Policy and to consolidate in one

regulation a comprehensive provision

applicable to determinations of

attainment for the current and former

ozone NAAQS, the EPA proposes, after

revocation of the 1997 ozone NAAQS, to

replace 40 CFR 51.918 with proposed 40

CFR 51.1118. Section 51.1118 applies

essentially the same language as 51.918.

If finalized, 40 CFR 51.1118 will apply

to a determination of attainment that is

made with respect to any revoked or

current ozone NAAQS-the 1-hour, the

1997 or the 2008 ozone NAAQS. The

new section 51.1118, like section

51.918, will set forth the regulatory

consequences of an EPA determination,

made after notice-and-comment

rulemaking, that an area designated

nonattainment for an ozone standard

has air quality attaining that standard.

Upon such a determination by the EPA,

the requirements for the area to submit

an attainment demonstration, associated

reasonably available control measures,

reasonable further progress plans,

contingency measures and other

attainment-related SIP elements for that

NAAQS, shall be suspended until such

time as the area is redesignated to

attainment, at which time the

requirements no longer apply, or until

the EPA determines that the area has

again violated that ozone NAAQS, in

which case the requirements are again

applicable. The EPA intends to apply

the provision for the 2008 ozone

NAAQS in a similar manner as it did for

the 1997 ozone NAAQS. Because the

proposed section 51.1118 merely

incorporates the continuation of the

EPA's long-held interpretation (Clean

Data Policy) for the 1-hour ozone

NAAQS, which was embodied in

regulation 51.918 for the 1997 ozone

NAAQS, it is appropriate to apply it in

the context of the 2008 ozone NAAQS

as well as the 1997 and 1-hour ozone

NAAQS. On July 10, 2009, the U.S.

Court of Appeals for the District of

Columbia upheld the section 51.918

regulatory provision. (NRDC v. EPA, 571

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

V. What assistance programs is the EPA

considering for implementation of the

2008 ozone NAAQS?

For purposes of the 1997 ozone

NAAQS, the EPA established the Early

Action Compact (EAC) program. Under

the EAC program, certain areas that

were violating the 1997 ozone NAAQS

at the time of designation were allowed

to enter into an EAC agreement, and

were given a deferred effective date for

their area designation in order to allow

time for the area to meet the terms of the

agreement. The EPA does not have

plans to proceed with an EAC program

for the 2008 ozone NAAQS.

Nevertheless, the EPA believes there

are significant advantages for states,

tribes and local agencies to take steps to

reduce emissions as early as possible.

First and foremost, early reductions

help to achieve cleaner air sooner, and

help to ensure continued health

protection. Secondly, early steps could

help an area avoid a nonattainment

designation in the first place, or for an

area eventually designated as

nonattainment, early reductions could

result in a lower nonattainment

classification. In addition, early action

to improve air quality can help an

eventual nonattainment area,

particularly an area that has never been

designated nonattainment before,

establish working relationships between

key stakeholders. Our expectation is

that early actions to reduce emissions in

such areas would be less resourceintensive than actions taken once a

nonattainment designation has been

made, since at that point the

implementation of controls would need

to occur in conjunction with actions to

comply with other requirements such as

nonattainment NSR and transportation

conformity.

If an area uses 2011 as the baseline

year for its RFP plan, as we are

proposing as the default approach in

this rule, any reductions that were made

before 2011 can be fully reflected in the

baseline for the area's attainment plan.

Reductions achieved after 2011 due to

measures in the area's SIP may receive

emission reduction credit, subject to

CAA requirements.

Under the 8-Hour Ozone Flex

program for the 1997 ozone NAAQS

(begun in 2006), the EPA worked with

interested attainment areas to take

proactive steps that would keep them in

attainment.88 The EPA is now offering a

new early emission reduction program

to attainment areas called "Ozone

Advance," which is similar to the

Ozone Flex program. 89 The EPA

initiated the Ozone Advance program in

April 2012. Additional information on

the Ozone Advance program for the

2008 ozone NAAQS is provided in a

separate guidance document that is

available at www.epa.gov/

ozonepmadvance.

W. What is the deadline for states to

submit SIP revisions to address the CAA

section 185 penalty fee provision for

Severe and Extreme areas?

Under section 185, major stationary

sources of VOC and NOx in a Severe or

Extreme ozone nonattainment area are

subject to penalty fees for emissions in

excess of 80 percent of the source's

baseline amount of emissions if such an

area fails to attain the NAAQS by its

attainment date. The baseline amount

for a source is based on its applicable

emission limit(s) or actual emissions in

the attainment year, whichever is lower.

Section 182(d)(3) provides that by

December 31, 2000, the state shall

submit a plan revision which includes

the provisions required under section

185 for the 1-hour ozone NAAQS. Thus,

the CAA provided slightly more than 10

years for submission of the fee program

SIP revision for areas designated as

88 See http://www.epa.govlttnloarpgltll

memoranda/o3flexguideines.pdf.

89 Areas that signed up for Ozone Advance prior

to designations for the 2008 ozone NAAQS are able

to continue to participate in the program even if

they were subsequently designated nonattainment

and classified as Marginal. These areas may

continue to participate in the program until such

time as they may be reclassified to a higher

classification. Participation in the Ozone Advance

program does not remove any nonattainment area

requirements from these areas. The current

Marginal areas in the Ozone Advance program are

Baton Rouge, LA; DeSoto County, MS (part of

Memphis, TN-AR-MS); and Upper Green River

Basin, WY. The Uinta Basin, UT area, which was

designated "Unclassifiable," is also taking part in

the program.

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nonattainment and classified as Severe

or Extreme by operation of law in 1990

for the 1-hour ozone NAAQS. We are

proposing that states with areas initially

classified as Severe or Extreme for the

2008 ozone NAAQS would be required

to submit a section 185 SIP no later than

10 years after the effective date of

designation and classification for the

2008 ozone NAAQS. For areas that are

reclassified to Severe or Extreme at any

other time, the EPA will establish an

appropriate fee program SIP submission

deadline as part of the reclassification

action.

IV. What is the EPA proposing to

address anti-backsliding issues related

to transition from the 1997 ozone

NAAQS to the 2008 ozone NAAQS?

A. General Background

This section sets forth background for

today's proposal regarding areas that

will be subject to anti-backsliding

requirements for the 1-hour ozone

NAAQS and/or the 1997 ozone NAAQS,

and the requirements that will apply to

these areas after revocation of the 1997

ozone NAAQS. "Anti-backsliding"

provisions are designed to ensure that

for existing ozone nonattainment areas

that are designated nonattainment for

the revised and more stringent ozone

NAAQS, (1) there is protection against

degradation of air quality (e.g., the areas

do not "backslide"), (2) the areas

continue to make progress toward

attainment of the new, more stringent

NAAQS, and (3) there is consistency

with the ozone NAAQS implementation

framework outlined in subpart 2 of Part

D of the CAA.

The CAA contains several provisions

indicating Congressional intent not to

allow a state to alter or remove

provisions from an approved

implementation plan if the revision

would reduce air quality protection.

Section 193 of the CAA prohibits

modification of a control requirement in

effect or required to be adopted as of

November 15, 1990 (the date of

enactment of the 1990 CAA

Amendments), unless such a

modification would ensure equivalent

or greater emissions reductions. CAA

section 172(e), which addresses

relaxations of a NAAQS, requires

protections for areas that have not

attained a NAAQS prior to a relaxation,

by requiring controls which are at least

as stringent as the controls applicable in

nonattainment areas prior to any such

relaxation. Section 110(1) provides that

a SIP revision cannot be approved if it

will interfere with attainment or other

CAA requirements. Under section

175A(d), an area that is redesignated to

attainment 90 may, with an appropriate

showing, cease to implement a measure

that is contained in the SIP at the time

of redesignation, but only if that

measure is retained as a contingency

measure in the area's maintenance

plan. 9 1

B. Background on Transition From the

1-Hour to the 1997 Ozone NAAQS

The following discussion addresses

the transition policies the EPA adopted

in the 2004 Phase 1 Rule for

implementation of the 1997 ozone

NAAQS; the legal challenges to that

rule; and the resulting court decision in

South Coast, which directed the EPA to

provide 1-hour ozone NAAQS antibacksliding requirements for

nonattainment NSR, section 185 fees

and section 172(c)(9) and 182(c)(9)

contingency measures for failure to

attain the 1-hour ozone NAAQS by the

applicable attainment date or to make

reasonable further progress toward

attainment of that standard.

In its Phase 1 Rule, the EPA stated

that the 1-hour ozone NAAQS would be

revoked (i.e., no longer apply) 1 year

after the effective date of initial area

designations for the 1997 ozone

NAAQS. 92 The EPA also included antibacksliding requirements in the Phase 1

Rule to address the transition between

the two standards.

In developing the Phase 1 Rule, the

EPA recognized that Congress did not

directly address how anti-backsliding

requirements should apply where the

EPA replaces a prior NAAQS with a

more stringent NAAQS, as occurred

90 Nonattainment areas that were redesignated to

attainment with an approved section 175A

maintenance plan are referred to throughout this

document as "maintenance" areas. CAA section

175A(a) requires an area to develop a ten-year

maintenance plan in order to be redesignated to

attainment. CAA section 175A(b) requires an area

to submit a second ten-year plan 8 years after

approval of the first plan.

91 Unimplemented requirements in the SIP or

those shown to be unnecessary for maintenance can

be shifted to the contingency measures portion of

the SIP upon redesignation. "Procedures for

Processing Requests to Redesignate Areas to

Attainment," Memorandum from John Calcagni,

Director, Air Quality Management Division,

September 4, 1992; "State Implementation Plan

(SIP) Requirements for Areas Submitting Requests

for Redesignation to Attainment of the Ozone and

Carbon Monoxide (CO) National Ambient Air

Quality Standards (NAAQS) On or After November

15, 1992," Memorandum from Michael H. Shapiro,

Acting Assistant Administrator for Air and

Radiation, September 17, 1993. As discussed

elsewhere in this document, an exception is made

for nonattainment NSR, which can be removed from

the SIP completely, and need not be retained as a

contingency measure after redesignation to

attainment. (See discussion in text below.)

92 See section IV.G of this proposal for a

discussion of the timing of the 1997 ozone NAAQS

revocation and related anti-backsliding

requirements.

when the EPA replaced the 1-hour

ozone NAAQS with the 1997 ozone

NAAQS. 93 However, in section 172(e),

Congress did address anti-backsliding

requirements for when the EPA replaces

a NAAQS with a less stringent NAAQS.

In the absence of any express

Congressional direction regarding antibacksliding where a NAAQS is replaced

with a more stringent NAAQS, the EPA

concluded that it was reasonable to look

to the principles set forth in section

172(e) for purposes of the transition

from the 1-hour ozone NAAQS to the

1997 ozone NAAQS.

The Phase 1 Rule codified antibacksliding provisions governing the

transition from the revoked 1-hour

ozone NAAQS to the 1997 ozone

NAAQS in 40 CFR 51.905(a). These

provisions, as promulgated, retained

certain nonattainment area requirements

specified under section 182 of the CAA,

as those requirements applied for the 1-

hour ozone NAAQS. The retained

requirements, which were defined as "applicable requirements" in the ozone

implementation regulations, 94

continued to apply to areas that were

designated nonattainment for the 1-hour

ozone NAAQS as of the date that

NAAQS was revoked, and that were also

designated nonattainment for the 1997

ozone NAAQS as of that same date. The

1-hour ozone NAAQS requirements that

the EPA retained as applicable

requirements were the following: (1)

RACT; (2) I/M programs; (3) Major

source applicability cut-offs for

purposes of RACT; (4) Rate of progress

(ROP) reductions; (5) Stage II vapor

recovery; (6) the Clean fuels fleet

program under section 183(c)(4) of the

CAA; (7) Clean fuels for boilers under

section 182(e)(3) of the CAA; (8)

Transportation control measures (TCMs)

during heavy traffic hours as provided

under section 182(e)(4) of the CAA; (9)

Enhanced (ambient) monitoring under

section 182(c)(1) of the CAA; (10)

Transportation controls under section

182(c)(5) of the CAA; (11) Vehicle miles

traveled provisions under section

182(d)(1)(A) of the CAA; (12) NON

requirements under section 182(f) of the

CAA; and (13) Attainment

demonstration (or an alternative as

provided for under 40 CFR section

51.905(a)(1)(ii)).

Under the Phase 1 Rule, those 1-hour

nonattainment areas would remain

subject to the anti-backsliding

provisions until they were redesignated

93 While there was the possibility of an area

meeting the 1997 ozone NAAQS while exceeding

the 1-hour ozone NAAQS, in almost all instances

the 1997 ozone NAAQS was the more stringent of

the two.

94 See 40 CFR 51.900(f).

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to attainment for the 1997 ozone

NAAQS. In order for an area to be

redesignated for the 1997 ozone

NAAQS, the state would need to show

that the applicable nonattainment

requirements for the 1-hour ozone

NAAQS had been satisfied with respect

to that area.

Upon redesignation of an area to

attainment for the 1997 ozone NAAQS,

a state could request that 1-hour antibacksliding provisions contained in the

SIP be shifted to the contingency

measures portion of the SIP, based on a

showing that active implementation of

these measures was not necessary for

attainment or maintenance of the

NAAQS and that such a revision would

be consistent with section 110(1). 40

CFR 51.905(b). (Provisions in the

contingency measures portion of the

maintenance SIP are not actively

implemented, but are measures the state

may implement if the area were to

violate the standard again.95) The court

in South Coast did not vacate the EPA's

regulations concerning these thirteen

"applicable requirements."

The Phase 1 Rule also provided that

three requirements applicable under the

1-hour ozone NAAQS would no longer

apply after revocation of that NAAQS:

Nonattainment NSR, section 185 fee

requirements and section 172(c)(9) and

182(b)(9) contingency measures for

failure to attain the 1-hour ozone

NAAQS by the applicable attainment

date or to make reasonable further

progress toward attainment of the

standard. See 40 CFR 51.905(e).96 As a

result of the South Coast challenge to

the Phase 1 Rule, the court vacated the

regulatory provisions which had stated

that these three obligations would no

longer apply for purposes of the 1-hour

ozone NAAQS upon revocation of that

standard. See South Coast, 900-904.

The following sections discuss how the

EPA has addressed these three

provisions since the South Coast

decision.

C. Background on Nonattainment NSR

On October 3, 2007, the EPA issued

a memorandum indicating that the

vacatur of the nonattainment NSR

provisions in the Phase 1 Rule by the

South Coast court meant that states with

95 States may adjust control strategies in the SIP

or maintenance plan if they can demonstrate that

the revision will not interfere with attainment or

maintenance of the NAAQS, or any other CAA

requirements. See CAA sections 175A and 110(1).

Section 175A(d) of the CAA requires that

contingency measures in the maintenance plan

include all measures in the area's SIP before that

area was regesignated to attainment.

96 The fee obligations are also briefly addressed in

section 181(b)(4), which cross-references the more

detailed provisions found in section 185.

1-hour nonattainment areas that were

subject to the anti-backsliding

provisions remain subject to the

obligation to include in their SIPs major

source applicability thresholds and

offset ratios consistent either with their

nonattainment classification for the 1-

hour ozone NAAQS or with their

designation and classification for the

1997 ozone NAAQS, whichever is

higher, as of the effective date of

designation as nonattainment for the

1997 ozone NAAQS. 97

Thereafter, in a separate proposed

rulemaking action in 2010, the EPA

proposed revised regulations regarding

treatment of major source thresholds

and offset ratios for areas that were

designated nonattainment for the 1-hour

ozone NAAQS at the time of designation

as nonattainment for the 1997 ozone

NAAQS. See "Proposed Rule to

Implement the 1997 Ozone National

Ambient Air Quality Standard: New

Source Review Anti-Backsliding

Provisions for Former 1-Hour Ozone

Standard," August 24, 2010, 75 FR

51960 (hereinafter "NSR AntiBacksliding Proposed Rule"). The EPA

proposed that 1-hour ozone NAAQS

nonattainment NSR requirements would

apply in a manner similar to the

requirements specifically listed as "applicable requirements" in the Phase

1 Rule.

The NSR Anti-Backsliding Proposed

Rule further proposed that in situations

where an area's classification under the

1-hour ozone NAAQS was higher than

its classification under the 1997 ozone

NAAQS, (1) the obligation to implement

nonattainment NSR requirements

associated with the area's classification

under the 1-hour ozone NAAQS would

continue to apply after the revocation of

the 1-hour ozone NAAQS until the area

is redesignated to attainment for the

1997 ozone NAAQS, and (2) once the

obligation to implement 1-hour ozone

NAAQS nonattainment NSR ceases to

apply, the state may request removal of

the 1-hour ozone NAAQS

nonattainment NSR requirements,

without retaining them as contingency

measures. The EPA also requested

comment on an alternate proposal that,

if certain conditions were met, would

allow a state to request removal of the

1-hour nonattainment NSR

requirements prior to redesignation of

97 Memorandum from Robert J. Meyers, Principal

Deputy Administrator, Office of Air and Radiation,

to EPA Regional Administrators, October 3, 2007,

"New Source Review (NSR) Aspects of the Decision

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

Columbia on the Phase 1 Rule to Implement the 8-

Hour Ozone National Ambient Air Quality

Standards (NAAQS)."

the area to attainment for the 1997

ozone NAAQS.

The EPA has not finalized the

proposed NSR Anti-Backsliding Rule,

and does not intend to do so. This

proposal replaces and supersedes that

proposal, and the final rule will address

all outstanding NSR anti-backsliding

issues for both the 1-hour and 1997

ozone NAAQS. These include how

ongoing obligations to implement antibacksliding requirements pertaining to

NSR thresholds and offset ratios under

the 1-hour and 1997 ozone NAAQS can

be terminated, in light of revocation of

the 1-hour ozone NAAQS and the

impending revocation of the 1997 ozone

NAAQS.

D. Background on Section 185 Fees

Section 185 of the CAA applies to

areas classified as Severe or Extreme for

the 1-hour ozone NAAQS. This section

states that if such an area fails to attain

the 1-hour ozone NAAQS by the

applicable attainment deadline,98 each

major stationary source of VOC and

NON 99 located in the area is required to

pay a fee to the state for each calendar

year following the attainment year for

emissions above a baseline amount. 100 If

the EPA determines that an area

attained the standard as of the

applicable attainment date, then the

program does not take effect, even if the

area subsequently violates that standard

in a later year.

On January 5, 2010, the EPA issued a

memorandum 101 that addressed the

obligation of states with Severe or

Extreme 1-hour ozone NAAQS

nonattainment areas that did not attain

by their attainment dates to collect fees

from major sources. The memorandum

discussed options for the EPA approval

of SIPs that included an equivalent

alternative program to the section 185

fee program specified in the CAA under

98 Under the 1990 CAA Amendments,

nonattainment areas had until November 15 of the

indicated year to attain: Marginal-1993;

Moderate-1996; Serious-1999; Severe-15-2005,

Severe-17-2007, Extreme-2010.

99 While section 185 expressly mentions only

VOC, section 182(f) extends the application of this

provision to NOx, by providing that "plan

provisions required under [subpart D] for major

stationary sources of [VOC] shall also apply to

major stationary sources . . . of [NOx]."

100 See section III.W of this proposal for a

discussion of baseline amount. See also CAA

section 185(b)(2) for the definition of baseline

amount.

101 Memo from Stephen D. Page to Regional Air

Division Directors, Jan. 5, 2010, "Guidance on

Developing Fee Programs Required by Clean Air

Act Section 185 for the 1-Hour Ozone NAAQS."

The EPA had previously issued guidance on

baseline emissions under section 185.

Memorandum from William T. Harnett, Director,

Air Quality Policy Division, to EPA Regional Air

Division Directors, March 21, 2008.

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the principles of section 172(e),

including an "attainment alternative."

The EPA stated that it would use federal

notice-and-comment rulemaking

procedures and seek public comment on

any future approval of such alternative

plans.

On March 5, 2010, the Natural

Resources Defense Council (NRDC)

petitioned the U.S. Court of Appeals for

the District of Columbia Circuit to

review the 2010 Stephen D. Page

guidance memorandum on section 185

fee programs. NRDC argued that the

EPA violated the Administrative

Procedures Act by issuing the guidance

without notice-and-comment

rulemaking, and that both the section

185 alternate fee program and the

"attainment alternative" in the guidance

violated the CAA. Despite the fact that

the EPA stated that approval of an

alternative program would need to go

through individual notice and comment

rulemaking, the court concluded that

the section 185 fee program guidance

amounted to a rulemaking that should

have provided notice and an

opportunity to comment. The court thus

vacated and remanded the EPA's

guidance. NRDCv. EPA, 643 F.3d 311

(D.C. Cir. July 2011).

Although the court vacated the 2010

guidance memorandum on procedural

grounds, it did not prohibit alternative

programs, stating that "neither the

statute nor our case law obviously

precludes that alternative." Id at 332.

However, the court did express its

disapproval of one alternative that was

based in part on attainment of the 1997

ozone NAAQS. The court concluded

that it would be impermissible to

terminate an area's obligations under

section 185 for the revoked 1-hour

ozone NAAQS based solely on

attainment of the 1997 ozone NAAQS.

NRDC, 643 F.3d at 313. The EPA has

taken into account the NRDC court's

decision in developing the EPA's

current approach to terminating antibacksliding requirements for 1-hour

ozone NAAQS section 185 fees, and that

approach is reflected in today's proposal

regarding terminating those antibacksliding requirements for both the

1997 and 1-hour ozone NAAQS.

At this time, a relatively small group

of areas are affected by uncertainties

surrounding implementation and

termination of 1-hour ozone NAAQS

section 185 obligations. Separate

rulemakings regarding individual 1-

hour ozone NAAQS Severe and Extreme

areas may resolve those issues before

this implementation rule is finalized.

For areas subject to section 185 antibacksliding requirements for the 1997

ozone NAAQS, this implementation

rulemaking will have no near-term

impact. The earliest attainment deadline

for areas designated Severe or Extreme

for that standard is 2019. Moreover, as

yet no SIP submittals to establish

section 185 penalty fee programs for the

1997 ozone NAAQS have become due.

In sum, the EPA's proposed approach

to section 185 anti-backsliding

requirements for the 1997 ozone

NAAQS (which will be described below

in section IV.H.2) should be viewed in

the context of (1) EPA's ongoing efforts

to address the section 185 antibacksliding requirements for individual

1-hour ozone NAAQS Severe and

Extreme areas in separate rulemakings,

and (2) the fact that for 1997 ozone

NAAQS Severe and Extreme areas, no

fees can be triggered until 2020 (the

calendar year after 2019).

E. Background on the Contingency

Measures Requirement

In response to the South Coast

decision, the EPA issued a final

regulation on May 14, 2012 (77 FR

28424), which added nonattainment

area contingency measures for failure to

attain or meet RFP milestones (section

172(c)(9) and 182(c)(9) contingency

measures)102 for the 1-hour ozone

NAAQS to the list of "applicable

requirements" in 40 CFR 51.900(f).

These contingency measures were

required for failure to meet an RFP

milestone or to attain the 1-hour ozone

NAAQS by the area's attainment date

for the 1-hour ozone NAAQS.103 The

EPA is similarly proposing in this

implementation rulemaking to include

an anti-backsliding requirement for

nonattainment area contingency

measures for failure to attain or to meet

an RFP milestone for the 1997 ozone

NAAQS by the applicable deadlines for

that NAAQS.

F. What is the EPA proposing regarding

anti-backsliding requirements for the 1-

hour and 1997 ozone NAAQS?

We discuss here the EPA's proposed

anti-backsliding requirements for the 1-

hour and the 1997 ozone NAAQS in the

context of implementing the 2008 ozone

NAAQS. With the 2008 ozone NAAQS,

102 These nonattainment area contingency

measures are not to be confused with maintenance

plan contingency measures for areas redesignated to

attainment under CAA section 175A(d).

103 The January 16, 2009, proposal (74 FR 2936)

did not address when section 185 and NSR antibacksliding requirements would be removed,

indicating that the EPA would issue a separate

Federal Register notice providing guidance on

those issues. As discussed elsewhere, the EPA

addressed nonattainment NSR anti-backsliding in

its 2010 proposal (August 24, 2010, 75 FR 51960),

and addressed section 185 in the 2010 guidance

that has since been vacated.

as with the 1997 ozone NAAQS, the

EPA strengthened rather than relaxed

the ozone NAAQS. The transition from

the 1997 to the 2008 ozone NAAQS is

a straightforward lowering of the level

with no change in the form of the

standard, so it is unambiguous that the

2008 ozone NAAQS is always more

stringent-never more lenient-than the

1997 ozone NAAQS. In these

circumstances, section 172(e) on its face

does not apply. In proposing the

following anti-backsliding requirements,

we look therefore to the principles but

not to the letter of CAA section 172(e).

G. Timing of 1997 Ozone NAAQS

Revocation and Related Antibacksliding Requirements

This section discusses the revocation

of the 1997 ozone NAAQS and the

application of anti-backsliding

requirements for that NAAQS and for

the previously-revoked 1-hour NAAQS.

The EPA is proposing to revoke the

1997 ozone NAAQS on the date the

final SIP Requirements Rule for the

2008 ozone NAAQS is published in the

Federal Register for all purposes other

than transportation conformity, where it

has already been revoked. See proposed

revision to 40 CFR 50.10(c).

The EPA believes it is appropriate to

revoke rather than retain the 1997

standard for all remaining purposes.' 0 4

The EPA has already taken final action

revoking the 1997 primary and

secondary ozone NAAQS for

transportation conformity purposes

only. 05 106 The EPA explained its

rationale for this action in the notice

proposing revocation of the 1997 ozone

NAAQS in the context of conformity.107

The EPA's action ensures that only one

ozone NAAQS-the more protective

2008 ozone NAAQS-applies, rather

than having two standards, one of

which the agency has determined is

insufficiently protective, apply

concurrently. The EPA relies on similar

reasoning to support today's proposal to

revoke the 1997 ozone NAAQS for all

purposes.

At the time the EPA promulgated the

2008 ozone NAAQS, the Administrator

determined that the 1997 ozone NAAQS

104 When the EPA revises a NAAQS, the prior

NAAQS is not automatically revoked. Accordingly,

both the 1997 ozone NAAQS and the more stringent

2008 ozone NAAQS are active standards unless and

until the EPA takes action to revoke the previous

1997 ozone NAAQS.

105 77 FR 30160, 30162, May 21, 2012.

1

0 6 The EPA's authority to revoke the standard for

transportation purposes only has been challenged.

To ensure that the 1997 ozone NAAQS is revoked

for all purposes, today's proposal would revoke that

standard for all purposes for which it has not yet

been revoked.

107 77 FR 8197, 8205, February 14, 2012.

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was no longer sufficient to protect

public health and the environment with

an adequate margin of safety and that it

was therefore necessary to establish a

more stringent standard.108 In

determining how to transition from the

1997 ozone NAAQS to the more

stringent 2008 ozone NAAQS, the EPA

is now presented with the same

situation that we faced with the

transition from the 1-hour ozone

NAAQS to the more stringent 1997

ozone NAAQS. For that transition, our

Phase 1 Rule for the 1997 ozone NAAQS

revoked the 1-hour ozone NAAQS for

all purposes. 10 9 The Phase 1 Rule also

established comprehensive antibacksliding provisions to ensure that the

level of protection provided by

requirements for the 1-hour ozone

NAAQS would remain in place as areas

transitioned to implementing the more

stringent 1997 ozone standard. The D.C.

Circuit upheld EPA's decision,

recognizing EPA's "authority to revoke

the one-hour standard so long as

adequate anti-backsliding measures are

introduced." 110

We believe that revoking the 1997

ozone NAAQS, as we have already done

for transportation conformity, is now

appropriate for all other purposes. The

EPA believes that the permanent

retention of two conflicting standards,

differing only in the ozone

concentrations they allow, could lead to

unnecessary complexity and that it is

inappropriate to retain the 1997

standard of .08 ppm, which is less

protective of human health than the

2008 standard of .075 ppm. The EPA's

reason for establishing the new standard

as requisite to protect public health was

its conclusion that the old standard was

not adequate. Revoking rather than

retaining that 1997 ozone NAAQS will

facilitate a seamless transition from

demonstrating compliance with the

1997 ozone NAAQS to demonstrating

compliance with the more health and

welfare protective 2008 ozone NAAQS.

This approach will ensure the most

efficient use of state and local resources

in working toward attainment of the

standard that EPA has determined is

requisite to protect public health.

Moreover, we believe that following the

same course we followed in revoking

the hourly standard by requiring

adequate anti-backsliding measures will

ensure continued momentum in states'

efforts toward cleaner air.

Until the 1997 ozone NAAQS is

revoked, that NAAQS remains in effect,

108 73 FR 16436, March 27, 2008.

109 See 69 FR 23954.

110 South Coast Air Quality Management District

v. EPA, 472 F.3d at 899.

in parallel with the 2008 ozone NAAQS,

and continues to apply independently

and by its own terms. Similarly, prior to

its revocation, implementation of the

1997 ozone NAAQS continues under

the Phase 2 Rule (Subpart X, 40 CFR

51.900 et seq.) as modified in

accordance with the South Coast

decision. After the 1997 ozone NAAQS

is revoked, however, the EPA is

proposing that the anti-backsliding

requirements for that NAAQS, as

proposed in this rulemaking, will

become applicable.

After the revocation of a standard the

EPA no longer intends to take action to

designate or to redesignate areas for that

standard. The extent of continued

implementation of a revoked standard

derives from administration of antibacksliding requirements for that

standard. After revocation of the 1997

ozone NAAQS, and because the 1-hour

ozone NAAQS has already been

revoked, obligations under these

NAAQS will be defined by the antibacksliding requirements that are

specified for these NAAQS in the final

rule for today's proposal.

Upon revocation of the 1997 ozone

NAAQS, the EPA proposes that antibacksliding provisions would apply to

an area in accordance with its

designations and, as applicable, its

nonattainment classifications, for the

1997 (and, if applicable, 1-hour) ozone

NAAQS at the time of revocation of the

1997 ozone NAAQS. The sections below

discuss in detail the applicable

requirements and how they would

apply to areas with various designations

and classifications for the 2008 and the

revoked 1997 and 1-hour ozone

NAAQS.

After revocation of the 1997 standard,

the designations for that standard are no

longer in effect, and the sole

designations that remain in effect are

those for the 2008 ozone NAAQS.

However, the EPA is retaining the

listing of the designations of areas for

the revoked 1997 ozone NAAQS in 40

CFR part 81, for the sole purpose of

identifying the anti-backsliding

requirements that may apply to the

areas as a result of these designations at

the time of revocation. Accordingly,

such references to historical

designations for the revoked standard

should not be viewed as current

designations under CAA section 107.

The Phase 1 Rule revoked the 1-hour

ozone NAAQS for all purposes 1 year

after the effective date of initial area

designations for the 1997 ozone

NAAQS. The South Coast court rejected

a challenge to this revocation, and

determined that the EPA had the

authority to revoke the 1-hour ozone

NAAQS, subject to adequate antibacksliding provisions.

The EPA is today proposing to

exercise its authority to revoke the 1997

primary and secondary ozone NAAQS

for all remaining purposes upon the

publication of the final SIP

Requirements Rule in the Federal

Register. The EPA's Classifications

Rule "' for the 2008 ozone NAAQS

provides that the 1997 ozone NAAQS

will be revoked 1 year after the effective

date of initial area designations for the

2008 ozone NAAQS for purposes of

transportation conformity. Therefore,

the 1997 ozone NAAQS will be revoked

for all purposes upon the publication of

the final SIP Requirements Rule in the

Federal Register. However, the EPA is

taking comment on alternate dates for

revocation of the 1997 ozone NAAQS

for all purposes other than

transportation conformity. Alternate

suggestions should explain the basis for

the suggested date and be accompanied

by technical and legal justifications.

We are proposing, for purposes of the

transition from the 1997 ozone NAAQS

to the 2008 ozone NAAQS, that an area

that was designated as nonattainment

for the 1997 ozone NAAQS and also is

designated as nonattainment for the

2008 ozone NAAQS, and which has not

been redesignated to attainment for the

1997 ozone NAAQS prior to the

effective date of revocation of that

NAAQS, will be subject to antibacksliding requirements for the 1997

ozone NAAQS. To the extent that 1-

hour ozone NAAQS anti-backsliding

requirements are also applicable SIP

requirements in such an area at the time

the 1997 ozone NAAQS is revoked, we

are proposing that those requirements

will also remain applicable.112

The timing that EPA is proposing

means that any 2008 ozone NAAQS

nonattainment area that was previously

a 1997 ozone NAAQS nonattainment

area, but has been redesignated to

attainment for the 1997 ozone NAAQS

by the time of revocation of that

NAAQS, will not be subject to the antibacksliding requirements for the 1997 or

the 1-hour ozone NAAQS. This is

because when an area has been

redesignated to attainment for an ozone

NAAQS while that NAAQS is in effect,

it has fulfilled all applicable

11177 FR 30160, May 21, 2012.

112 As a practical matter, where a 2008 ozone

nonattainment area is subject to anti-backsliding

requirements for both the 1997 ozone NAAQS and

the 1-hoar ozone NAAQS, the anti-backsliding

requirements that will apply to the area for NSR

and Title V will be those corresponding to the

higher of the two nonattainment classifications that

the area possessed with regard to the 1997 and 1-

hour ozone NAAQS at the time of revocation of the

respective ozone NAAQS.

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requirements for that NAAQS, including

applicable anti-backsliding

requirements for any prior ozone

NAAQS. The area is, therefore, not

subject to anti-backsliding requirements

for the revoked ozone NAAQS or any

prior ozone standard(s).

During the period prior to revocation

of the 1997 ozone NAAQS, that NAAQS

will remain in effect and applicable

requirements for that NAAQS, and any

applicable 1-hour ozone NAAQS antibacksliding requirements, will apply as

usual. Redesignations and

reclassifications for the 1997 ozone

NAAQS may continue up to the time of

revocation of that standard.

This approach of establishing antibacksliding requirements is consistent

with the EPA's actual practice in the

transition from the 1-hour to the 1997

ozone NAAQS. 1 13 It would not make

sense to select a point prior to

revocation of the 1997 ozone NAAQS

for the anti-backsliding requirements

associated with that standard to take

effect, since prior to revocation of the

1997 ozone NAAQS, that NAAQS

remains in effect and still applies

directly, and an area can still be

redesignated to attainment for that

standard or reclassified to a higher

nonattainment classification.114 In fact,

the status of many areas with respect to

designation and classification for the

1997 ozone NAAQS has already

changed since promulgation of the 2008

ozone NAAQS. Thus, the EPA

concludes that establishing the date of

revocation of the 1997 ozone NAAQS as

the time for anti-backsliding

requirements for that NAAQS to take

effect is reasonable and consistent with

past practice under the Phase 1 Rule.

H. What are the applicable requirements

for anti-backsliding purposes during the

transition to the 2008 ozone NAAQS?

The EPA in this rulemaking is

proposing to establish subpart AA, 40

CFR 51.1100 et seq., which will provide

comprehensive anti-backsliding

requirements for transition to the 2008

ozone NAAQS. The EPA is proposing

that, upon revocation of the 1997 ozone

NAAQS, subpart X, 40 CFR 51.900 et

seq., be effectively replaced by the

proposed subpart AA.

The proposed subpart AA addresses

anti-backsliding requirements for both

113 Although section 51.905(a) specified that the

anti-backsliding requirements "attached" at the

time of designation for the 1997 ozone NAAQS,

areas were still able to redesignate to attainment for

the 1-hoar ozone NAAQS up to the date of

revocation of that standard.

114 See, for example, the redesignations to 1-hoar

attainment for Phoenix (70 FR 34362, June 14, 2005)

and Atlanta (70 FR 34660, June 15, 2005).

the previously revoked 1-hour ozone

NAAQS and the 1997 ozone NAAQS in

a consolidated and streamlined fashion.

Areas designated nonattainment for the

2008 ozone NAAQS and also designated

nonattainment for either or both the 1-

hour or 1997 ozone NAAQS at the time

of revocation of the 1997 ozone NAAQS

will be subject to section 51.1100(o).

This provision specifies the list of

"applicable requirements" that will

apply as anti-backsliding requirements

for the transition from the 1997 ozone

NAAQS to the 2008 ozone NAAQS. At

the time of revocation of the 1997 ozone

NAAQS, section 51.1100(o) will replace

40 CFR 51.900(f). The EPA is proposing

as "applicable requirements" the

requirements that were previously listed

in section 51.900(f) (excepting only

Stage II vapor recovery),1 5 as well as

the three anti-backsliding requirements

that were included as a result of the

South Coast decision: nonattainment

NSR thresholds and offset ratios,

nonattainment contingency measures

for failure to attain by the applicable

deadline or to meet RFP milestones, and

section 185 fee program requirements.

Since the South Coast decision, the EPA

has been including these three

requirements as anti-backsliding

requirements for the 1-hour ozone

NAAQS for the purpose of discharging

its obligations to effectuate antibacksliding for that standard. Proposed

section 51.1100(o) contains definitions

of the EPA's proposed applicable

requirements for the transition from the

1997 ozone NAAQS to the 2008 ozone

NAAQS. These applicable requirements

as proposed in section 51.1100(o)

include the following: (1) RACT; (2)

vehicle I/M programs; (3) Major source

applicability cut-offs for purposes of

RACT; (4) ROP and/or RFP reductions;

(5) the Clean fuels fleet program under

section 183(c)(4) of the CAA; (6) Clean

fuels for boilers under section 182(e)(3)

of the CAA; (7) Transportation control

measures during heavy traffic hours as

provided under section 182(e)(4) of the

CAA; (8) Enhanced (ambient)

monitoring under section 182(c)(1) of

the CAA; (9) Transportation controls

under section 182(c)(5) of the CAA; (10)

Vehicle miles traveled provisions under

section 182(d)(1)(A) of the CAA; (11)

NOx requirements under section 182(f)

of the CAA; (12) Attainment

15 Under CAA section 202(a)(6), the EPA found

that onboard refueling vapor recovery (ORVR)

systems are in widespread use in the motor vehicle

fleet and waived the section 182(b)(3) Stage I vapor

recovery requirement for Serious and higher ozone

nonattainment areas on May 16, 2012 (77 FR

28772). Thus, in this proposal, the section 182(b)(3)

Stage I requirement is omitted from the list of

applicable requirements in 51.1100(o).

demonstrations; (13) Nonattainment

contingency measures, (14)

Nonattainment NSR requirements, and

(15) Section 185 requirements for Severe

and Extreme areas.

A number of areas designated

nonattainment for the 2008 ozone

NAAQS may retain residual attainmentrelated SIP obligations for the 1997

ozone NAAQS. It is possible that SIP

revisions to address obligations under

the 2008 ozone NAAQS can also satisfy

similar outstanding SIP obligations to

prevent backsliding for revoked 1997

and 1-hour ozone NAAQS. For areas

with residual attainment-linked

requirements for the revoked 1997

ozone NAAQS, the EPA has taken into

account the close relationship in timing

and nature of attainment-linked

obligations for the 1997 and 2008

standards. The 2008 ozone NAAQS

incorporates and supersedes the 1997

ozone NAAQS, and the attainment

deadline for the 2008 ozone NAAQS is

near-term. Thus the EPA believes it is

critical to avoid the duplication of effort

that requiring separate SIP submissions

for the 1997 and 2008 ozone NAAQS

would create. The best course would be

to integrate, wherever possible, the

attainment planning requirements for

the revoked and current ozone NAAQS.

At this time of scarce resources the

states and the EPA should strive to

develop SIP submissions that achieve

the goals of both the 1997 and the 2008

ozone NAAQS. For example, areas that

have not yet fully attained the 1997

ozone NAAQS and have an obligation to

continue meeting planning and control

requirements to attain as expeditiously

as practicable may find it more efficient

to develop plans and controls that

achieve the goals of both the 1997 and

the 2008 ozone NAAQS. The need for

an approach similar to the one EPA took

in the transition from the 1-hour ozone

NAAQS to the 1997 ozone NAAQS is

heightened as we move on to a third

more stringent ozone NAAQS. In the

Phase 1 Rule (69 FR 23975-6), an

attainment-related SIP submission to

satisfy a requirement for the 1997 ozone

NAAQS could also satisfy an

outstanding 1-hour ozone NAAQS SIP

requirement. At this time it is even more

important than in the previous

transition to coordinate efforts and

avoid overlapping and redundant

planning efforts.

In this proposal, the EPA is also

proposing a different approach to the

Stage II Vapor Recovery requirement

than was contained in 51.900(f)(5) in the

Phase 1 Rule. In May 2012,116 the EPA

11677 FR 28772, May 16, 2012.

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determined that ORVR systems are in

widespread use nationally, and the EPA

waived the CAA section 182(b)(3)

requirement for states to adopt and

submit programs for implementation of

the Stage II vapor recovery system at

GDFs located in Serious and above

ozone nonattainment areas, pursuant to

authority provided in CAA section

202(b)(6). As a result of this waiver,

states may seek EPA approval to

discontinue implementing an existing

Stage II Control Program for GDFs in

Serious and above ozone nonattainment

areas, subject to (1) the submittal of an

approvable demonstration showing that

removing the program from the SIP

would not interfere with attainment and

maintenance of the NAAQS pursuant to

section 110(1), and (2) the submittal of

an approvable demonstration under

section 193 for Stage II programs that

were in effect in 1990. Accordingly, in

this proposed rule, the EPA is proposing

a revision to the existing antibacksliding rules and not including the

Stage II vapor recovery program

previously required by CAA section

182(b)(3) in the list of measures that

need to be retained for anti-backsliding

purposes. Areas that already have Stage

II programs in their SIPs could remove

these programs if they make the

appropriate showings as detailed in

CAA sections 110(1) and 193, following

EPA approval of such SIP revisions.117

These revisions would not need to move

Stage II requirements to contingency

measures when Stage II is removed from

the active SIP. Today's proposed rule

would have no effect on the continuing

independent CAA section 184(b)(2)

requirement for OTR states to

implement Stage II programs or

measures capable of achieving

emissions reductions comparable to

those achieved by Stage II.

The EPA discusses below the three

anti-backsliding requirements that

proposed section 51.1100 would add to

the applicable requirements originally

contained in section 51.900(f) of the

rule.

1. NSR

a. NSR for Areas Designated

Nonattainment for the 2008 Ozone

NAAQS

In response to the South Coast case,

the EPA has been requiring areas

designated nonattainment for the 1997

ozone NAAQS that are subject to antibacksliding requirements for the 1-hour

117 See U.S. EPA Office of Air Quality Planning

and Standards, "Guidance on Removing Stage I

Gasoline Vapor Control Programs from State

Implementation Plans and Assessing Comparable

Measures," August 7, 2012 (EPA-457/B-12-001).

NAAQS to implement the

nonattainment NSR requirements that

applied at the time of revocation of the

1-hour ozone NAAQS, where such

requirements are more stringent than

those based on the area's classification

for the 1997 ozone NAAQS. In keeping

with its practice following the South

Coast decision, the EPA is proposing

that nonattainment NSR be added to the

list of applicable requirements. Thus,

for areas designated nonattainment for

the 2008 ozone NAAQS, nonattainment

NSR will be required for any prior

ozone standard for which they remain

designated nonattainment. As explained

later in this preamble, however, areas

that remained designated nonattainment

for the 1-hour ozone NAAQS at the time

of its revocation, but were subsequently

redesignated to attainment for the 1997

ozone NAAQS, would not be subject to

this obligation. In practical terms, the

obligation to implement nonattainment

NSR requirements associated with two

or more standards means that the area

must implement the thresholds and

offset ratios associated with the highest

nonattainment classification. In the

section on termination of antibacksliding requirements below, the

EPA is proposing two options for lifting

1997 and 1-hour ozone NAAQS

nonattainment NSR requirements for

areas designated nonattainment for the

2008 ozone NAAQS: redesignation for

the 2008 NAAQS, or a "redesignation

substitute" for the 1997 and/or 1-hour

ozone NAAQS. The EPA is also

soliciting comment from the public on

additional routes to lifting

nonattainment NSR requirements tied to

the revoked 1997 and 1-hour ozone

NAAQS, in areas where the 2008

nonattainment NSR requirements would

remain in place. These additional

processes, like the redesignation

substitute option the EPA is proposing,

would operate to lift the nonattainment

NSR requirements for the revoked

NAAQS while retaining the NSR

requirements for the 2008 ozone

NAAQS. The EPA asks that commenters

provide supporting legal rationales for

any additional option, taking into

account the DC Circuit's decision in

South Coast. The timing and basis for

termination of nonattainment NSR

requirements for the revoked NAAQS is

discussed below in section IV.J.

b. NSR for Areas Designated Attainment

for the 2008 Ozone NAAQS

This proposal also addresses whether

nonattainment NSR must continue to be

implemented in areas initially

designated attainment 118 for the 2008

ozone NAAQS, but that were still

designated nonattainment for the 1997

ozone NAAQS as of the effective date of

their attainment designations under the

2008 ozone NAAQS. Some of the areas

that have been designated as attainment

for the 2008 ozone NAAQS are still

designated as nonattainment for the

1997 ozone NAAQS.

Until the 1997 ozone NAAQS is

revoked, we propose that nonattainment

NSR would continue to apply in areas

designated as attainment for the 2008

ozone NAAQS but nonattainment for

the 1997 ozone NAAQS. This approach

is consistent with the exemption in the

PSD regulations at 40 CFR 51.166(i)(2)

and 52.21(i)(2), which provides that

PSD requirements do not apply with

respect to a particular pollutant if the

new source or modification is located in

an area designated as nonattainment

under CAA section 107 as to that

pollutant.

We propose that after the 1997 ozone

NAAQS is revoked, areas designated as

attainment for the 2008 ozone NAAQS

would not be required to retain in their

SIPs nonattainment NSR programs for

ozone. Instead, such areas would be

required to implement Prevention of

Significant Deterioration (PSD)

requirements, consistent with their

attainment designation for the 2008

ozone NAAQS, notwithstanding any

remaining references to nonattainment

designations for the 1997 ozone NAAQS

in 40 CFR Part 81.

When we revoke the 1997 ozone

NAAQS, the designations for that

standard have no further effect except as

reference for anti-backsliding purposes.

We are retaining references to the

designations for the revoked standard in

40 CFR part 81 solely for antibacksliding purposes for areas

designated nonattainment for the 2008

ozone NAAQS. Accordingly, such

references to historical nonattainment

designations for the revoked standard

should not be viewed as current

"nonattainment designation[s] under

CAA § 107" within the meaning of 40

CFR 51.166(i)(2) and 52.21(i)(2) and,

therefore, do not trigger the exemption

from PSD requirements otherwise

resulting from those provisions.

While the EPA interprets the present

regulatory text in 40 CFR 51.166(i)(2)

and 52.21(i)(2) in the manner described

above, these provisions do not expressly

say that a nonattainment designation for

a revoked standard does not trigger the

118 Applies to areas designated either

"unclassifiable/attainment" (hereafter referred to as

"attainment" areas) or "unclassifiable," as defined

in CAA § 107(d)(1)(A).

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exemption. To avoid confusion in the

regulatory text and to clarify its intent,

we are alternatively proposing that an

amendment to 40 CFR 51.166(i)(2) and

52.21(i)(2) would be appropriate to

make it clear that a nonattainment

designation for a revoked NAAQS, once

the revocation becomes effective in an

area, would not trigger the PSD

exemption in those provisions and

would not prevent application of PSD

requirements for that pollutant. We

request comment on whether such an

amendment to 40 CFR 51.166(i)(2) and

52.21(i)(2) is necessary or whether it is

sufficient for the EPA to articulate the

interpretation of these provisions

described in the preceding paragraph.

We also request comment on how such

an amendment to 40 CFR 51.166(i)(2)

and 52.21(i)(2) should be worded.

The EPA took a similar approach in

rules governing the transition from the

1-hour to the 1997 ozone NAAQS. This

approach would not apply to areas

located in the OTR and designated

attainment, since the CAA requires

these areas to remain subject to

Moderate area nonattainment NSR

requirements. As explained more fully

in the NSR Anti-Backsliding Proposed

Rule, the EPA is proposing this

approach because the EPA does not

interpret the South Coast decision as

requiring that NSR requirements

associated with a previous standard be

retained in areas designated attainment

for the current standard. See 75 FR

51964. The issue before the court in

South Coast involved the substitution of

one set of nonattainment NSR

requirements for another, not the

replacement of nonattainment NSR with

PSD requirements. The EPA's

determination that nonattainment NSR

does not apply to areas designated

attainment for the current NAAQS and

thus is not required to remain in the SIP

for such areas is consistent with

Greenbaum v. EPA, 370 F.3d at 536.119

2. Section 185 Fee Programs

States with nonattainment areas

classified as Severe or Extreme for a

prior NAAQS at the time that NAAQS

is revoked remain subject to the

119 "It would make little sense for [nonattainment

NSR] to be included in the post-attainment SIP, as

the Clean Air Act... explicitly states that

attainment area SIPs must include a PSD program."

requirements of section 185 with respect

to that NAAQS. This approach is

consistent with the July 2011 NRDC

court decision on the EPA's previouslyissued section 185 guidance. As

previously discussed, EPA has been

working with states to address the

section 185 requirements for the 1-hour

ozone NAAQS. The timeline for section

185 requirements for the 1997 ozone

NAAQS differs from that for the 1-hour

ozone NAAQS; the earliest attainment

deadline for a Severe area under the

1997 ozone NAAQS is 2019, and no

1997 ozone penalty fee program has yet

become due.120 As in the case of NSR,

the section below on termination of

anti-backsliding requirements proposes

two alternative approaches to

terminating section 185 anti-backsliding

requirements for both the 1-hour and

1997 ozone NAAQS. Section IV.J goes

into detail on the two proposed routes

to terminate section 185 antibacksliding requirements: redesignating

to attainment for the 2008 ozone

NAAQS, or providing a redesignation

substitute for the revoked NAAQS

triggering the section 185 requirement.

3. Contingency Measures Under

Sections 172(c)(9) and 182(c)(9)

The EPA's recent final rulemaking

(May 14, 2012, 77 FR 28424) set forth

the EPA's rationale for including, as an

applicable 1-hour ozone NAAQS antibacksliding requirement, nonattainment

area contingency requirements for

failure to attain the 1-hour NAAQS by

the applicable deadline or to meet RFP

milestones with respect to that NAAQS.

The EPA is proposing to adopt the same

contingency requirements for failure to

attain the 1997 ozone NAAQS by the

applicable deadlines or to meet RFP

milestones with respect to that NAAQS,

based on the same rationale that the

agency articulated in its May 14, 2012

rulemaking.

L Application of Transition

Requirements to Nonattainment and

Attainment Areas

1. Introduction

This section discusses how the EPA's

proposed transition requirements will

120 Under the 1997 ozone NAAQS, areas

classified Severe-15 must attain by 2019, Severe-17 areas by 2021, and Extreme areas by 2024.

apply to various types of areas. The

general principle is to apply transition

requirements depending on how the

area is designated-attainment or

nonattainment-for the 2008 ozone

NAAQS, while taking into account the

area's status with respect to prior

standards.121 Table 2 provides a

summary of the four transition

scenarios, and the proposed

requirements that would apply for each

of those scenarios. 122 The following

sections describe each scenario in

detail. In Table 2 and in the subsequent

sections, for purposes of determining an

area's transition requirements, we first

look to the area's designation and

classification for the 2008 ozone

NAAQS. We then determine the area's

designation and classification status for

the 1997 ozone NAAQS as of the

effective date the 1997 ozone NAAQS is

revoked. Finally, where appropriate, we

determine whether anti-backsliding

requirements for the 1-hour ozone

NAAQS apply in the area and, if so, we

determine the area's designation and

classification status for the 1-hour ozone

NAAQS as of the date the 1-hour

NAAQS was revoked.123 For ease of

reference, throughout the remainder of

this preamble, we refer to an area's

designation and classification for the

1997 ozone NAAQS at the time of

revocation of that NAAQS, simply as

the area's "designation" and

"classification" for the 1997 ozone

NAAQS. Similarly, we refer to an area's

designation and classification for the 1-

hour ozone NAAQS at the time of

revocation of that NAAQS (June 15,

2005 for most areas), simply as the

area's "designation" and

"classification" for the 1-hour ozone

NAAQS.

1

2 1 One area, the Uintah Basin, UT, was

designated as "unclassifiable," and for purposes

here would be treated like an area designated

"attainment."

122 Section IV.J details the proposed routes to

satisfy the anti-backsliding requirements listed in

Table 2.

123 If the nonattainment area was initially

designated attainment for the 1997 ozone NAAQS

or was redesignated to attainment ("Maintenance")

for the 1997 ozone NAAQS prior to the date of

revocation of the 1997 NAAQS, then the area has

already fulfilled any applicable 1-hour antibacksliding requirements. For ease of reference, we

refer to these areas as "Maintenance" areas.

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TABLE 2-2008 OZONE NAAQS TRANSITION OBLIGATIONS

Designation for 2008 Designation for previous Proposed NSR/PSD

NAAQS NAAQS (at time of oose Other proposed transition obligations revocation) obligations

1. Attainment ........................ Attainment/Maintenance ..... PSD remains in effect ........ -Area remains subject to existing section 175A

maintenance plan for the previous ozone NAAQS

and requirements already in the SIP, subject to

revision consistent with sections 110(l) and 193.

-Section 175A maintenance plan satisfies maintenance requirement under section 110(a)(1).

2. Attainment ........................ Nonattainment for 1997 Nonattainment NSR in ef- -Area remains subject to measures to meet nonozone NAAQS only; or fect until revocation of the attainment requirements already in its adopted

nonattainment for 1997 1997 ozone NAAQS; SIP. Removable only with a section 110(l) demand 1-hour NAAQS. then PSD applies. onstration and a section 193 demonstration if applicable.

-Two alternatives to address section 110(a)(1)

maintenance provision: (a) Area's approved PSD

SIP satisfies section 110(a)(1) maintenance provision, or

(b) additional maintenance showing under section

110(a)(1).

3. Nonattainment .................. Attainment/Maintenance ..... Nonattainment NSR applies -Area remains subject to existing section 175A

based on 2008 ozone maintenance plan for the previous NAAQS and reNAAQS classification. quirements already in the SIP, subject to revision

consistent with sections 110(l) and 193.

4. Nonattainment .................. Nonattainment for 1997 Nonattainment NSR applies -Area subject to all applicable anti-backsliding reozone NAAQS only; or based on highest applica- quirements for 1-hr and/or 1997 NAAQS.

nonattainment for 1997 ble classification. -Anti-backsliding obligations lifted when the area

and 1-hour ozone either is redesignated to attainment for the 2008

NAAQS. ozone NAAQS, or the EPA approves a redesignation substitute for the revoked 1-hour or 1997

NAAQS

-EPA solicits comment on additional options for lifting anti-backsliding obligations.

2. Requirements for Areas Designated

Attainment for the 2008 Ozone NAAQS

and (i) Maintenance for the 1997 Ozone

NAAQS or (ii) Nonattainment for the

1997 Ozone NAAQS

In this section the EPA considers the

requirements applicable after revocation

of the 1997 ozone NAAQS, to (i) areas

that are designated attainment for the

2008 ozone NAAQS and attainment for

the 1997 ozone NAAQS with an

approved 175A maintenance plan

(hereafter "maintenance for the 1997

ozone NAAQS"), as of the date of

revocation of the 1997 ozone NAAQS,

and to (ii) areas that are designated as

attainment for the 2008 ozone NAAQS

and nonattainment for the 1997 ozone

NAAQS. The EPA is proposing a

preferred approach and an alternative,

less-preferred approach for

requirements for areas that are

designated attainment for the 2008

ozone NAAQS and nonattainment for

the 1997 ozone NAAQS, and a single

approach for requirements for areas that

are designated attainment for the 2008

ozone NAAQS and maintenance for the

1997 ozone NAAQS. Appendix D

contains a full list of these areas.

a. Background and Overview

The Phase 1 Rule for implementation

of the 1997 ozone NAAQS adopted 40

CFR 51.905(c) and (d). These sections

specified requirements applicable to

areas designated attainment for the 1997

ozone NAAQS, and designated

nonattainment or redesignated to

attainment for the 1-hour ozone

NAAQS. These areas were no longer

obligated to adopt any outstanding

applicable measures for the 1-hour

ozone NAAQS. Sections 51.905(c) and

(d) required, however, that these areas

submit, within 3 years of the effective

date of designation as attainment for the

1997 ozone NAAQS, a maintenance

plan under CAA section 110(a)(1) for

the 1997 ozone NAAQS. 12 4 Due to

changes that have occurred since 2004,

the EPA is now proposing as its

preferred approach for an area

designated attainment for the 2008

ozone NAAQS and redesignated to

attainment for the 1997 ozone NAAQS

(as of revocation of the 1997 ozone

NAAQS), that the area's approved 175A

maintenance plan will satisfy its

maintenance plan obligation for the

2008 ozone NAAQS under section

124 This maintenance plan was required to cover

a 10-year period starting at the effective date of

designation and to include contingency measures.

110(a)(1). The EPA is also proposing as

its preferred approach for an area

designated attainment for the 2008

ozone NAAQS and nonattainment for

the 1997 ozone NAAQS (as of

revocation of the 1997 ozone NAAQS),

that the area's approved PSD SIP will

satisfy its maintenance plan obligation

for the 2008 ozone NAAQS under

section 110(a)(1).

The EPA believes this is appropriate

for several reasons. First, many of these

areas are now subject to a number of

national rules which were not

applicable in 2004. These national rules

impose ozone precursor emissions

limits on important emission source

categories, independent of the

provisions of any area-specific

maintenance or anti-backsliding plan for

ozone. These rules include the several

significant mobile source regulations,

emission standards for toxic VOCs,

power plant regulations reducing NOx

emissions, and the Regional Haze

Rule.12 5 Second, since 2004 a number of

125 Mobile source regulations that have begun to

reduce emissions since 2004 include the Tier 2

emissions standards for light-duty vehicles, the

2007 emissions standards for heavy-duty on-road

vehicles, the clean air non-road diesel rule that

covers a wide variety of non-road equipment and

engines, and the locomotive and marine rule that

establishes more stringent emissions standards for

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these areas have also reduced emissions

in order to attain the 1997 and/or 2006

PM 2.5 NAAQS. These PM2.5-related

emissions reductions also help reduce

and limit growth in ozone precursor

emissions. Some of these measures will

produce large reductions during the 10-

year period over which a maintenance

plan could be required. Third, the EPA

anticipates that it will complete the next

review of the ozone NAAQS before any

additional section 110(a)(1)

maintenance plan requirements could

be due with respect to the 2008 ozone

NAAQS. Under these circumstances,

imposing additional section 110(a)(1)

maintenance plan requirements for

areas attaining the 2008 ozone NAAQS

could, without compensating benefit,

create a conflict for state resources

needed to address a more protective

ozone standard. Finally, these areas are

meeting a more protective NAAQS that

is directly comparable in form to the

1997 ozone NAAQS, which was not the

case when the anti-backsliding

requirements for the 1-hour standard

were created.

An area designated attainment for the

2008 ozone NAAQS has already

attained the most stringent existing

standard. Except for the substitution of

PSD for nonattainment NSR

requirements, the area remains subject

to the nonattainment requirements

already approved into the SIP, which

can be revised only upon a showing that

such revision is consistent with CAA

sections 110(1) and 193.126 These

sections prevent any SIP revisions that

would increase emissions of any

pollutant related to a NAAQS unless a

demonstration of continued attainment

and maintenance accompanies the

revision, and thus these sections

effectively function as anti-backsliding

provisions. Finally, because the form of

the 1997 and 2008 ozone NAAQS is the

same, there is no possibility that an area

attaining the 2008 ozone NAAQS could

be violating the 1997 ozone NAAQS,

which is unlike the relationship that

existed between the 1-hour ozone

NAAQS and the 1997 8-hour ozone

NAAQS. Thus, the EPA believes that

designation as attainment for the 2008

ozone NAAQS should result in no

additional new obligations beyond PSD

for this large group of areas, regardless

of their status for prior standards.

As a result of these considerations,

the EPA is proposing an approach more

suited to areas designated attainment for

engines used in locomotives and in marine

applications. 1

26 

It should be noted that transportation

conformity requirements no longer apply in these

areas after the effective date of the revocation of the

1997 ozone NAAQS. (77 FR 30160, May 21, 2012).

the 2008 ozone NAAQS than the

approach contained in the Phase 1 Rule.

Below we describe our proposals for

areas that are designated attainment for

the 2008 ozone NAAQS and designated

(i) maintenance or (ii) nonattainment for

the 1997 ozone NAAQS.

b. Proposals

i. Areas Designated Attainment for the

2008 Ozone NAAQS and Maintenance

for the 1997 Ozone NAAQS

For areas designated attainment for

the 2008 ozone NAAQS and

maintenance for the 1997 ozone NAAQS

(as of the date of revocation of the 1997

ozone NAAQS), the EPA is proposing

that the area's approved section 175A

maintenance plan for the revoked 1997

ozone NAAQS satisfies both its

obligations for maintenance under

section 110(a)(1) for the 2008 ozone

NAAQS and its obligation to submit a

second approvable maintenance plan

under section 175A for the revoked

1997 ozone NAAQS. The EPA's

reasoning is as follows. All areas in this

group are already subject to a section

175A maintenance plan for the revoked

1997 ozone NAAQS, and have been

both redesignated to attainment for the

1997 ozone NAAQS and designated

attainment for the more stringent 2008

ozone NAAQS. As explained elsewhere,

the section 175A maintenance plan for

the 1997 ozone NAAQS satisfies the

anti-backsliding requirements of these

areas for all prior standards. Any further

110(a)(1) maintenance plan requirement

under the 2008 ozone NAAQS would be

unnecessarily burdensome. No revision

to the section 175A maintenance plans

for these areas can be approved unless

it complies with the anti-backsliding

checks in CAA sections 110(1) and 193.

Thus, the EPA believes strongly that

there is no justification for additional

maintenance plan burdens to be

imposed on these areas solely because at

one time they were designated

nonattainment under the revoked 1997

ozone NAAQS. Since these areas were

redesignated to attainment for the 1997

ozone NAAQS prior to its revocation,

the EPA's proposed approach recognizes

and reflects that status.

ii. Areas Designated Attainment for the

2008 Ozone NAAQS and Nonattainment

for the 1997 Ozone NAAQS

The EPA is proposing as its preferred

approach that areas designated

attainment for the 2008 ozone NAAQS

and nonattainment for the 1997 ozone

NAAQS (as of revocation of the 1997

ozone NAAQS) not be required to adopt

any outstanding applicable

requirements for the revoked 1997

standard. This approach is similar to the

approach followed in the Phase 1 Rule.

The EPA also proposes, in a departure

from the Phase 1 Rule, that the

approved PSD SIPs for these areas

satisfy the obligation to submit an

approvable maintenance plan for the

2008 ozone NAAQS under section

110(a)(1). The EPA's rationale for this

approach is as follows: areas designated

attainment for the 2008 ozone NAAQS

and nonattainment for the 1997 ozone

NAAQS (as of revocation of the 1997

ozone NAAQS) have already attained

the most stringent existing standard.

These areas thus have developed

nonattainment SIPs that in combination

with federal measures and emissions

controls in upwind areas have produced

sufficient emissions reductions to

achieve the more protective 2008 ozone

NAAQS. They remain subject to the

1997 nonattainment area requirements

already approved into the SIP, which

can be revised only upon a showing that

such revision complies with the antibacksliding checks in CAA sections

110(1) and 193. At this time, and given

the succession of NAAQS of increasing

stringency that has occurred, the EPA

believes that the burden of developing

an approvable 110(a)(1) maintenance

plan for the 2008 ozone NAAQS would

outweigh any compensating benefit for

an area that is already attaining that

NAAQS and that is subject to prior

nonattainment requirements which are

already incorporated into the SIP.

The EPA is proposing a second, and

less preferred, alternative for areas

designated attainment for the 2008

ozone NAAQS and nonattainment for

the 1997 ozone NAAQS as of revocation

of the 1997 ozone NAAQS. Similar to

the approach taken in the Phase 1 Rule,

under this alternative we propose that

the area be required to show

maintenance for the 2008 ozone

NAAQS. (See proposed regulatory text

section 51.1105.) This maintenance

showing would be due 3 years after the

effective date of designations for the

2008 ozone NAAQS. The maintenance

showing would contain a demonstration

of continued maintenance of the 2008

ozone NAAQS in the area for ten years

from the effective date of the area's

designation as attainment for the 2008

ozone NAAQS. The EPA proposes a

maintenance showing in a form other

than a formal SIP revision. If the EPA

were to adopt this option, the EPA

would provide guidance regarding the

specific elements of the maintenance

showing. The EPA seeks comment on

this option.

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3. Areas Designated Nonattainment for

the 2008 Ozone NAAQS

In the next sections the EPA addresses

the transition requirements for three

distinct groups of areas designated

nonattainment for the 2008 ozone

NAAQS: those which are also

designated nonattainment for the 1997

ozone NAAQS as of the time of

revocation of that NAAQS; those which

are designated maintenance for the 1997

ozone NAAQS as of the time of

revocation of that NAAQS; and those

which are also designated

nonattainment for both the 1997 and the

previously revoked 1-hour ozone

NAAQS as of the time of revocation of

the 1997 NAAQS. See Appendix D for

a list of these areas.

The EPA is proposing that areas

designated nonattainment for the 2008

ozone NAAQS and also designated

nonattainment for the 1997 ozone

NAAQS, or for both the 1997 and the 1-

hour ozone NAAQS, be subject to antibacksliding provisions as interpreted by

51.1105. In particular, we are proposing

that these areas be subject to applicable

requirements for any prior standard for

which they remain designated

nonattainment at the time of revocation

of the 1997 ozone NAAQS. 1 2 7 As was

also the case in the proposed NSR AntiBacksliding Rule, 75 FR 51965, neither

of the EPA's current proposed

approaches to allowing removal of NSR

anti-backsliding requirements for a

previous NAAQS (as discussed in

section IV.J) would have an effect on

any source permit conditions

established during the time period in

which a major NSR program pursuant to

a previous NAAQS was applied. The

NSR regulations do not provide a

mechanism for major NSR permit

conditions to be removed from a permit

or modified when a SIP is later revised

so as to remove or change NSR

thresholds and/or offset requirements

for purposes of future permitting.

Replacement or removal of NSR SIP

provisions does not relieve sources of

their obligations under previously

established permit conditions.

Under this proposed rule, areas that

are designated nonattainment for the

2008 ozone NAAQS and are also

127 We do not include in these two groups any

areas that were redesignated to attainment for the

1997 ozone NAAQS prior to revocation of that

NAAQS. In order to be redesignated for the 1997

ozone NAAQS, the area had to satisfy all applicable

anti-backsliding requirements for the 1-hour ozone

NAAQS. Any 1997 ozone NAAQS nonattainment area that was designated nonattainment for the 1-

hoar ozone NAAQS at time of revocation of the 1-

hoar NAAQS had to meet applicable 1-hoar ozone

NAAQS anti-backsliding requirements in order to

be redesignated to attainment for the 1997 ozone NAAQS.

designated nonattainment for a prior

ozone NAAQS (as of the revocation of

the 1997 NAAQS) will be subject to

applicable requirements for that prior

NAAQS, as well as the pertinent

requirements for the current 2008 ozone

NAAQS. In addition, if a state seeks to

revise any measure already approved

into its SIP for any prior standard, the

revision must comply with the antibacksliding checks in CAA sections

110(1) and 193.

a. Areas Designated Nonattainment for

the 2008 Ozone NAAQS and

Maintenance for the 1997 Ozone

NAAQS

The EPA is proposing that for these

areas, the area's approved section 175A

maintenance plan for the revoked 1997

ozone NAAQS would satisfy the

obligation to submit a second

approvable maintenance plan under

section 175A for the revoked 1997

ozone NAAQS. The EPA's reasoning is

as follows. All areas in this group are

already subject to an approved section

175A maintenance plan for the revoked

1997 ozone NAAQS and have been

redesignated to attainment for the 1997

ozone NAAQS. As explained elsewhere,

the approval of the redesignation and of

the section 175A maintenance plan for

the 1997 ozone NAAQS required the

EPA to determine that the antibacksliding requirements of these areas

for the 1-hour standard, as well as those

requirements applicable for the 1997

standard, have been met. Thus EPA's

approvals of the redesignation request

and the maintenance plan for the 1997

standard signify not only that all

applicable requirements for the 1997

ozone standard have been met, but also

that all applicable anti-backsliding

measures for the 1-hour standard have

been adopted and approved into the

SIP. No revision to the section 175A

maintenance plans for these areas can

be approved unless it complies with the

anti-backsliding checks in CAA sections

110(1) and 193.

These areas are also designated

nonattainment for the more stringent

2008 ozone NAAQS and therefore are

subject to nonattainment NSR and other

nonattainment requirements for their

classification under the more stringent

2008 ozone NAAQS. Thus, the EPA

believes strongly that there is no

justification for a second 175A

maintenance plan to be imposed on

these areas solely because at one time

they were designated nonattainment

under the revoked 1997 ozone NAAQS.

Since these areas were redesignated to

attainment for the 1997 ozone NAAQS

prior to its revocation, the EPA's

proposed approach recognizes and

reflects that status.

b. 2008 Nonattainment Areas Also

Designated Nonattainment for the 1997

Ozone NAAQS But Not for the 1-Hour

Ozone NAAQS

To better understand how the antibacksliding requirements will affect

these areas, it is helpful to review which

areas are included in this group and

their status with respect to attainment of

the 1997 ozone NAAQS. Table 1 in

Appendix D lists the fifteen areas that

are designated nonattainment for the

2008 ozone NAAQS and which, at the

time of proposal of this rule, currently

remain designated nonattainment for

the 1997 ozone NAAQS but not for the

1-hour ozone NAAQS.128 As Table 1 in

Appendix D shows, even though these

areas are currently designated

nonattainment for the 1997 ozone

NAAQS, the EPA anticipates making

final determinations that more than half

of these areas have attained the 1997

ozone NAAQS prior to the date of

revocation of the 1997 ozone NAAQS

pursuant to the EPA's "Clean Data"

regulation, 40 CFR 51.918, and

anticipates that several of these will

have been redesignated to maintenance

for that standard. A determination of

attainment suspends obligations for

states to submit attainment-related

planning requirements for the 1997

ozone NAAQS for those areas as long as

they continue to attain that standard.129

In addition, the EPA notes that two

areas in this group are located in the

OTR. For these areas in particular, a

nonattainment designation for the 1997

ozone NAAQS does not necessarily

indicate current unsatisfactory air

quality or unmet SIP requirements with

respect to that standard. The CAA

requires areas in the OTR, among other

measures, to be subject to certain

nonattainment requirements such as

nonattainment NSR even if they are

redesignated to attainment. Therefore,

even when these areas are eligible for

redesignation to attainment, states often

elect not to submit a redesignation

request for these areas and to undergo

the redesignation process because they

view the workload involved

incommensurate with the benefits of

redesignation. Under the EPA's

proposal, all areas listed in Table 1 of

128 The status of some areas listed in Table 1 with

respect to the 1997 ozone NAAQS may change

between today and the date that NAAQS is revoked.

129 Depending on the area's classification for the

1997 ozone NAAQS and the SIP elements already

approved, the area may still have outstanding 1997

anti-backsliding submission requirements that are

not suspended by 51.918 (e.g., nonattainment NSR,

Subpart 2 RACT requirements).

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Appendix D will be subject to antibacksliding requirements for the 1997

ozone NAAQS, unless they are

redesignated to attainment for that

standard prior to its revocation.

The EPA believes that Table 1 in

Appendix D illustrates that many of the

areas in this category will have already

met the 1997 ozone NAAQS and will

have been redesignated to attainment by

the time it is revoked, and thus after

revocation of that NAAQS, the number

of areas with 1997 anti-backsliding

requirements will be correspondingly

reduced. For other areas which remain

designated nonattainment for the 1997

ozone NAAQS, under the EPA's Clean

Data Regulation, a determination of

attainment suspends the obligation to

submit certain attainment-related

requirements. For those areas which

have already incorporated measures into

their approved SIPs that satisfy the

nonattainment requirements for that

standard, section 110(1) functions as an

anti-backsliding check to require

continued implementation of such

measures unless revised in accordance

with its provisions.

The EPA is also proposing that once

the nonattainment NSR anti-backsliding

requirement(s) for the 1997 ozone

NAAQS cease to apply, since PSD will

then be in effect the state may request

that the corresponding NSR

requirements be removed entirely,

rather than be retained in the SIP as a

maintenance plan contingency

measure. 130

c. 2008 Nonattainment Areas Also

Designated Nonattainment for the 1-

Hour and 1997 Ozone NAAQS

Table 2 in Appendix D lists the 18

areas that are currently designated

nonattainment for all three ozone

NAAQS-the 2008 ozone NAAQS, the

1997 ozone NAAQS and the already

revoked 1-hour ozone NAAQS. More

than half of these areas are located in

either California (9) or Texas (2). The

remaining 7 areas are located in the

East. The EPA has already made final

determinations that all 7 eastern areas

(five large metropolitan areas and two

smaller areas), have attained the 1-hour

ozone NAAQS. A number of the eastern

areas-including Washington, DC,

Philadelphia and Boston-have met

their attainment deadlines for both the

1-hour and 1997 ozone NAAQS,

although they have not undergone the

process to be redesignated to attainment

for these NAAQS. The EPA proposes

130 See 40 CFR 51.905(a)(3), the comparable

provision for transitions from the 1-hoar NAAQS to

the 1997 ozone NAAQS, which allows states to

request that the 1-hoar nonattainment NSR

provisions be removed from the SIP for such areas.

that, upon revocation of the 1997 ozone

NAAQS, the areas listed in this group

will be subject to applicable

requirements, including nonattainment

NSR, for the 1-hour and 1997 ozone

NAAQS (to the extent those

requirements have not been suspended

by a Clean Data Determination), unless

they have been redesignated to

attainment for the 1997 ozone NAAQS

prior to its revocation. Implementation

of measures previously approved into a

SIP for either the 1-hour ozone NAAQS

or the 1997 ozone NAAQS must

continue unless the SIP is revised in

accordance with the anti-backsliding

checks in CAA sections 110(1) and 193.

4. Summary

a. Areas Designated Attainment for the

2008 Ozone NAAQS

Areas designated attainment for the

2008 ozone NAAQS are meeting the

current, most stringent ozone standard.

Section 110(1) functions as an antibacksliding provision to assure that the

state may not revise any previously

approved SIP provision without a

showing that the revision will not

interfere with attainment and

maintenance or any other CAA

requirements.

i. Attainment for the 2008 Ozone

NAAQS and Maintenance for the 1997

Ozone NAAQS

Areas in this category (designated

attainment for the 2008 ozone NAAQS

and maintenance for the 1997 ozone

NAAQS, as of revocation of the 1997

ozone NAAQS) have fulfilled all antibacksliding requirements for prior

standards through their section 175A

maintenance plans, and are not

obligated to meet further requirements

with respect to those standards. The

EPA proposes no further requirements

for these areas, apart from the

requirements in their approved SIPs.

The areas' approved section 175A

maintenance plans for the 1997 ozone

NAAQS also satisfy their obligations for

maintenance plans for the 2008 ozone

NAAQS pursuant to section 110(a)(1).

ii. Attainment for the 2008 Ozone

NAAQS and Nonattainment for the 1997

Ozone NAAQS

In the case of areas designated

attainment for the 2008 ozone NAAQS

and nonattainment for the 1997 ozone

NAAQS (as of revocation of the 1997

ozone NAAQS), a state 131 may, upon

131 This approach would not apply to areas located in the OTR and designated attainment,

since the CAA requires these areas remain subject

to Moderate nonattainment NSR requirements

notwithstanding designation.

revocation of the 1997 ozone NAAQS,

request that any requirements for

nonattainment NSR included in the SIP

for that revoked NAAQS be removed. In

place of nonattainment NSR, these areas

would be required to implement PSD

requirements after the revocation of the

1997 ozone NAAQS. (As explained

above, until the 1997 ozone NAAQS is

revoked, nonattainment NSR applies.)

For these areas, the EPA is proposing

to adopt as its preferred alternative that

the SIP-approved PSD program that

would apply to the area satisfies the

maintenance plan obligation under CAA

section 110(a)(1) for the 2008 ozone

NAAQS; or as a less-preferred

alternative, the EPA is proposing a

requirement for an additional

maintenance showing for the 2008

ozone NAAQS. (See proposed

regulatory text 51.1105(a)(3).)

b. Areas Designated Nonattainment for

the 2008 Ozone NAAQS

i. Areas Designated Nonattainment for

the 2008 Ozone NAAQS and

Maintenance for the 1997 Ozone

NAAQS

The areas in this category are

designated nonattainment for the 2008

ozone NAAQS and were (or will be)

redesignated to attainment for the 1997

ozone NAAQS prior to its revocation.

Thus, they are subject to section 175A

maintenance plans for the 1997 ozone

NAAQS. Having attained and been

redesignated to attainment with a

maintenance plan for the 1997 ozone

NAAQS assures that the EPA has

reviewed the area's approved

maintenance SIP and has determined

that it addresses all applicable antibacksliding requirements for both the

1997 and 1-hour ozone NAAQS. The

EPA believes that the approved SIP for

these areas satisfies applicable antibacksliding requirements. These areas

are subject to nonattainment NSR and

other nonattainment requirements for

their classification under the 2008

ozone NAAQS.

The EPA wishes to solicit comments

on ways to integrate requirements from

existing NAAQS with those of new

NAAQS so as to prevent their

interaction from draining resources

rather than protecting air quality. The

EPA will consider suggestions for

mitigating the cumulative effect of antibacksliding requirements when they

would frustrate, rather than further

efforts to preserve and improve air

quality. The EPA seeks ways to

synthesize and reconcile antibacksliding obligations with current

planning and control efforts, so as to

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preserve scarce resources without

sacrificing air quality protection.

ii. Areas Designated Nonattainment for

the 2008 Ozone NAAQS and Also

Nonattainment for a Prior Revoked

Ozone NAAQS

The EPA is proposing that an area

designated nonattainment for the 2008

ozone NAAQS and nonattainment for

the 1997 ozone NAAQS at the time of

revocation of the 1997 ozone NAAQS

will be obligated to implement the

applicable requirements set forth in

51.1100(o) for the 1997 ozone NAAQS.

If the area is also designated

nonattainment for the 1-hour ozone

NAAQS and subject to applicable

requirements for that NAAQS at the

time of revocation of the 1997 ozone

NAAQS, the state must also continue

addressing those applicable 1-hour

ozone NAAQS requirements for that

area. These areas must apply

nonattainment NSR in accordance with

their highest nonattainment

classification under any ozone standard

for which they are (or were at the time

of revocation) designated

nonattainment, as well as any section

185 requirements for areas classified

Severe or Extreme at the time of

revocation for a prior standard.

J. Satisfaction of Anti-backsliding

Requirements for an Area

The EPA is proposing two acceptable

procedures through which a state may

demonstrate that it is no longer required

to adopt any applicable requirements for

an area which have not already been

approved into the SIP for a revoked

ozone NAAQS, through which it may

remove nonattainment NSR provisions

from the SIP and, upon a showing of

consistency with the anti-backsliding

checks in CAA sections 110(1) and 193

(if applicable), it may shift to the

contingency measures portion of the SIP

requirements which are already

contained in the SIP.132

Procedure 1: Redesignation to

Attainment for the 2008 Ozone NAAQS

The first of these procedures is formal

redesignation of the area to attainment

for the 2008 ozone NAAQS. This

process is an extension of the approach

EPA adopted in the Phase 1 Rule.

Redesignation to attainment for the 2008

ozone NAAQS would allow a state to

terminate and remove from its SIP for an

area any nonattainment NSR

requirements associated with its

classifications under the 2008 ozone

1

3 2

Nonattainment NSR is not required to be

retained in the SIP as a contingency measure. This

is because for attainment areas, PSD replaces

nonattainment NSR.

NAAQS, or under the 1997 or 1-hour

ozone NAAQS, except for areas in the

OTR as noted above. The area would

instead apply PSD. We are proposing

that once the area is redesignated and

the requirement(s) for nonattainment

NSR for the 2008 ozone NAAQS and for

any prior ozone NAAQS cease to apply,

the state may request that the

corresponding NSR requirements be

removed from the SIP rather than be

retained as a maintenance plan

contingency measure. This approach is

consistent with the EPA's longstanding

interpretation of NSR requirements for

areas that are redesignated to

attainment. 133 Redesignation to

attainment would also terminate any

section 185 obligations applicable to a

Severe or Extreme Area for the 2008 or

prior revoked 1997 or 1-hour ozone

NAAQS pursuant to the express terms

of CAA section 185.

For areas subject to anti-backsliding

requirements for revoked standards,

approval of redesignation to attainment

for the 2008 ozone NAAQS signifies that

the state has satisfied its obligations to

adopt anti-backsliding requirements for

the revoked standards. This same

approach was used in the Phase 1 Rule

in requiring redesignations for the 1997

ozone NAAQS to address antibacksliding requirements for the

revoked 1-hour standard. Approval of

the section 175A maintenance plan for

the 2008 ozone NAAQS assures that the

area's SIP includes the provisions

necessary for maintenance of the 2008

ozone NAAQS, which is the most

stringent of the NAAQS. Therefore,

upon redesignation to attainment and

approval of its plan for maintenance of

the 2008 ozone NAAQS, an area has

satisfied its obligations to adopt antibacksliding requirements. All of the

anti-backsliding measures that have

been approved into the SIP must

continue to be implemented unless or

until the state can show that such

implementation is not necessary for

maintenance, consistent with section

110(l) and section 193 if applicable.

This showing may be submitted to the

EPA at the same time as the

maintenance plan, and may be approved

by the EPA in a single action. Subject

to this process, anti-backsliding

requirements contained in the SIP could

be shifted to the contingency measures

portion of a section 175A maintenance

133 See 40 CFR 51.905(a)(3), the comparable

provision for transition from the 1-hour NAAQS to

the 1997 ozone NAAQS, which allows such areas

to request that the 1-hour nonattainment NSR

provisions be removed from the SIP.

plan, or, in limited circumstances 134

removed from the SIP.

Procedure 2: Providing a Redesignation

Substitute for Revoked NAAQS

In addition to the redesignation of an

area to attainment for the 2008 ozone

NAAQS, the EPA is proposing a new

separate route for satisfying antibacksliding requirements for a revoked

1997 or 1-hour ozone NAAQS. The

EPA's experience in implementing the

anti-backsliding requirements in the

Phase 1 Rule has taught that the EPA

should provide an additional

mechanism to allow for satisfaction of

anti-backsliding requirements for a

revoked standard.

Under the Phase 1 Rule, the EPA

lacked a rule-based method that, like

redesignation to attainment for a current

standard, could serve as a

demonstration that applicable

nonattainment requirements for a

revoked standard have been satisfied.

Because the EPA can no longer formally

redesignate areas to attainment for a

standard after that standard is revoked,

the only relief the Phase 1 Rule

provided to areas subject to outdated

anti-backsliding requirements for the

revoked 1-hour ozone NAAQS was

redesignation to attainment for the 1997

ozone NAAQS that replaced it. The lack

of another avenue of relief created

hardship and confusion, particularly

with respect to terminating 1-hour

ozone nonattainment NSR and section

185 program fee requirements.

As we confront the issue again, this

time for areas which, in some cases, are

subject to anti-backsliding requirements

for two revoked ozone standards, the

EPA now recognizes the need to create

an alternative other than formal

redesignation to attainment for the 2008

ozone NAAQS. Unless we provide a

second mechanism, after revocation of

the 1997 ozone NAAQS, areas that

attain and meet requirements for the

revoked 1997 or 1-hour ozone NAAQS

will be treated more harshly than areas

that were redesignated to attainment for

those standards prior to their

revocation. Areas that would otherwise

have qualified for redesignation to

attainment for the 1997 or 1-hour ozone

NAAQS, were it not for their revocation,

would have to wait to be relieved of

outdated requirements until they also

qualify for redesignation to attainment

for the more stringent 2008 ozone

NAAQS. The EPA believes that, under

any view of anti-backsliding for a

revoked standard, it should not mean

1

34 As explained in the text above, nonattainment

NSR requirements can be removed from the SIP

entirely.

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imposing more onerous terms than

those that would apply if the standard

had not been revoked.

Therefore, in addition to formal

redesignation to attainment for the 2008

ozone NAAQS, the EPA is proposing a

separate mechanism for satisfaction of

anti-backsliding requirements for a

revoked 1997 or 1-hour ozone NAAQS.

Because the EPA can no longer formally

redesignate areas for a revoked standard,

under this option, areas would be

eligible to qualify for satisfaction of

applicable requirements for the revoked

1-hour or 1997 ozone NAAQS by

submitting a showing that functions as

a substitute for redesignation to

attainment for that revoked standard,

and insures that the substance of the

redesignation requirements are met. For

a revoked standard, this second

mechanism would serve as a successor

to redesignation to attainment, for

which the area would have been eligible

were it not for revocation. See, for

example, CAA section 185, which states

that the obligation to implement a fee

program terminates when "the area is

redesignated as an attainment area for

ozone." Thus, redesignation to

attainment for the 1-hour ozone NAAQS

if it were still possible would have

clearly relieved the area of this

obligation with respect to that standard.

For an area to show that it qualifies

for this redesignation substitute, the

EPA proposes that the state provide a

showing that addresses the substance of

the redesignation criteria. After noticeand-comment rulemaking on this

showing, the EPA approval of the

showing would have the same effect on

the area's nonattainment antibacksliding obligations as would a

redesignation to attainment for the

revoked standard.

The EPA proposes that the showing,

based on the CAA's criteria for

redesignation to attainment (CAA

section 107(d)(3)(E)), would include:

Attainment of the relevant revoked 1-

hour or 1997 ozone NAAQS; a showing

that attainment was due to permanent

and enforceable emissions reductions;

and a demonstration that the area can

continue to maintain the standard over

the next 10 years. Redesignation criteria

in section 107(d)(3)(E)(ii) and (v) would

be met by the existing approved SIP,

under which the area has attained the

revoked standard, in the context of (and

reinforced by) the requirements for the

new 2008 ozone NAAQS. We believe

that, for a revoked standard, this

approach results in a notice-andcomment process that fulfills the

function of redesignation to attainment

for the purpose of satisfying

requirements for anti-backsliding

requirements for a revoked standard.

See CAA sections 107(d)(3)(E) and

175A. While we do not propose to

require formal SIP submission

procedures, since areas will not actually

be redesignated under this option, the

EPA will conduct notice-and-comment

rulemaking on the state's showings. The

EPA believes that requiring more

elaborate administrative procedures

would needlessly impose burdens on

the area, which will remain subject to

all the formal requirements for

redesignation to attainment for the 2008

ozone NAAQS. Development of these

SIP revisions takes time, and can

impose costs to both industry and the

public. Under these circumstances, it is

consistent with the requirements of antibacksliding for areas under pressure

from multiple environmental

obligations to be relieved of procedural

burdens once the area has attained the

revoked standard. As in the case of a

redesignation to attainment for the 2008

ozone NAAQS, at the time of submitting

a redesignation substitute or at any time

thereafter, a state may request to revise

its SIP so as to cease implementing a

specific nonattainment SIP requirement.

However, this request could not be

granted, and the SIP revised, until the

EPA approves the redesignation

substitute and a demonstration that the

SIP revision meets the requirements of

section 110(1). The EPA is not providing

this mechanism for the purpose of

allowing areas to avoid requirements

needed for attainment and maintenance

of the NAAQS. The showings required,

the provisions of section 110(1), and the

fact that the area remains subject to the

more stringent 2008 ozone NAAQS,

assure that is not the case. It is,

however, important to relieve areas of

requirements that are no longer

necessary, or that can be replaced by

other forms of protection that might

better meet local needs and

circumstances.

The EPA notes that this proposed

option, a redesignation substitute

procedure for the revoked 1-hour or

1997 ozone NAAQS, is more stringent

than an option previously adopted in

the EPA's Phase 1 Rule (69 FR 23982).

It requires a more extensive showing

than mere attainment of the revoked

standard. We also note that section

172(e) does not address when antibacksliding requirements can be

removed. Nor does the South Coast

decision clearly answer this question.

Here, the EPA is proposing a

mechanism that demands more than a

determination of attainment of the prior

standard, and calls for a showing that

addresses redesignation criteria for that

standard. Moreover the process under

this option occurs while the area

remains subject to ongoing requirements

to meet the new more stringent

standard. In this context, the proposed

option is clearly sufficient for its limited

anti-backsliding purpose: It recognizes

and supports the area's progress in

having attained the prior standard due

to permanent and enforceable emissions

reductions, and reinforces continued

attainment by calling for a

demonstration that the area can

maintain the revoked standard.

Under both of the EPA's proposed

procedures, a state seeking to revise its

SIP to remove anti-backsliding measures

from the active portion of its SIP must

demonstrate, pursuant to section 110(1),

that such revision would not interfere

with attainment or maintenance of any

applicable NAAQS, or any other

requirement of the CAA.13 5

The EPA seeks comments on its

proposed approaches for the final rule.

Additionally, as mentioned in section

IV.H.1 above, the EPA is soliciting

comments on additional routes to lifting

nonattainment NSR requirements tied to

the revoked 1997 and 1-hour ozone

NAAQS, where the 2008 nonattainment

NSR requirements would remain in

place. These additional processes, like

the redesignation substitute option the

EPA is proposing, would operate to lift

the nonattainment NSR requirements for

the revoked NAAQS while retaining the

NSR Requirements for the 2008 ozone

NAAQS. The EPA asks that commenters

provide supporting legal rationales for

any additional option, taking into

account the D.C. Circuit's decision in

South Coast.

K. How will the EPA's determination of

attainment ("Clean Data") regulation

apply for purposes of the antibacksliding requirements?

The EPA, in its Phase 1 Rule, codified

its long-standing interpretation under

the Clean Data Policy in a regulation.

Under 40 CFR 51.918, an EPA

determination that an area is attaining

the 1997 ozone NAAQS suspends the

obligation to submit any attainmentrelated SIP elements for the 1997 ozone

NAAQS not yet approved in the SIP, for

so long as the area continues in

attainment of that NAAQS.136 The EPA

135 Likewise to the extent a SIP revision seeking

to remove anti-backsliding measures modifies

control requirements subject to section 193, the

revision would also have to satisfy the requirements

of that provision.

1

3 6 The EPA initially issued the Clean Data Policy

in 1995, "Reasonable Further Progress, Attainment

Demonstration, and Related Requirements for

Ozone Nonattainment Areas Meeting the Ozone

National Ambient Air Quality Standard."

Continued

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in this rulemaking is proposing to apply

this same approach with respect to

determinations of attainment for the

2008 ozone NAAQS. Moreover, in order

to reflect the intended ongoing status of

the Clean Data Policy and to consolidate

in one regulation a comprehensive

provision applicable to determinations

of attainment for the current and former

ozone NAAQS, the EPA proposes, after

revocation of the 1997 ozone NAAQS, to

replace 40 CFR 51.918 with proposed 40

CFR 51.1118. Section 51.1118 applies

essentially the same language as 51.918.

Upon revocation of the 1997 ozone

NAAQS, this section would be

applicable to determinations of

attainment for all ozone NAAQS: the

2008, 1997 and the already revoked 1-

hour ozone NAAQS. If section 51.1118

is finalized, the EPA's long-standing

Clean Data Policy, which has been

upheld by the D.C. Circuit and all other

courts that have considered it, will be

embodied in a regulation applicable,

after revocation of the 1997 ozone

NAAQS, for the purpose of all existing

and prior ozone NAAQS. The planning

elements that are suspended under

section 51.1118 would be the same as

those suspended under existing section

51.918: RFP requirements, attainment

demonstrations, RACM, contingency

measures and other state planning

requirements related to attainment of

the relevant standard. For a Severe or

Extreme area, a section 185 fee program

is by its express terms linked to an

attainment demonstration; therefore

suspension of the obligation to submit

the attainment demonstration also

suspends the obligation to submit the

fee program which is part of the

attainment demonstration (provided

that the EPA has not already determined

that the area failed to attain by its

attainment deadline). The EPA notes

that a determination of attainment

would not, however, suspend

obligations to submit NSR, subpart 2

RACT or emission inventories under

section 182(a)(1).

L. What is the relationship between

implementation of the 2008 ozone

NAAQS and the CAA title V permits

program?

We are proposing, and soliciting

comment on, two alternative approaches

for implementing the title V permit

program for sources in areas designated

nonattainment for the 2008 ozone

Memorandum from John S. Seitz, Director, Office of

Air Quality Planning and Standards, May 10, 1995.

For purposes of the 1997 ozone NAAQS, we

codified that policy at 40 CFR 51.918. This codified

policy was upheld by the D.C. Circuit in AtRDC v.

EPA 571 F.3d 1245 (DC 2009).

NAAQS and subject to anti-backsliding

requirements for a prior ozone NAAQS.

One of the ways a source can become

subject to title V is as a "major source."

See CAA section 502(a); 40 CFR 70.3;

71.3. Furthermore, the definition of

"major source" for purposes of title V

includes, but is not limited to, a "major

stationary source as defined . . . in part

D" of title 1.137 See CAA section

501(2)(B); 40 CFR 70.2; 71.2. Thus,

changes in an area's classification (e.g.,

from "Serious" to "Severe") by

changing the emissions threshold for

being deemed a major source (e.g., from

100 tpy to 50 tpy of a relevant pollutant)

can result in changes in title V

applicability for a source. 138

Between the effective date of area

classifications for the 2008 ozone

NAAQS and the revocation date of the

1997 ozone NAAQS, the major source

thresholds for both the 1997 ozone

NAAQS classifications and the 2008

ozone NAAQS classifications are in

effect under part D of title I,1a9 and

therefore under title V as well. However,

after revocation of the 1997 ozone

NAAQS and the corresponding area

classifications for that NAAQS, the

question arises as to whether only the

major source thresholds for the 2008

ozone NAAQS designations and

classifications are relevant for

determining whether a source is major

for ozone precursors for purposes of title

V.

As discussed below, the EPA is coproposing and soliciting comments on

the following two alternative

approaches for determining whether a

source is a "major stationary source as

137 The EPA notes that sources can become

subject to title V permitting for other reasons, and

nothing in this discussion is intended to suggest

that changes in an area's classification would affect

those other provisions of title V. Accordingly,

sources subject to title V under other provisions

would remain subject to title V for those

independent reasons.

138 It should be noted that, pursuant to CAA

section 503(a), a source is subject to a permit

program on the later of the date that it becomes a

major source and the effective date of a permit

program applicable to the source. Thus, if a

permitting authority with an approved title V

program lacks any authority to permit certain

sources that are major sources subject to title V as

a result of ozone precursor emissions and an area

classification for ozone that has a major source

threshold lower than 100 tpy (e.g., "Serious") then

there is no title V permit program "applicable to the

source" and those sources have no obligation to

apply for a title V permit until after such time as

a permit program becomes applicable to them. The

EPA will work with States to ensure that all

approved title V programs are adequate under the

CAA.

139 It should be noted that the major source

threshold associated with an area's 1-hour ozone

NAAQS classification may be the applicable

threshold for at least some purposes where antibacksliding requirements for the 1-hour ozone

NAAQS apply in the area.

defined in . . .part D" for purposes of

title V after the revocation of the 1997

ozone NAAQS: (1) The major source

threshold for title V in an area is the

same as the major source threshold for

purposes of requirements such as NSR

and RACT (i.e., the major source

threshold associated with the area's

classification for the 1997 and/or 1-hour

ozone NAAQS may be the applicable

threshold for title V purposes, to the

extent that anti-backsliding

requirements for the 1997 and/or 1-hour

ozone NAAQS apply in the area); and

(2) the major source threshold for title

V in the area depends solely on the

area's classification for the 2008 ozone

NAAQS.

In the Phase 2 Rule for implementing

the 1997 ozone NAAQS, the EPA

discussed, in response to comments, its

approach to implementing title V during

the transition to implementation of the

1997 ozone NAAQS. See 70 FR 71689-

71691. Specifically, the EPA recognized

that the Phase 1 Implementation Rule

retained the major source applicability

cut-offs associated with the prior 1-hour

ozone NAAQS for purposes of RACT as

an anti-backsliding requirement. In

other words, an area classified as

Moderate for the 1997 ozone NAAQS,

but Serious for the 1-hour ozone

NAAQS, would be treated as a Serious

area and required to apply major source

RACT to sources above the major source

threshold for Serious areas (i.e., 50 tpy

or more of VOC or NOx). In the Phase

2 Rule, the EPA concluded that the antibacksliding provisions of the Phase 1

Implementation Rule were not relevant

to the definition of major source for

purposes of title V. The EPA suggested

the anti-backsliding provisions could

not change the major source thresholds

for title V, as those are defined in the

statute. See 70 FR 71690.

Following the EPA's promulgation of

the Phase 2 Rule, the U.S. Court of

Appeals for the D.C. Circuit issued its

ruling on challenges to the Phase 1 Rule,

which had established which

requirements for the 1-hour ozone

NAAQS would be retained as antibacksliding requirements, and found

that EPA erred in its approach to antibacksliding by not requiring states to

retain, as applicable requirements, all

control measures that applied for the 1-

hour ozone NAAQS. South Coast Air

Quality Management District v. EPA,

472 F.3d 882 (D.C. Cir. 2006).

Accordingly, today's proposal not only

includes RACT as an anti-backsliding

measure, with the major source

thresholds that applied to areas under

the 1997 ozone NAAQS or 1-hour ozone

NAAQS (i.e., where such thresholds are

more restrictive than the thresholds

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applicable to areas under their

classifications for the 2008 NAAQS), but

also includes the requirement for these

areas to continue to implement NSR

using the major source thresholds that

applied under the 1997 ozone NAAQS

or the 1-hour ozone NAAQS, where

those thresholds are more restrictive

than the threshold applicable to an area

under its classification for the 2008

NAAQS. In light of the D.C. Circuit's

decision in South Coast, and the current

approach of this proposed rule to retain

as anti-backsliding requirements the

RACT and NSR obligations, including

the major source applicability

thresholds associated with prior

NAAQS, the EPA solicits comment on

appropriate approaches to title V

applicability during the transition to the

2008 ozone NAAQS. In summary, EPA

is co-proposing two approaches to

interpreting title V applicability

requirements following revocation of

the 1997 ozone NAAQS: (1) Major

source thresholds for title V should be

the same as the major source thresholds

applicable for purposes of other

requirements such as RACT and NSR;

and (2) major source thresholds for title

V depend solely on the area's

classification for the 2008 ozone

NAAQS.

In particular, the EPA solicits

comments on whether title V should (or

should not) be considered a"control,"

within the meaning of section 172(e) in

light of the fact that title V generally

does not impose new substantive air

quality control requirements but is

intended to assure compliance with all

such existing requirements. The EPA

also solicits comments on the

consistency of the two proposed

approaches with the language and

purposes of the Act, in light of the major

source thresholds under the revoked

standard being retained for

requirements such as RACT and NSR.

The EPA generally solicits comment on

other legal or policy issues relevant to

these two approaches.

Because the EPA would benefit from

public comment on these issues, the

EPA is co-proposing these two

approaches and, following review of

public comments on the issues raised by

each approach, intends to adopt one of

the approaches in the final rule. As part

of the proposal to retain major source

applicability thresholds for the 1997

and/or 1-hour classifications, the EPA is

also proposing to make minor

conforming amendments to the

definition of "major source" in 40 CFR

70.2 and 71.2 by inserting after each

occurrence of the word "classified" in

paragraph (3) the phrase "or treated as

classified" in order to make clear that

sources subject to major source

thresholds pursuant to a revoked

standard for controls are also subject to

the same major source thresholds for

purposes of title V. The EPA further

solicits comments on the proposed

conforming amendments, and on

whether additional changes, different

changes, or no changes to parts 70 and

71, and to approved state title V

programs, would be necessary, if the

EPA concluded that the thresholds

under the 1997 and/or 1-hour

classifications should be retained for

purposes of title V.

V. Statutory and Executive Order

Reviews

A. Executive Order 12866: Regulatory

Planning and Review and Executive

Order 13563: Improving Regulation and

Regulatory Review

This action is not a "significant

regulatory action" under the terms of

Executive Order 12866 (58 FR 51735,

October 4, 1993) and is therefore not

subject to review under Executive

Orders 12866 and 13563 (76 FR 3821,

January 21, 2011).

B. Paperwork Reduction Act

The information collection

requirements in this proposed rule have

been submitted for approval to the OMB

under the Paperwork Reduction Act, 44

U.S.C. 3501 et seq. The Information

Collection Request (ICR) document

prepared by the EPA has been assigned

the EPA ICR number 2347.01.

The EPA is proposing this 2008 ozone

NAAQS SIP Requirements Rule so that

states will know what CAA

requirements apply to their

nonattainment areas when the states

develop their SIPs for attaining and

maintaining the NAAQS. The intended

effect of the SIP Requirements Rule-in

conjunction with the rule on other

aspects of implementation-is to

provide certainty to states regarding

their planning obligations such that

states may begin SIP development. For

purposes of analysis of the estimated

paperwork burden, the EPA assumed

46 140 non-attainment areas, some of

which must prepare an attainment

demonstration as well as submit an RFP

and RACT SIP. The attainment

demonstration requirement would

appear as 40 CFR 51.908 which

implements CAA subsections 172(c)(1),

182(b)(1)(A) and 182(c)(2)(B). The RFP

SIP submission requirement would

appear in 40 CFR 51.910, and the RACT

SIP submission requirement would

appear in 40 CFR 51.912, which

140 77 FR 30088, May 21, 2012.

implements CAA subsections 172(c)(1)

182(b)(2),(c),(d) and (e).

States should already have

information from emission sources, as

facilities should have provided this

information to meet 1-hour and 1997

ozone NAAQS SIP requirements,

operating permits and/or emissions

reporting requirements. Such

information does not generally reveal

the details of production processes. But,

to the extent it may, confidential

business information for the affected

facilities is protected. Specifically,

submissions of emissions and control

efficiency information that is

confidential, proprietary and trade

secret is protected from disclosure

under the requirements of subsections

503(e) and 114(c) of the CAA.

The annual burden for this

information collection averaged over the

first 3 years of this ICR is estimated to

be a total of 120,000 labor hours per

year at an annual labor cost of $2.4

million (present value) over the 3-year

period or approximately $91,000 per

state for the 26 state respondents,

including the District of Columbia. The

average annual reporting burden is 690

hours per response, with approximately

2 responses per state for 58 state

respondents. There are no capital or

operating and maintenance costs

associated with the proposed rule

requirements. Burden is defined at 5

CFR 1320.3(b).

An agency may not conduct or

sponsor, and a person is not required to

respond to, a collection of information

unless it displays a currently valid OMB

control number. The OMB control

numbers for the EPA's regulations in 40

CFR are listed in 40 CFR part 9.

To comment on the agency's need for

this information, the accuracy of the

provided burden estimates and any

suggested methods for minimizing

respondent burden, the EPA has

established a public docket for this rule,

which includes this ICR, under Docket

ID number EPA-HQ-OAR-2010-0885.

Commenters should submit any

comments related to the ICR to both the

EPA and OMB. See the ADDRESSES

section at the beginning of this notice

for where to submit comments to the

EPA. Send comments to OMB at the

Office of Information and Regulatory

Affairs, Office of Management and

Budget, 725 17th Street NW.,

Washington, DC 20503, Attention: Desk

Office for EPA. Since OMB is required

to make a decision concerning the ICR

between 30 and 60 days after June 6,

2013, a comment to OMB is best assured

of having its full effect if OMB receives

it by July 8, 2013. The final rule will

respond to any OMB or public

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comments on the information collection

requirements contained in this proposal.

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 today's rule on small entities, small

entity is defined as: (1) A small business

as defined in the Small Business

Administration's (SBA) regulations at 13

CFR 121.201;) (2) a small 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

impacts of today's proposed rule on

small entities, I certify that this action

will not have a significant economic

impact on a substantial number of small

entities. This proposed rule will not

impose any requirements directly on

small entities. Entities potentially

affected directly by this proposal

include state, local and tribal

governments and none of these

governments are small governments.

Other types of small entities are not

directly subject to the requirements of

this rule because this action only

addresses whether a SIP will provide for

adequate attainment and maintenance of

the NAAQS and meet the obligations of

the CAA.

We continue to be interested in the

potential impacts of the proposed rule

on small entities and welcome

comments on issues related to such

impacts.

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 and tribal governments, in

the aggregate, or the private sector. This

action imposes no enforceable duty on

any state, local or tribal governments or

the private sector. 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 the

UMRA because it contains no regulatory

requirements that might significantly or

uniquely affect small governments. The

CAA imposes the obligation for states to

submit SIPs to implement the 2008

ozone NAAQS; in this rule, the EPA is

merely explaining those requirements.

E. Executive Order 13132: Federalism

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. The

requirement to submit SIP revisions to

meet a revised ozone standard is

imposed by the CAA. This proposed

rule, if made final, would interpret

those requirements as they apply to the

2008 ozone NAAQS. Thus, Executive

Order 13132 does not apply to these

proposed regulation revisions.

In the spirit of Executive Order 13132

and consistent with the EPA policy to

promote communications between the

EPA and state and local governments,

EPA specifically solicits comments on

this proposed action from state and

local officials. In addition, the EPA

intends to meet with organizations

representing state and local officials

during the comment period for this

action.

F. Executive Order 13175: Consultation

and Coordination With Indian Tribal

Governmen ts

This action does not have tribal

implications, as specified in Executive

Order 13175 (65 FR 67249, November 9,

2000). It would not have a substantial

direct effect on one or more Indian

tribes, since no tribe has to develop a

SIP under these proposed regulatory

revisions. Furthermore, these proposed

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 to this action.

Although Executive Order 13175 does

not apply to this action, the EPA met

with tribal officials in developing this

action. Meeting summaries are

contained in the docket for this

rulemaking.

The EPA specifically solicits

additional comment on this proposed

action from tribal officials.

G. Executive Order 13045: Protection of

Children From Environmental Health

and Safety Risks

The EPA interprets EO 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

EO 13045 because it does not establish

an environmental standard intended to

mitigate health or safety risks. These

proposed revisions address whether a

SIP will be adequate to attain and

maintain the NAAQS and will meet the

obligations of the CAA. The NAAQS are

promulgated to protect the health and

welfare of sensitive population,

including children.

H. Executive Order 13211: Actions

Concerning Regulations That

Significantly Affect Energy Supply,

Distribution, or Use

This action is not subject to Executive

Order 13211 (66 FR 28355 (May 22,

2001)), because it is not a significant

regulatory action under Executive Order

12866.

L National Technology Transfer and

Advancement Act

Section 12(d) of the National

Technology Transfer and Advancement

Act of 1995 (NTTAA), Public Law 104-

113, section 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 proposed rulemaking does not

involve technical standards. Therefore,

the EPA is not considering 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

34226
Federal Register/Vol. 78, No. 109/Thursday, June 6, 2013/Proposed Rules

federal agencies, to the greatest extent

practicable and permitted by law, to

make environmental justice part of their

mission by identifying and addressing,

as appropriate, disproportionately high

and adverse human health or

environmental effects of their programs,

policies and activities on minority

populations and low-income

populations in the United States.

The EPA has determined that this

proposed 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 proposed

revisions to the regulations would, if

promulgated, revise the substantive

requirements for SIPs to attain the

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 lowincome populations and are designed to

protect and enhance the health and

safety of these and other populations.

K. Determination Under Section 307(d)

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

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

Administrator proposes to determine

that this action is subject to the

provisions of section 307(d). Under

section 307(d)(1)(V), the provisions of

section 307(d) apply to "such other

actions as the Administrator may

determine."

Appendix A to Preamble

Glossary of Terms and Acronyms

ACT Alternative Control Techniques

(document)

AERR Air Emissions Reporting

Requirements Rule

BACT Best Available Control Technology

CAA Clean Air Act

CAAAC Clean Air Act Advisory Committee

CAIR Clean Air Interstate Rule

CERR Consolidated Emissions Reporting

Rule

CFR Code of Federal Regulations

CO Carbon Monoxide

CSAPR Cross-State Air Pollution Rule

CTG Control Technique Guideline

DOT Department of Transportation

DV Design Value

EMFAC EMissions FACtors (a mobile

emissions model)

ESRP Emissions Statement Reporting

Program

EGU Electricity Generating Unit

EO Executive Order

EPA Environmental Protection Agency

FIP Federal Implementation Plan

GDF Gasoline dispensing facilities

HEDD High Electric Demand Day

ICR Information Collection Requirement

I/M Inspection and Maintenance (i.e., smog

check)

km Kilometers

LAER Lowest Achievable Emission Rate

MACT Maximum Achievable Control

Technology

MCR Mid-course Review

MPO Metropolitan Planning Organization

NAAQS National Ambient Air Quality

Standards

NOx Nitrogen Oxides

NPRM Notice of Proposed Rulemaking

NSR New Source Review

NTTAA National Technology Transfer and

Advancement Act of 1995

OMB Office of Management and Budget

OTR Ozone Transport Region

ORVR Onboard refueling vapor recovery

PM Particulate Matter

PM 2.5 Fine Particulate Matter

ppb Parts per Billion

ppm Parts per Million

PSD Prevention of Significant Deterioration

RACM Reasonably Available Control

Measures

RACT Reasonably Available Control

Technology

RFA Regulatory Flexibility Act

RFG Reformulated Gasoline

RFP Reasonable Further Progress

ROP Rate of Progress

RPO Regional Planning Organization

SBA Small Business Administration

SIP State Implementation Plan

TAR Tribal Authority Rule

TAS Treatment in the Same Manner as a

State ("Treatment as State")

TIP Tribal Implementation Plan; also

Transportation Improvement Program

(depending on context)

tpd Tons Per Day

tpy Tons Per Year

TSP Total Suspended Particulate

UMRA Unfunded Mandates Reform Act of

1995

VCS Voluntary Consensus Standards

VOC Volatile Organic Compound

APPENDIX B TO PREAMBLE RELEVANT RULEMAKINGS CONCERNING IMPLEMENTATION OF THE 1997 OZONE NAAQS AND

ANTI-BACKSLIDING PROVISIONS FOR REVOKED 1-HOUR OZONE NAAQS

[MR-Major Rulemaking; RE-Reconsideration; CO-Correction; OT-Other]

FR Citation Date Title (kind of rule) Action Topic

68 FR 32802 ..............

68 FR 46536 .............. 1 08/06/2003 .................

68 FR 60054 ..............

69 FR 23858 ..............

10/21/2003 .................

04/30/2004 .................

69 FR 23951 .............. 1 04/30/2004 .................

69 FR 35526 .............. 06/25/2004 .................

Proposed Rule to Implement the 8-Hour

Ozone National Ambient Air Quality Standards (MR).

Draft Regulatory Text for Proposed Rule to

Implement the 8-Hour Ozone National Ambient Air Quality Standards (OT).

Proposed Rule to Implement the 8-Hour

Ozone National Ambient Air Quality Standards (OT).

Air Quality Designations and Classifications

for the 8-Hour Ozone National Ambient Air

Quality Standards; Early Action Compact

Areas With Deferred Effective Dates (MR).

Final Rule to Implement the 8-Hour Ozone

National Ambient Air Quality StandardsPhase 1 (MR).

Revision to the Preamble of the Final Rule to

Implement the 8-Hour Ozone National Ambient Air Quality Standards-Phase 1;

Correction (CO).

Proposed Rulemaking

Notice of Availability .. I Draft regulatory text.

Reopening of public

comment period.

Final Rule ...................

Final Rule ...................

Final rule; correction ..

Classification system.

Classification; Revocation of 1-hour

std, anti-backsliding.

Filing of petitions for

review.

06/02/2003 .................

34227
Federal Register/Vol. 78, No. 109/Thursday, June 6, 2013/Proposed Rules

APPENDIX B TO PREAMBLE RELEVANT RULEMAKINGS CONCERNING IMPLEMENTATION OF THE 1997 OZONE NAAQS AND

ANTI-BACKSLIDING PROVISIONS FOR REVOKED 1-HOUR OZONE NAAQS-Continued

[MR-Major Rulemaking; RE-Reconsideration; CO-Correction; OT-Other]

FR Citation Date Title (kind of rule) Action Topic

70 FR 5593 ................ 02/03/2005 .................

70 FR 17018 .............. 04/04/2005 .................

70 FR 30592 .............. 05/26/2005 .................

70 FR 39413 .............. 07/08/2005 .................

70 FR 44470 .............. 1 08/03/2005 .................

70 FR 71612 .............. 111/29/2005 .................

71 FR 15098 .............. 03/27/2006 .................

71 FR 58498 .............. 10/04/2006 .................

71 FR 75902 .............. 112/19/2006 .................

72 FR 31727 ..............

73 FR 42294 ..............

06/08/2007 .................

07/21/2008 .................

Implementation of the 8-Hour Ozone National Ambient Air Quality StandardsPhase 1: Reconsideration (RE).

Nonattainment Major New Source Review

Implementation Under 8-Hour Ozone National Ambient Air Quality Standards: Reconsideration (RE).

Implementation of the 8-Hour Ozone National Ambient Air Quality StandardsPhase 1: Reconsideration (RE).

Nonattainment Major New Source Review

Implementation Under 8-Hour Ozone National Ambient Air Quality Standards: Reconsideration (RE).

Identification of Ozone Areas for Which the

1-Hour Standard Has Been Revoked and

Technical Correction to Phase 1 Rule (RE).

Final Rule To Implement the 8-Hour Ozone

National Ambient Air Quality StandardsPhase 2; Final Rule to Implement Certain

Aspects of the 1990 Amendments Relating

to New Source Review and Prevention of

Significant Deterioration as They Apply in

Carbon Monoxide, Particulate Matter and

Ozone NAAQS; Final Rule for Reformulated Gasoline (MR).

Implementation of the 8-Hour Ozone National Ambient Air Quality StandardsPhase 1: Reconsideration (RE).

Final Rule To Implement the 8-Hour Ozone

National Ambient Air Quality StandardsPhase 2; Final Rule to Implement Certain

Aspects of the 1990 Amendments Relating

to New Source Review and Prevention of

Significant Deterioration as They Apply in

Carbon Monoxide, Particulate Matter and

Ozone NAAQS; Final Rule for Reformulated Gasoline; Correction (CO).

Phase 2 of the Final Rule To Implement the

8-Hour Ozone National Ambient Air Quality Standards-Notice of Reconsideration

(RE).

Phase 2 of the Final Rule To Implement the

8-Hour Ozone National Ambient Air Quality Standards-Notice of Reconsideration

(RE).

Proposed Rule to Implement the 1997 8-

Hour Ozone National Ambient Air Quality

Standard: Addressing a Portion of the

Phase 2 Ozone Implementation Rule Concerning Reasonable Further Progress

Emissions Reduction Credits Outside

Ozone Nonattainment Areas (OT).

Proposed rule; notice

of public hearing.

Proposed rule; notice

of public hearing.

F ina l ru le ....................

Final rule; notice of

final action on reconsideration.

Final R ule ...................

Final R ule ...................

Proposed rule; notice

of public hearing;

reopening comment

period.

Final rule; correction

Waiver from anti-backsliding of 1-hour

ozone Sec. 185

penalty fees and

contingency measures; listing of 1-

hour attainment

demos as applicable requirement.

NSR under 8-hour

NAAQS.

Waiver from Antibacksliding of 1-

hour ozone Sec.

185 penalty fees

and contingency

measures; listing of

1-hour attainment

demos as applicable requirement.

NSR under 8-hour

NAAQS.

Part 81 change to reflect revocation of 1-

hour standard; correction to 40 CFR

51.905(c).

All other 8-hour ozone

SIP requirements,

including attainment

demo, RFP, RACT/

RACM.

Overwhelming transport classification.

Corrections to methods for calculating

RFP targets.

Proposed Rule ........... CAIR/RACT issue &

two NSR issues.

Final notice of reconsideration.

Proposed Rule ...........

CAIR/RACT issue &

two NSR issues.

Phase 2 rule addressing partial vacatur

on RFP Credit from

outside nonattainment area.

34228
Federal Register/Vol. 78, No. 109/Thursday, June 6, 2013/Proposed Rules 34229

APPENDIX B TO PREAMBLE RELEVANT RULEMAKINGS CONCERNING IMPLEMENTATION OF THE 1997 OZONE NAAQS AND

ANTI-BACKSLIDING PROVISIONS FOR REVOKED 1-HOUR OZONE NAAQS-Continued

[MR-Major Rulemaking; RE-Reconsideration; CO-Correction; OT-Other]

FR Citation Date Title (kind of rule) Action Topic

74 FR 2936 ................ 1 01/16/2009 .................

74 FR 34525 .............. 1 07/16/2009 .................

74 FR 40074 .............. 1 08/11/2009 .................

75 FR 51960 .............. 1 08/24/2010 .................

75 FR 80420 .............. 12/22/2010 .................

76 FR 41731 .............. 107/15/2011 .................

Proposed Rule To Implement the 1997 8-

Hour Ozone National Ambient Air Quality

Standards: Revision of Subpart 1 Area Reclassification and Anti-backsliding Provisions Under Former 1-Hour Ozone Standard; Proposed Deletion of Obsolete 1-Hour

Ozone Standard Provision.

Ambient Ozone Monitoring Regulations: Revisions to Network Design Requirements.

Implementation of the 1997 8-Hour Ozone

National Ambient Air Quality Standard: Addressing a Portion of the Phase 2 Ozone

Implementation Rule Concerning Reasonable Further Progress Emissions Reduction Credits Outside Ozone Nonattainment

Areas.

Proposed Rule To Implement the 1997 8-

Hour Ozone National Ambient Air Quality

Standard: New Source Review Anti-Backsliding Provisions for Former 1-Hour

Ozone Standard.

Reasonable Further Progress Requirements

for the 1997 8-Hour Ozone National Ambient Air Quality Standards.

Air Quality: Widespread Use for Onboard

Refueling Vapor Recovery and Stage II

Waiver.

Proposed Rule ...........

Proposed Rule ...........

Final Rule ...................

Proposed Rule ...........

Proposed Rule ...........

Proposed Rule ...........

Phase 1 Rule-response to vacaturSubpart 1 areas, 1-

hour contingency

measures, rule text

revision on 1-hour

Anti-backsliding exemptions.

Proposing to modify

monitoring requirements and extend

the length of the required ozone monitoring season in

some states.

Phase 2 rule addressing partial vacatur

on RFP Credit from

outside nonattainment area.

Proposing to address

New Source Review

anti-backsliding requirements for the

revoked 1-hour

ozone NAAQS.

Proposing to revise

the agency's earlier

interpretation of its

rule that allowed

emissions reductions from outside

the nonattainment

area to be credited

toward meeting the

RFP requirements

inside the area.

Proposing: 1) criteria

for determining

whether onboard refueling vapor recovery (ORVR) is in

widespread use; 2)

to determine the

date at which widespread use of

ORVR will occur.

Appendix C to Preamble Methods To

Account for Non-Creditable Reductions

When Calculating RFP Targets for the

2008 Ozone NAAQS

The following methods properly account

for the non-creditable emissions reductions

when calculating RFP targets.' They are

1 These methods assume the use of EPA's on-road

motor vehicle emissions model in all states other

than California. All of the methods given here

require the user to turn off all post-1990 CAA measures as part of the calculation. In EPA's current

motor vehicle emissions model, MOVES, this is

accomplished by selecting "Rate of Progress" in the

"Strategies" section of the MOVES Navigation

Panel. This is described in the MOVES2010 User's

consistent with requirements of sections

182(b)(1)(C) and (D) and 182(c)(2)(B) of the

CAA. 2

Guide and in the MOVES Technical Guidance (both

found at www.epa.gov/otaq/models/moves/

index.htm). Users of future versions of EPA's motor

vehicle emissions model should consult the

appropriate User's Guide for the version of the

model they are using for instructions on what

model command to use. For California

nonattainment areas, the current motor vehicle

emissions model is EMFAC2007. Users modeling

California nonattainment areas should consult with

the EPA regional office for information on doing

equivalent calculations in that model and in future

versions.

2 These sections of the Clean Air Act list four

types of measures that are not creditable in these

(1) Method 1 applies to areas (or portions

thereof) that must meet a 15 percent VOC

reduction requirement without NOx

substitution:

(A) Estimate the actual anthropogenic

baseline year VOC inventory for the baseline

year with all control programs that were in

the baseline year.

calculations: motor vehicle exhaust or evaporative

standards promulgated by January 1, 1990; certain

fuel RVP requirements that were implemented in

1992; certain corrections to RACT provisions in

SIPs; and certain corrections to I/M programs. The

latter two corrections occurred shortly after 1990

and no longer need to be accounted for. The

methods described in this appendix address the

first two types of non-creditable reductions.
Federal Register/Vol. 78, No. 109/Thursday, June 6, 2013/Proposed Rules

(B) Using the same highway vehicle

activity inputs used to calculate the actual

baseline year inventory, run the appropriate

motor vehicle emissions model for the

baseline year and the 15 percent milestone

year (i.e., the sixth year following the

baseline year) with all post-1990 CAA

measures turned off. Any other local inputs

for vehicle inspection and maintenance (I/M)

programs should be set according to the

program that was required to be in place in

1990. Fuel vapor pressure (RVP) should be

set at 9.0 or 7.8 depending on the RVP

required in the local area as a result of the

RVP regulations promulgated in June 1990.

(C) Calculate the difference between the

baseline and 15 percent milestone year VOC

emission factors calculated in Step B and

multiply by vehicle miles traveled (VMT) for

the baseline year. The result is the VOC

emissions reduction that will occur between

the baseline year and the 15 percent

milestone year without the benefits of any

post-1990 CAA measures. This is the noncreditable reduction that will occur over this

period.

(D) Subtract the non-creditable reduction

calculated in Step C from the actual

anthropogenic baseline inventory estimated

in Step A. This adjusted VOC inventory is

the basis for calculating the target level of

actual emissions in the 15 percent milestone

year.

(E) Reduce the adjusted VOC inventory

calculated in Step D by 15 percent. The result

is the level of VOC emissions in the 15

percent milestone year necessary to meet the

15 percent VOC reduction requirement. The

actual projected 15 percent milestone year

inventory for all sources with all control

measures in place in the milestone year and

including projected growth in activity

through the 15 percent milestone year must

be at or lower than this target level of

emissions.

(2) Method 2 applies to areas initially

classified as Moderate for the 2008 ozone

NAAQS and portions thereof and for areas or

those portions thereof that had already met

the 15 percent RFP requirement for VOC in

section 182(b)(1) of the CAA for the 1-hour

ozone NAAQS or the 1997 ozone NAAQS, or,

that met this 15 percent RFP requirement

based upon a combination of SIPs for both

the 1-hour ozone NAAQS and the 1997 ozone

NAAQS. These areas or the portions thereof

are covered by subpart 1 RFP requirements

and must meet a 15 percent VOC emission

reduction requirement by the 15 percent

milestone year but with NOx substitution

allowed, following EPA's NOx Substitution

Guidance s:

(A) Estimate the actual anthropogenic

baseline year inventory for both VOC and

NOx with all control programs in place in the

baseline year.

(B) Using the same highway vehicle

activity inputs used to calculate the baseline

year inventory, run the appropriate motor

vehicle emissions model for the baseline year

and the 15 percent milestone year with all

post-1990 CAA measures turned off. Any

3 NOx Substitution Guidance (December 15, 1993;

available at http://www.epa.govlttnloarpgl

tlpgm.html).

other local inputs for I/M programs should be

set according to the program that was

required to be in place in 1990. Fuel RVP

should be set at 9.0 or 7.8 depending on the

RVP required in the local area as a result of

RVP regulations promulgated in June 1990.

(C) Calculate the difference between the

baseline and 15 percent milestone years VOC

emissions factors calculated in Step B and

multiply by the baseline year VMT. The

result is the VOC emissions reduction that

will occur between the baseline year and the

15 percent milestone year without the

benefits of any post-1990 CAA measures.

This is the non-creditable VOC reduction that

will occur over this period. Calculate the

difference between the baseline year and the

15 percent milestone year NOx emissions

factors calculated in Step B and multiply by

the baseline year VMT. This result is the NOx

emissions reduction that will occur between

the baseline year and the 15 percent

milestone year without the benefits of any

post-1990 CAA measures. This is the noncreditable NOx reduction that will occur over

this period.

(D) Subtract the non-creditable VOC

reduction calculated in Step C from the

actual anthropogenic baseline year VOC

inventory estimated in Step A. Subtract the

non-creditable NOx reduction calculated in

Step C from the actual anthropogenic

baseline year NOx inventory estimated in

Step A. These adjusted VOC and NOx

inventories are the basis for calculating the

target level of emissions in the 15 percent

milestone year.

(E) The target for VOC and NOx emissions

in the 15 percent milestone year needed to

meet the 15 percent milestone year RFP

requirement is any combination of VOC and

NOx emissions which result in a combined

total of 15 percent reductions when

compared to the adjusted VOC and NOx

inventories calculated in Step D. For

example, the target level of VOC emissions in

the 15 percent milestone year could be 90

percent of the adjusted VOC inventory

calculated in Step D, which would be a 10

percent reduction, and similarly the target

level of NOx emissions could be 95 percent

of the adjusted VOC inventory calculated in

Step D, which would be a 5 percent

reduction. The actual projected 15 percent

milestone year VOC and NOx inventories for

all sources with all control measures in place

as of the milestone year and including

projected 15 percent milestone year growth

in activity must be at or lower than the target

levels of VOC and NOx emissions.

(3) Method 3 applies to Serious and higher

classified areas for the 2008 ozone NAAQS

or portions thereof that have met a 15 percent

reduction requirement for a previous ozone

NAAQS and that must meet an 18 percent

VOC emission reduction requirement with

NOx substitution allowed, following EPA's

NOx Substitution Guidance 4:

(A) Estimate the actual anthropogenic

baseline year inventory for both VOC and

NOx with all source control programs in

place during the baseline year.

4 NOx Substitution Guidance (December 15, 1993;

available at http://www.epa.govlttnloarpgl

tlpgm.html).

(B) Using the same highway vehicle

activity inputs used to calculate the baseline

year inventory, run the appropriate motor

vehicle emissions model for the baseline year

and the 18 percent milestone year (i.e., the

sixth year following the baseline year) with

all post-1990 CAA measures turned off. Any

other local inputs for I/M programs should be

set according to the program that was

required to be in place in 1990. Fuel RVP

should be set at 9.0 or 7.8 depending on the

RVP required in the local area as a result of

RVP regulations promulgated in June 1990.

(C) Calculate the difference between the

baseline year and the 18 percent milestone

year VOC emissions factors calculated in

Step B and multiply this difference by the

baseline year VMT. The result is the VOC

emissions reduction that will occur between

the baseline year and the milestone year

without the benefits of any post-1990 CAA

measures. This is the non-creditable VOC

reduction that will occur over this period.

Calculate the difference between the baseline

and milestone years NOx emissions factors

calculated in Step B and multiply by the

baseline year VMT. This result is the NOx

emissions reduction that will occur between

the baseline year and the milestone year

without the benefits of any post-1990 CAA

measures. This is the non-creditable NOx

reduction that will occur over this period.

(D) Subtract the non-creditable VOC

reduction calculated in Step C from the

actual anthropogenic baseline year VOC

inventory estimated in Step A. Subtract the

non-creditable NOx reduction calculated in

Step C from the actual anthropogenic

baseline year NOx inventory estimated in

Step A. These adjusted VOC and NOx

inventories are the basis for calculating the

target level of emissions in the milestone

year.

(E) The target for VOC and NOx emissions

in the 18 percent milestone year needed to

meet the 18 percent milestone year RFP

requirement is any combination of VOC and

NOx emissions that result in a combined

total of 18 percent reductions when

compared to the adjusted VOC and NOx

inventories calculated in Step D. For

example, the target level of VOC emissions in

the 18 percent milestone year could be 92

percent of the adjusted VOC inventory in

Step D (and 8 percent reduction in VOC) and

90 percent of the adjusted NOx inventory in

Step D (a 10 percent reduction in NOx). The

actual projected 18 percent milestone year

VOC and NOx inventories for all sources

with all control measures in place in the

milestone year and including projected 18

percent milestone year growth in activity

must be at or lower than the target levels of

VOC and NOx emissions.

(4) Method 4 applies to all Serious and

higher classified areas that have used Method

1 (and therefore do not have a NOx target

level of emissions for the 15 percent

milestone year) and must meet an additional

reduction VOC requirement of 9 percent

every 3 years after the 15 percent milestone

year with NOx substitution allowed,

following EPA's NOx Substitution Guidance.

Each subsequent target level of emissions

should be calculated as an emission

reduction from the previous target.

34230
Federal Register/Vol. 78, No. 109/Thursday, June 6, 2013/Proposed Rules

(A) Estimate the actual anthropogenic

baseline year NOx inventory in the baseline

year with all control programs in place in the

baseline year.

(B) Using the same highway vehicle

activity inputs used to calculate the actual

baseline year inventory, run the appropriate

emissions model for VOC and NOx in the

baseline year and the 15 percent milestone

year (previously done in Step B in Method

1 for VOC but not necessarily for NOx) and

the first 9 percent milestone year with all

post-1990 CAA measures turned off. Any

other local inputs for I/M programs should be

set according to the program that was

required to be in place in 1990. Fuel RVP

should be set at 9.0 or 7.8 depending on the

RVP required in the local area as a result of

fuel RVP regulations promulgated in June,

1990.

(C) Calculate the difference between the 15

percent milestone year and the first 9 percent

milestone year VOC emission factors

calculated in Step B and multiply by the

baseline year VMT. The result is the VOC

emissions reduction that will occur between

the 15 percent milestone year and the 9

percent milestone year without the benefits

of any post-1990 CAA measures. This is the

non-creditable VOC reduction that will occur

over this period. Calculate the difference

between the baseline year and the first 9

percent milestone year NOx emission factors

calculated in Step B and multiply by the

baseline year VMT. The result is the NOx

emissions reduction that will occur between

the baseline year and the first 9 percent

milestone year without the benefits of any

post-1990 CAA measures. This is the noncreditable NOx reduction that will occur over

this period.

(D) Subtract the non-creditable VOC

reduction calculated in Step C from the 15

percent milestone year VOC target level of

emissions calculated previously. Subtract the

non-creditable NOx reduction calculated in

Step C from the actual the baseline year NOx

inventory of emissions calculated in Step A.

These adjusted VOC and NOx inventories are

the basis for calculating the target level of

emissions for the first 9 percent milestone

year.

(E) The target for VOC and NOx emissions

in the 9 percent milestone year needed to

meet the first 9 percent milestone year RFP

requirement is any combination of VOC and

NOx emissions that result in a combined

total of 9 percent reductions when compared

to the adjusted VOC and NOx inventories

calculated in Step D that total 9 percent. For

example, the target level of VOC emissions in

the first 9 percent milestone year could be 96

percent of the adjusted VOC inventory in

Step D (a 4 percent reduction in VOC

emissions) and 95 percent of the adjusted

NOx inventory in Step D (a 5 percent

reduction in NOx emissions). The actual

projected first 9 percent milestone year VOC

and NOx inventories for all sources with all

control measures in place in the milestone

year and including projected first 9 percent

milestone year growth in activity must be at

or lower than the target levels of VOC and

NOx emissions.

(F) For subsequent 3-year periods until the

attainment date, the adjusted VOC inventory

should be based on the difference in VOC

emissions during that 3-year period when all

post-1990 CAA measures are turned off,

subtracted from the previous VOC target level

of emissions. For subsequent 3-year periods,

the adjusted NOx inventory should be based

on the difference in NOx emissions during

that 3-year period when all post-1990 CAA

measures are turned off, subtracted from the

previous NOx target level of emissions. For

example, for the subsequent 9 percent

milestone year, take the VOC and NOx

emissions reductions that will occur between

the 9 percent milestone year and the

subsequent 9 percent milestone year without

the benefits of any post-1990 CAA measures

and with consistent vehicle activity. These

reductions are subtracted from the 9 percent

milestone year target level of VOC and NOx

emissions calculated in Step E to get the

adjusted VOC and NOx inventories to be

used as the basis for calculating the target

levels of VOC and NOx emissions in the

subsequent 9 percent milestone year.

(5) Method 5 applies to all Moderate areas

that are subsequently reclassified as Serious

(or higher) pursuant to section 181(b) of the

CAA, that used Method 2 (and therefore do

have a NOx target level of emissions for the

15 percent milestone year) and that must

meet an additional reduction VOC

requirement of 9 percent every 3 years after

the 15 percent milestone year with NOx

substitution allowed, following EPA's NOx

Substitution Guidance. Each subsequent

target level of emissions should be calculated

as an emissions reduction from the previous

target.

(A) Using the same highway vehicle

activity inputs used to calculate the actual

baseline year inventory, run the appropriate

emissions model for VOC and NOx in the 15

percent milestone year (previously done in

Step B in Method 2) and the 9 percent

milestone year with all post-1990 CAA

measures turned off. Any other local inputs

for I/M programs should be set according to

the program that was required to be in place

in 1990. Fuel RVP should be set at 9.0 or 7.8

depending on the RVP required in the local

area as a result of fuel RVP regulations

promulgated in June 1990.

(B) Calculate the difference between the 15

percent milestone year and the 9 percent

milestone year VOC emission factors

calculated in Step A and multiply by the

baseline year VMT. The result is the VOC

emissions reduction that will occur between

the 15 percent milestone year and the 9

percent milestone year without the benefits

of any post-1990 CAA control measures. This

is the non-creditable VOC reduction that will

occur over this period. Calculate the

difference between the baseline year and the

first 9 percent milestone year NOx emission

factors calculated in Step A and multiply by

the baseline year VMT. The result is the NOx

emissions reduction that will occur between

the baseline year and the first 9 percent

milestone year without the benefits of any

post-1990 CAA measures. This is the noncreditable NOx reduction that will occur over

this period.

(C) Subtract the non-creditable VOC

reduction calculated in Step B from the 15

percent milestone year VOC target level of

emissions calculated previously. Subtract the

non-creditable NOx reduction calculated in

Step B from the 15 percent milestone year

NOx target level of emissions calculated

previously. These adjusted VOC and NOx

inventories are the basis for calculating the

target level of emissions for the 9 percent

milestone year.

(D) The target for VOC and NOx emissions

in the 9 percent milestone year needed to

meet the first 9 percent milestone year RFP

requirement is any combination of VOC and

NOx emissions that result in a combined

total of 9 percent reductions when compared

to the adjusted VOC and NOx inventories

calculated in Step D For example, the target

level of VOC emissions in the first 9 percent

milestone year could be 96 percent of the

adjusted VOC inventory in Step C (a 4

percent reduction in VOC emissions) and 95

percent of the adjusted NOx inventory in

Step C (a 5 percent reduction in NOx

emissions). The actual projected 9 percent

milestone year VOC and NOx inventories for

all sources with all control measures in place

and including projected 9 percent milestone

year growth in activity must be at or lower

than the target levels of VOC and NOx

emissions.

(E) For subsequent 3-year periods until the

attainment date, the adjusted VOC inventory

should be based on the difference in VOC

emissions during that 3-year period when all

post-1990 CAA measures are turned off using

the same VMT used in the baseline year,

subtracted from the previous VOC target level

of emissions. For subsequent 3-year periods,

the adjusted NOx inventory should be based

on the difference in NOx emissions during

that 3-year period when all post-1990 CAA

measures are turned off using the same VMT

used in the baseline year, subtracted from the

previous NOx target level of emissions. For

example, for the subsequent 9 percent

milestone year, take the VOC and NOx

emissions reductions that will occur between

the 9 percent milestone year and the

subsequent 9 percent milestone year without

the benefits of any post-1990 CAA measures.

These reductions are subtracted from the 9

percent milestone year target level of VOC

and NOx emissions calculated in Step D to

get the adjusted VOC and NOx inventories to

be used as the basis for calculating the target

levels of VOC and NOx emissions in the

subsequent 9 percent milestone year.

(6) Method 6 applies to all Serious and

higher classified areas that have used Method

3 (and therefore do have a NOx target level

of emissions for the 18 percent milestone

year) and must meet an additional reduction

VOC requirement of 9 percent every 3 years

after the 18 percent milestone year with NOx

substitution allowed, following the EPA's

NOx Substitution Guidance. Each subsequent

target level of emissions should be calculated

as an emissions reduction from the previous

target.

(A) Using the same highway vehicle

activity inputs used to calculate the actual

baseline year inventory, run the appropriate

emissions model for VOC and NOx in the 18

percent milestone year (previously done in

Step B in Method 3) and the 9 percent

milestone year with all post-1990 CAA

measures turned off. Any other local inputs

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for I/M programs should be set according to

the program that was required to be in place

in 1990. Fuel RVP should be set at 9.0 or 7.8

depending on the RVP required in the local

area as a result of fuel RVP regulations

promulgated in June 1990.

(B) Calculate the difference between the 18

percent milestone year and the 9 percent

milestone year VOC emission factors

calculated in Step A and multiply by the

baseline year VMT. The result is the VOC

emissions reduction that will occur between

the 18 percent milestone year and the 9

percent milestone year without the benefits

of any post-1990 CAA control measures. This

is the non-creditable VOC reduction that will

occur over this period. Calculate the

difference between the baseline year and the

first 9 percent milestone year NOx emission

factors calculated in Step A and multiply by

the baseline year VMT. The result is the NOx

emissions reduction that will occur between

the baseline year and the first 9 percent

milestone year without the benefits of any

post-1990 CAA measures. This is the noncreditable NOx reduction that will occur over

this period.

(C) Subtract the non-creditable VOC

reduction calculated in Step B from the 18

percent milestone year VOC target level of

emissions calculated previously. Subtract the

non-creditable NOx reduction calculated in

Step B from the 18 percent milestone year

NOx target level of emissions calculated

previously. These adjusted VOC and NOx

inventories are the basis for calculating the

target level of emissions for 9 percent

milestone year.

(D) The target for VOC and NOx emissions

in the 9 percent milestone year needed to

meet the first 9 percent milestone year RFP

requirement is any combination of VOC and

NOx emissions that result in a combined

total of 9 percent reductions when compared

to the adjusted VOC and NOx inventories

calculated in Step D For example, the target

level of VOC emissions in the first 9 percent

milestone year could be 96 percent of the

adjusted VOC inventory in Step C (a 4

percent reduction in VOC emissions) and 95

percent of the adjusted NOx inventory in

Step C (a 5 percent reduction in NOx

emissions). The actual projected 9 percent

milestone year VOC and NOx inventories for

all sources with all control measures in place

and including projected 9 percent milestone

year growth in activity must be at or lower

than the target levels of VOC and NOx

emissions.

(E) For subsequent 3-year periods until the

attainment date, the adjusted VOC inventory

should be based on the difference in VOC

emissions during that 3-year period when all

post-1990 CAA measures are turned off using

the same VMT used in the baseline year,

subtracted from the previous VOC target level

of emissions. For subsequent 3-year periods,

the adjusted NOx inventory should be based

on the difference in NOx emissions during

that 3-year period when all post-1990 CAA

measures are turned off using the same VMT

used in the baseline year, subtracted from the

previous NOx target level of emissions. For

example, for the subsequent 9 percent

milestone year, take the difference in VOC

and NOx emissions reductions that will

occur between the 9 percent milestone year

and the subsequent 9 percent milestone year

without the benefits of any post-1990 CAA

measures. These values are subtracted from

the 9 percent milestone year target level of

VOC and NOx emissions calculated in Step

D to get the adjusted VOC and NOx

inventories to be used as the basis for

calculating the target levels of VOC and NOx

emissions in the subsequent 9 percent

milestone year.

Appendix D to Preamble-List of Areas

Nonattainment for the 2008 Ozone

NAAQS In Addition to a Prior Ozone

NAAQS

TABLE 1-AREAS NONATTAINMENT FOR BOTH THE 2008 AND 1997 OZONE NAAQS

2008 Nonattainment area name 1997 8-hour ozone classification 1997 Ozone attainment determination

Atlanta Area, GA * ................................................... M oderate ............................................... Attainm ent Deadline Determ ination** Clean Data

Determination.

Calaveras County, CA* .......................................... Moderate ............................................... Attainment Deadline Determination Clean Data

Determination.

Charlotte-Rock Hill Area, NC, SC* ......................... Moderate ............................................... Attainment Deadline Determination*** Clean

Data Determination.

Chico Area, CA ........................................................ M arginal ................................................. Attainm ent Deadline Determ ination Clean Data

Determination.

Denver-Boulder-Greeley-Ft. Collins-Loveland Area, Marginal .................................................

CO.

Im perial County Area, CA ........................................ M oderate ............................................... Clean Data Determ ination.

Jam estow n A rea, NY ............................................... M oderate ............................................... C lean Data Determ ination

Kern County (Eastern Kern) Area, CA .................... Moderate ............................................... Attainment Deadline Determination Clean Data

Determination.

Mariposa County, CA* ........................................... Moderate ............................................... Attainment Deadline Determination Clean Data

Determination.

Nevada County (Western part) Area, CA ................ Moderate ............................................... Attainment Deadline Determination Clean Data

Determination.

P hoe nix-M esa A rea , A Z * ........................................ M a rg inal .................................................

Pittsburgh-Beaver Valley Area, PA ......................... Moderate ............................................... Clean Data Determination-*

S a n D iego A rea , C A ................................................ M ode rate ............................................... **

Sheboygan County, WI ............................................ Moderate ............................................... Attainment Deadline Determination * Clean

Data Determination.

St. Louis-St. Charles-Farmington, MO-IL* .............. Moderate ............................................... Attainment Deadline Determination * Clean

Data Determination.

* 2008 nonattainment area boundary differs from 1997 nonattainment area boundary.

**The EPA published a proposed approval action for the state submitted redesignation request under CAA section 107(d)(3)(E) for the 1997

ozone NAAQS. ***The EPA published a final approval action for the redesignation request submitted by the state of SC under CAA section 107(d)(3)(E) for

the 1997 ozone NAAQS. The state of NC submitted a redesignation request under CAA § 107(d)(3)(E) for the 1997 ozone NAAQS.   Former subpart 1 areas with Determinations of Attainment prior to subpart 2 classification on May 14, 2012 (77 FR 28424). The EPA is

considering approving an Attainment Deadline Determination for the Marginal or Moderate 1997 ozone NAAQS attainment date.

** *** *The state of WI submitted a redesignation request under CAA section 107(d)(3)(E) for the 1997 ozone NAAQS.

******The EPA published a final approval action for the redesignation request submitted by the state of IL under CAA section 107(d)(3)(E) for

the 1997 ozone NAAQS. The state of MO submitted a redesignation request under CAA section 107(d)(3)(E) for the 1997 ozone NAAQS.

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TABLE 2-AREAS NONATTAINMENT FOR THE 2008, 1997, AND 1-HOUR OZONE NAAQS

2008 Nonattainment area 2008 8-Hour ozone 1 -Hour ozone 1 -Hour ozone 1997 8-Hour ozone 1997 Ozone attainment

Sa i ci attainment name classification classification jde t

ermina tion classifica tion determination

Baltimore Area, MD ............

Dallas-Fort Worth Area,

TX *.

Dukes County, MA* ...........

Greater Connecticut Area,

CT.

Houston -Galveston -

Brazoria Area, TX.

Los Angeles and San

Bernardino Counties (W

Mojave Desert) Area, CA.

Los Angeles-South Coast

Air Basin Area, CA.

Morongo Areas of Indian

Country (Morongo Band

of Mission Indians)**.

New York-N. New JerseyLong Island Area, NY,

NJ, CT.

Pechanga Areas of Indian

Country (Pechanga Band

of Luiseno Mission Indians of the Pechanga

Reservation) **.

Philadelphia-Wilmington-Atlantic City Area, PA, NJ,

MD, DE*.

Riverside County

(Coachella Valley) Area

(1-hr Southeast Desert),

CA.

Sacramento Metro Area,

CA.

San Francisco Bay Area,

CA.

San Joaquin Valley Area,

CA.

Seaford, DE *** ...................

Ventura County (part) Area,

CA.

Washington Area, DC, MD,

VA.

Moderate ...............

Moderate ...............

Severe 15 ..............

Serious ..................

M arginal ................. Serious ..................

M arginal ................. Serious ..................

Clean Data Determination.

Clean Data Determination.

Clean Data Determination, Attainment Deadline

Determination.

Clean Data Determination.

Serious ..................

Serious ..................

Moderate ...............

Moderate ...............

M arginal ................. I Severe 17 .............. I............I S evere 15 ..............

Severe 15 ..............

Extreme .................

Moderate ...............

Marginal .................

Severe 17 ..............

Extreme .................

Extreme .................

Severe 17 .............. Clean Data Determination.

Severe ...................

Extreme .................

Severe-17 ..............

Moderate ...............

M oderate ............... I Extrem e ................. I............I Severe-17 ..............

M arginal ................. Severe 15 .............. Clean Data Determination, Attainment Deadline

Determination.

Moderate ...............

Severe 15 .............. I Severe 17 .............. I............I Severe 15 ..............

Severe 15 .............. Severe 15 ..............

Marginal ................. Other .....................

Clean Data Determination.

Clean Data Determination, Attainment Deadline

Determination.

Severe 15 ..............

Marginal .................

Extreme ................. I Extreme .......... I................................ I Extreme .................

M arginal ................. Marginal .................

Serious .................. I Severe 15 ..............

M arginal ................. Severe 15 ..............

Clean Data Determination, Attainment Deadline

Determination.

Clean Data Determination, Attainment Deadline

Determination.

Clean Data Determination, Attainment Deadline

Determination.

Moderate ...............

Serious ..................

Moderate ...............

Clean Data Determination, Attainment Deadline Determination.

Clean Data Determination, Attainment Deadline Determination.

Clean Data Determination, Attainment Deadline Determination.

Clean Data Determination, Attainment Deadline Determination.

Clean Data Determination, Attainment Deadline Determination.

Clean Data Determination.

Clean Data Determination, Attainment Deadline Determination.

* 2008 nonattainment area boundary differs from 1997 and 1-hr ozone nonattainment area boundary.

** Part of Los Angeles-South Coast Air Basin Area, CA (South Coast) for 1997 and 1-hr ozone nonattainment area boundaries. Classification

for the 1997 ozone NAAQS was the classification based on the DV for a South Coast monitor near the tribal land. ***Part of the Philadelphia-Wilmington-Atlantic City Area, PA, NJ, MD, DE for 1997 ozone nonattainment area boundary, and part of the Sussex County, DE ozone nonattainment area boundary for the 1-hour ozone NAAQS.

Statutory Authority

The statutory authority for this action

is provided by sections 109; 110; 172;

181 through 185B; 301(a)(1) and

501(2)(B) of the CAA, as amended (42

U.S.C. 7409; 42 U.S.C. 7410; 42 U.S.C.

7502; 42 U.S.C. 7511-7511f; 42 U.S.C.

7601(a)(1); 42 U.S.C. 7661(2)(B)). This

notice is also subject to section 307(d)

of the CAA (42 U.S.C. 7407(d)).

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List of Subjects

40 CFR Part 50

Environmental protection, Air

pollution control, Carbon monoxide,

Lead, Nitrogen dioxide, Ozone,

Particulate matter, Sulfur oxides.

40 CFR Part 51

Air pollution control,

Intergovernmental relations, Ozone,

Particulate matter, Transportation,

Volatile organic compounds.

40 CFR Part 70

Environmental protection, Air

pollution control, Intergovernmental

relations, Nitrogen oxides, Operating

permits, Ozone, Particulate matter,

Reporting and recordkeeping

requirements, Volatile organic

compounds.

40 CFR Part 71

Environmental protection,

Administrative practice and procedure,

Air pollution control, Intergovernmental

relations, Nitrogen oxides, Operating

permits, Ozone, Particulate matter,

Reporting and recordkeeping

requirements, Volatile organic

compounds.

Dated: May 29, 2013.

Bob Perciasepe,

Acting Administrator.

For the reasons stated in the

preamble, Title 40, Chapter I of the Code

of Federal Regulations is proposed to be

amended as follows:

PART 50-NATIONAL PRIMARY AND

SECONDARY AXVYGH9

m 1. The authority citation for part 50

continues to read as follows:

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

* 2. Section 50.10 is amended by

revising paragraph (c) to read as follows:

§50.10 National 8-hour primary and

secondary ambient air quality standards for

ozone.

(c) Until date of publication of the

final SIP Requirements Rule in the

Federal Register, the 1997 ozone

NAAQS set forth in this section will

continue in effect, notwithstanding the

promulgation of the 2008 ozone NAAQS

under § 50.15. The 1997 ozone NAAQS

set forth in this section will no longer

apply to an area upon the date of

publication of the final SIP

Requirements Rule in the Federal

Register. Area designations and

classifications with respect to the 1997

ozone NAAQS are codified in CFR part

81.

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-Provisions for

Implementation of 8-Hour Ozone

National Ambient Air Quality Standard

* 4. Section 51.919 is added to read as

follows:

§51.919 Applicability

As of one year after the effective date

of designations for the 2008 ozone

NAAQS, as set forth in 50.10(c), the

provisions of Subpart AA shall replace

the provisions of Subpart X, 51.900 to

51.918, which cease to apply.

Subpart AA-Provisions for

Implementation of the 2008 Ozone

National Ambient Air Quality

Standards

5. Amend part 51, subpart AA by:

* a. Revising § 51.1100 by adding

paragraphs (o) through (aa): and

* b. Adding §§ 51.1104 through

51.1119.

The revisions and additions read as

follows

Subpart AA-Provisions for Implementation

of the 2008 Ozone National Ambient Air

Quality Standards

Sec.

51.1100 Definitions.

51.1101 Applicability of part 51.

51.1102 Classification and nonattainment

area planning provisions.

51.1103 Application of classification and

attainment date provisions in CAA

section 181 of subpart 2 to areas subject

to § 51.1102(a).

51.1104 [Reserved].

51.1105 Transition from the 1997 and 1-

hour NAAQS to the 2008 ozone NAAQS

and anti-backsliding.

51.1106 Redesignation to nonattainment

following initial designations.

51.1107 Applicability of CAA section

181(a)(5)(B) for an area that fails to attain

the 2008 ozone NAAQS by its attainment

date.

51.1108 Modeling and attainment

demonstration requirements.

51.1109 [Reserved].

51.1110 Requirements for reasonable

further progress (RFP).

51.1111 [Reserved].

51.1112 Requirements for reasonably

available control technology (RACT) and

reasonably available control measures

(RACM).

51.1113 Section 182(f) NOx exemption

provisions.

51.1114 New source review requirements.

51.1115 Emissions inventory requirements.

51.1116 Requirements for an Ozone

Transport Region.

51.1117 Fee programs for Severe and

Extreme nonattainment areas that fail to

attain.

51.1118 Suspension of attainment SIP

planning requirements in a

nonattainment area upon a

determination that the area has attained

the ozone NAAQS.

51.1119 Applicability.

Appendixes A-K to Part 51 [Reserved]

Appendix L to Part 51-Example Regulations

for Prevention of Air Pollution

Emergency Episodes

Appendix M to Part 51-Recommended Test

Methods for State Implementation Plans

Appendixes N-0 to Part 51 [Reserved]

Appendix P to Part 51-Minimum Emission

Monitoring Requirements

Appendixes Q-R to Part 51 [Reserved]

Appendix S to Part 51-Emission Offset

Interpretative Ruling

Appendixes T-U to Part 51 [Reserved]

Appendix V to Part 51-Criteria for

Determining the Completeness of Plan

Submissions

Appendix W to Part 51-Guideline on Air

Quality Models

Appendix X to Part 51-Examples of

Economic Incentive Programs

Appendix Y to Part 51-Guidelines for BART

Determinations Under the Regional Haze

Rule

Subpart AA-Provisions for

Implementation of the 2008 Ozone

National Ambient Air Quality

Standards.

§51.1100 Definitions.

(o) Applicable requirements for an

area means the following requirements,

to the extent such requirements apply to

the area pursuant to its classification

under CAA section 181(a)(1) for the 1-

hour NAAQS or the 1997 ozone NAAQS

at the time of revocation of the 1997

ozone NAAQS:

(1) Reasonably available control

technology (RACT).

(2) Vehicle inspection and

maintenance programs (I/M) under CAA

section 182(b)(4) and 182(c)(3).

(3) Major source applicability cut offs

for purposes of RACT.

(4) Reductions to achieve Reasonable

Further Progress (RFP).

(5) Clean fuels fleet program under

CAA section 183(c)(4).

(6) Clean fuels for boilers under CAA

section 182(e)(3).

(7) Transportation Control Measures

(TCMs) during heavy traffic hours as

specified under CAA section 182(e)(4).

(8) Enhanced (ambient) monitoring

under CAA section 182(c)(1).

(9) Transportation controls under

CAA section 182(c)(5).

(10) Vehicle miles traveled provisions

of CAA section 182(d)(1).

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(11) NOx requirements under CAA

section 182(f).

(12) Attainment demonstration.

(13) Nonattainment contingency

measures required under CAA sections

172(c)(9) and 182(c)(9) for failure to

attain the 1-hour or 1997 ozone NAAQS

by the applicable attainment date or to

make reasonable further progress toward

attainment of the 1-hour or 1997 ozone

NAAQS.

(14) Nonattainment New Source

Review (NSR) requirements.

(15) Penalty fee program requirements

for Severe and Extreme Areas under

CAA section 185.

(p) CAIR means the Clean Air

Interstate Rule codified at 40 CFR

51.123(a) through (ee).

(q) NOx SIP Call means the rules

codified at 40 CFR 51.121 and 51.122.

(r) Ozone transport region means the

area established by CAA section 184(a)

or any other area established by the

Administrator pursuant to CAA section

176A for purposes of ozone.

(s) Reasonable further progress (RFP)

means for the purposes of the 2008

ozone NAAQS, the progress reductions

required under CAA section 172(c)(2)

and CAA sections 182(b)(1) and (c)(2)(B)

and (c)(2)(C).

(t) Rate of progress (ROP) means for

the purposes of the 1-hour ozone

NAAQS, the progress reductions

required under CAA section 172(c)(2)

and CAA sections 182(b)(1) and (c)(2)(B)

and (c)(2)(C).

(u) Revocation of the 1-hour NAAQS

means the time at which the 1-hour

NAAQS no longer apply to an area

pursuant to 40 CFR 50.9(b).

(v) Revocation of the 1997 ozone

NAAQS means the time at which the

1997 8-hour NAAQS no longer apply to

an area pursuant to 40 CFR 50.10(c).

(w) Subpart 1 means subpart 1 of part

D of title I of the CAA.

(x) Subpart 2 means subpart 2 of part

D of title I of the CAA.

(y) [Reserved]

(z) Consolidated submittal means a

joint submittal of the emissions

inventory, RACT, and attainment

demonstration SIPs no later than 30

months after the effective date of

designation.

(aa) An area "designated

nonattainment for the 1-hour ozone

NAAQS" means, for purposes of section

51.1105, an area that is subject to

applicable 1-hour ozone NAAQS antibacksliding requirements at the time of

revocation of the 1997 ozone NAAQS.

§ 51.1104 [Reserved]

§ 51.1105 Transition from the 1997 ozone

NAAQS to the 2008 ozone NAAQS and antibacksliding.

(a) Requirements that continue to

apply after revocation of the 1997 ozone

NAAQS.

(1) 2008 ozone NAAQS

nonattainment and 1997 ozone NAAQS

nonattainment.

The following requirements apply to

an area designated nonattainment for

the 2008 ozone NAAQS and also

designated nonattainment for the 1997

ozone NAAQS, or nonattainment for

both the 1997 and 1-hour ozone

NAAQS, at the time of revocation of the

1997 ozone NAAQS:

(i) The area remains subject to the

obligation to adopt and implement the

applicable requirements as defined in

§ 51.1100(o), for any NAAQS for which

it was designated nonattainment at the

time of revocation, in accordance with

its classification for that NAAQS at the

time of that revocation; except as

provided in paragraph (b) of this

section.

(2) 2008 ozone NAAQS

nonattainment and 1997 ozone NAAQS

maintenance.

For an area designated nonattainment

for the 2008 ozone NAAQS that was

redesignated to attainment prior to the

date of revocation (hereinafter a "maintenance area") for the 1997 ozone

NAAQS at the time of revocation of that

NAAQS, the approved SIP, including

the maintenance plan, satisfies the

applicable requirements defined in

section 51.1100(o) for the revoked

NAAQS. These applicable requirements

shall be implemented in accordance

with the measures included in the area's

SIP, including the maintenance plan.

Any applicable requirements that were

shifted to contingency measures prior to

revocation of the 1997 ozone NAAQS

may remain in that form.

(3) 2008 ozone NAAQS attainment

and 1997 ozone NAAQS nonattainment.

(i) Obligations in an approved SIP.

An area that is designated attainment

for the 2008 ozone NAAQS, and

designated nonattainment for the 1997

ozone NAAQS or for both the 1997 and

the 1-hour ozone NAAQS is no longer

subject to nonattainment NSR as of

revocation of the 1997 ozone NAAQS:

the state may at any time request that

the nonattainment NSR provisions

applicable to the area be removed from

the SIP as of that date. The state may

also request, consistent with CAA

section 110(1) and 193, that SIP

measures adopted to satisfy other

applicable requirements of § 51.1100(o)

be shifted to maintenance contingency

measures.

[OPTION 1] (ii) Termination of

previous obligations for areas initially

designated attainment for the 2008

ozone NAAQS.

For areas initially designated

attainment for the 2008 ozone NAAQS,

and designated nonattainment for the

1997 or for both the 1997 and 1-hour

ozone NAAQS at the time of revocation

of the 1997 ozone NAAQS, an area's

approved PSD SIP shall satisfy the

state's obligations with respect to the

area's maintenance of the 2008 ozone

NAAQS pursuant to CAA section

110(a) (1).

[OPTION 2] (ii) Maintenance showing

for the 2008 ozone NAAQS.

For areas initially designated

attainment for the 2008 ozone NAAQS,

and designated nonattainment for the

1997 or for both the 1997 and 1-hour

ozone NAAQS at the time of revocation

of the 1997 ozone NAAQS, the state

shall provide a showing of maintenance

for the 2008 ozone NAAQS, which shall

be due no later than three years after the

effective date of designations for the

2008 ozone NAAQS. This maintenance

showing shall demonstrate that the area

can continue to maintain the 2008

ozone NAAQS for 10 years following

the designations for that NAAQS.

(4) 2008 ozone NAAQS attainment

and 1997 ozone NAAQS maintenance.

(i) Obligations in an approved SIP.

An area that is designated attainment

of the 2008 ozone NAAQS and which

has been redesignated to attainment for

the 1997 ozone NAAQS with an

approved section 175A maintenance

plan, satisfies the applicable

requirements set forth in section

51.1100(o) through implementation of

the provisions of its SIP and

maintenance plan. After revocation of

the 1997 ozone NAAQS, and to the

extent consistent with sections 110(1)

and 193, the state may request that

obligations under the applicable

requirements of section 51.1100(o) be

shifted to its list of maintenance plan

contingency measures.

(ii) No additional obligation for the

2008 ozone NAAQS.

For an area that is initially designated

attainment for the 2008 ozone NAAQS

and which has been redesignated to

attainment for the 1997 ozone NAAQS

with an approved section 175A

maintenance plan, the area's approved

section 175A plan shall satisfy the

state's obligations under CAA section

110(a)(1) with respect to maintenance of

the 2008 ozone NAAQS.

(b) For how long does an area

designated nonattainment for the 2008

ozone NAAQS remain subject to the

applicable requirements as provided

under paragraph (a)?

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(1) Redesignation for 2008 ozone

NAAQS or approval of a redesignation

substitute for a revoked ozone NAAQS.

A state remains subject to the

obligations for a revoked NAAQS under

paragraphs (a)(1) and (a)(2) of this

section until either (1) EPA approves the

area's redesignation to attainment for

the 2008 ozone NAAQS; or (2) EPA

approves a showing for the area in a

procedure that succeeds the

redesignation process for a revoked

NAAQS, and which serves the same

purpose of ending anti-backsliding

requirements as would redesignation,

were the NAAQS in effect. Under this

redesignation substitute procedure for a

revoked NAAQS, and for this limited

anti-backsliding purpose, the area must

show that it has attained that revoked

NAAQS due to permanent and

enforceable emission reductions, and it

must demonstrate that it will maintain

that NAAQS for ten years from the date

of EPA's approval of this showing. If

EPA, after notice-and-comment

rulemaking, approves this showing, it

will have the effect set forth in

paragraph (b)(2) below.

(2) Effect of redesignation to

attainment for the 2008 ozone NAAQS

or approval of a redesignation substitute

for a revoked ozone NAAQS. After

redesignation to attainment for the 2008

ozone NAAQS, the state may request

that provisions for nonattainment NSR

be removed from the SIP, and that other

anti-backsliding obligations be shifted to

contingency measures provided that

such action is consistent with CAA

sections 110(1) and 193. After approval

of a redesignation substitute for a

revoked NAAQS, the state may request

to remove from the SIP provisions for

nonattainment NSR for that revoked

NAAQS. The State may also request to

shift other anti-backsliding obligations

for the relevant revoked standard to

contingency measures provided that

such action is consistent with CAA

sections 110(1) and 193.

(c) Portions of an area designated

nonattainment or attainment for the

2008 ozone NAAQS that remain subject

to the obligations identified in

paragraph (a) of this section.

Only that portion of the designated

nonattainment or attainment area for the

2008 ozone NAAQS that was required to

adopt the applicable requirements in

§ 51.1100(o) for purposes of the 1-hour

or 1997 ozone NAAQS is subject to the

obligations identified in paragraph (a) of

this section. 40 CFR part 81, subpart C

identifies the areas designated

nonattainment and associated area

boundaries for the 1997 ozone NAAQS.

Areas that are designated nonattainment

for the 1997 ozone NAAQS at the time

of designation for the 2008 ozone

NAAQS may be redesignated to

attainment prior to the effective date of

revocation of that ozone NAAQS.

(d) Obligations under the 1997 ozone

NAAQS that no longer apply after

revocation of the 1997 ozone NAAQS.

(1) Maintenance plans.

Upon revocation of the 1997 ozone

NAAQS, an area with an approved 1997

ozone NAAQS maintenance plan under

CAA section 175A may modify the

maintenance plan: (a) To remove the

obligation to submit a maintenance plan

for the 1997 ozone NAAQS 8 years after

approval of the initial 1997 ozone

NAAQS maintenance plan; and (b) to

remove the obligation to implement

contingency measures upon a violation

of the 1997 ozone NAAQS. However,

such requirements will remain

enforceable as part of the approved SIP

until such time as EPA approves a SIP

revision removing such obligations.

(2) Determinations of failure to attain

the 1997 and/or 1-hour NAAQS.

(i) After revocation of the 1997 ozone

NAAQS, EPA is no longer obligated to

determine pursuant to CAA section

181(b)(2) or section 179(c) whether an

area designated Marginal, Moderate, or

Serious attained the 1997 ozone NAAQS

by that area's attainment date for the

1997 ozone NAAQS.

(ii) Upon revocation of the 1997 ozone

NAAQS for an area, under no

circumstances is EPA obligated to

reclassify an area to a higher

classification for the 1997 ozone

NAAQS based upon a determination

that the area failed to attain the 1997

ozone NAAQS by the area's attainment

date for the 1997 ozone NAAQS.

(iii) For the revoked 1-hour and 1997

ozone NAAQS, EPA is required to

determine whether a nonattainment area

attained the 1-hour or 1997 ozone

NAAQS by the area's attainment date

solely for the purpose of addressing an

applicable requirement for

nonattainment contingency measures or

section 185 fee programs. In making

such a determination, the EPA may

consider and apply the provisions of

former section 51.907 in interpreting

whether a 1-year extension of the

attainment date is applicable under

section 172(a)(2)(C) or 181(a)(5) of the

CAA.

(e) What is the continued

applicability of the FIP and SIP

requirements pertaining to CAA section

110(a)(2)(D)(i) and (ii) after revocation of

the 1997 ozone NAAQS?

All control requirements associated

with a FIP or approved SIP in effect for

an area at the time the 1997 ozone

NAAQS is revoked, such as the NOx SIP

Call or the CAIR shall continue to apply

after revocation of the 1997 ozone

NAAQS. Control requirements approved

into the SIP pursuant to obligations

arising from section 110(a)(2)(D)(i) and

(ii), including 40 CFR 51.121, 51.122

and 51.123, may be modified by the

state only if the requirements of

§§ 51.121, 51.122 and 51.123, including

statewide NOx emission budgets

continue to be in effect. Any such

modification must meet the

requirements of CAA section 110(1).

(f) New source review.

An area designated nonattainment for

the 2008 ozone NAAQS and designated

nonattainment for the 1997 ozone

NAAQS at the time of revocation of the

1997 ozone NAAQS remains subject to

the obligation to adopt and implement

the requirements for nonattainment NSR

that apply or applied to the area

pursuant to CAA sections 172(c)(5), 173

and 182 based on the highest of: (i) The

area's classification under CAA section

181(a)(1) for the 1-hour NAAQS as of

the effective date of revocation of the 1-

hour ozone NAAQS; (ii) the area's

classification under 40 CFR 51.903 for

the 1997 ozone NAAQS as of the date

a permit is issued or as of the effective

date of revocation of the 1997 ozone

NAAQS, whichever is earlier; and (iii)

the area's classification under 40 CFR

51.1103 for the 2008 ozone NAAQS.

Upon removal of nonattainment NSR

obligations for a revoked NAAQS under

section 51.1105(b)(ii), the state remains

subject to the obligation to adopt and

implement the requirements for

nonattainment NSR that apply or

applied to the area for the remaining

applicable NAAQS consistent with this

paragraph.

§ 51,1106 Redesignation to nonattainment

following initial designations.

For any area that is initially

designated attainment for the 2008

ozone NAAQS and that is subsequently

redesignated to nonattainment for the

2008 ozone NAAQS, any absolute, fixed

date applicable in connection with the

requirements of this part other than an

attainment date is extended by a period

of time equal to the length of time

between the effective date of the initial

designation for the 2008 ozone NAAQS

and the effective date of redesignation,

except as otherwise provided in this

subpart. The number of years such an

area would have to attain would be

based on the area's classification,

consistent with Table 1 in section

51.1103.

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§ 51.1107 Applicability of CAA section

181(a)(5)(B) for an area that fails to attain

the 2008 ozone NAAQS by its attainment

date.

(a) A nonattainment area will meet

the requirement of CAA section

181(a)(5)(B) pertaining to 1-year

extensions of the attainment date if:

(1) For the first 1-year extension, the

area's 4th highest daily 8 hour average

in the attainment year is 0.075 ppm or

less.

(2) for the second 1-year extension,

the area's 4th highest daily 8 hour value,

averaged over both the original

attainment year and the first extension

year, is 0.075 ppm or less.

(b) For purposes of paragraph (a) of

this section, the area's 4th highest daily

8 hour average for a year shall be from

the monitor with the highest 4th highest

daily 8 hour average for that year of all

the monitors that represent that area.

§51.1108 Modeling and attainment

demonstration requirements.

(a) Attainment demonstration

requirements for nonattainment areas

classified as Moderate or higher

pursuant to § 51.1103.

(1) An area classified as Moderate

under § 51.1103(a) shall be subject to

the attainment demonstration

requirement applicable for that

classification under CAA section 182,

except such demonstration is due no

later than [option 1: 36 months] [option

2: The state's choice of either 36 months

or 30 months for a consolidated

submission] after the effective date of

the area's designation for the 2008

ozone NAAQS.

(2) An area classified as Serious or

higher under § 51.1103(a) shall be

subject to the attainment demonstration

requirement applicable for that

classification under CAA section 182,

except such demonstration is due no

later than [option 1: 48 months] [option

2: The state's choice of either 48 months

or 30 months for a consolidated

submission] after the effective date of

the area's designation for the 2008

ozone NAAQS.

(b) Attainment demonstration criteria.

An attainment demonstration due

pursuant to paragraph (a) of this section

must meet the requirements of § 51.112;

the adequacy of an attainment

demonstration shall be demonstrated by

means of a photochemical grid model or

any other analytical method determined

by the Administrator, in the

Administrator's discretion, to be at least

as effective.

(c) Implementation of control

measures.

For each nonattainment area, the state

must provide for implementation of all

control measures needed for attainment

no later than the beginning of the

attainment year ozone season.

§ 51.1109 [Reserved]

§ 51.1110 Requirements for reasonable

further progress (RFP).

(a) RFP for nonattainment areas

classified pursuant to § 51.1103.

The RFP requirements specified in

CAA section 182 for that area's

classification shall apply.

(1) Submission deadline. For each

area classified as Moderate or higher

pursuant to § 51.1103, the state shall

submit a SIP revision no later than

[option 1: 36 months] [option 2: The

state's choice of either 36 months or 30

months for a consolidated submittal]

after designation as nonattainment for

the 2008 ozone NAAQS that provides

for RFP as described in paragraphs

(a)(2)-(4) of this section.

(2) RFP requirements for areas

classified as Moderate or higher with an

approved 1-hour or 1997 ozone NAAQS

15 percent VOC RFP plan or a

Determination of Attainment for those

NAAQS.

An area classified as Moderate or

higher that has the same boundaries as

an area, or is entirely composed of

several areas or portions of areas, for

which EPA fully approved a 15 percent

plan for the 1-hour or 1997 ozone

NAAQS or which has been determined

to be attaining those NAAQS is

considered to have met the

requirements of CAA section 182(b)(1)

for the 2008 ozone NAAQS and instead:

(i) If classified as Moderate or higher,

the area is subject to the RFP

requirements under CAA section

172(c)(2) and shall submit a SIP revision

that:

(A) Provides for a 15 percent emission

reduction from the baseline year within

6 years after the baseline year;

(B) provides for an additional 3

percent per year reduction from the end

of the first 6 years up to the beginning

of the attainment year if a baseline year

earlier than 2011 is used; and

(C) relies on either NOx or VOC

emissions reductions (or a combination)

to meet the requirements of (a)(2)(i)(A)

and (B). Use of NOx emissions

reductions must meet the criteria in

CAA section 182(c)(2)(C).

(ii) If classified as Serious or higher,

the area is also subject to RFP under

CAA section 182(c)(2)(B) and shall

submit an RFP SIP no later than [option

1: 48 months] [option 2: The state's

choice of either 48 months or 30 months

for a consolidated submission]

providing for an average of 3 percent per

year of reduction for:

(A) All remaining 3-year periods after

the first 6-year period until the area's

attainment year; and that

(B) relies on either NOx or VOC

emissions reductions (or a combination)

to meet the requirements of (a)(2)(ii)(A)

and (B). Use of NOx emissions

reductions must meet the criteria in

CAA section 182(c)(2)(C).

(3) RFP requirements for Moderate

and above areas for which only a

portion has an approved 15 percent

VOC RFP plan for the 1-hour or 1997

ozone NAAQS.

An area classified as Moderate or

higher that contains one or more areas,

or portions of areas, for which EPA fully

approved a 15 percent plan for the 1-

hour or 1997 ozone NAAQS as well as

areas for which EPA has not fully

approved a 15 percent plan for either

the 1-hour or 1997 ozone NAAQS shall

meet the requirements of either

paragraph (a)(3)(i) or (ii) below.

(i) The state shall not distinguish

between the portion of the area that

previously met the 15 percent VOC

reduction requirement and the portion

of the area that did not, and shall meet

the requirements of (a)(4) of this section

for the entire nonattainment area.

(ii) The state shall treat the area as

two parts, each with a separate RFP

target as follows:

(A) For the portion of the area without

an approved 15 percent VOC RFP plan

for the 1-hour or 1997 ozone NAAQS,

the state shall submit a SIP revision as

required under paragraph (a)(4) of this

section. Emissions reductions to meet

this requirement may come from

anywhere within the 2008 ozone

NAAQS nonattainment area.

(B) For the portion of the area with an

approved 15 percent VOC plan for the

1-hour or 1997 ozone NAAQS, the state

shall submit a SIP as required under

paragraph (a)(2) of this section.

(4) RFP Requirements for areas

without an approved 1-hour or 1997

ozone NAAQS 15 percent VOC RFP

plan and without a determination of

attainment that suspends the

requirements for those NAAQS.

(i) For each area classified as

Moderate or higher, the state shall

submit a SIP revision consistent with

CAA section 182(b)(1). The 6-year

period referenced in CAA section

182(b)(1) shall begin January 1 of the

year following the year used for the

baseline emissions inventory.

(ii) For Moderate areas, the plan must

provide for an additional 3 percent per

year reduction from the end of the first

6 years up to the beginning of the

attainment year if a baseline year earlier

than 2011 is used.

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(iii) For each area classified as Serious

or higher, the state shall submit a SIP

revision consistent with CAA section

182(c)(2)(B). The final increment of

progress must be achieved no later than

the attainment date for the area.

(5) Creditability of emission control

measures for RFP plans.

Except as specifically provided in

CAA section 182(b)(1)(C) and (D),

section 182(c)(2)(B), and 51.1110(e)

below, all emission reductions from SIPapproved or federally promulgated

measures that occur after the baseline

emissions inventory year are creditable

for purposes of the RFP requirements in

this section, provided the reductions

meet the requirements for creditability,

including the need to be enforceable,

permanent, quantifiable, and surplus.

(a) Baseline emissions inventory for

RFP plans.

For the RFP plans required under this

section, at the time of designation for

the 2008 ozone NAAQS the baseline

emissions inventory shall be the

emissions inventory for the most recent

calendar year for which a complete

triennial inventory is required to be

submitted to EPA under the provisions

of subpart A of this part. States may use

an alternative baseline emissions

inventory provided the state

demonstrates why it is appropriate to

use the alternative baseline year. All

states associated with a multi-state

nonattainment area must consult and

agree on a single alternative baseline

year.

(b) NOx Substitution.

[Alternative 1 for the final rule] For

areas classified as Moderate or higher

that are subject to the requirements of

CAA section 182(b)(1), the state must

submit an RFP plan for the area that

reduces VOC by 15 percent.

[Alternative 2 for the final rule] For

areas classified as Moderate or higher

that are subject to the requirements of

CAA section 182(b)(1), the state may

submit an RFP plan for the area that

substitutes NOx reductions for VOC,

consistent with section 182(c)(2)(C),

provided that the state can demonstrate

that the area achieved a 15 percent

reduction in VOC emissions in the 6-

year period from a baseline emission

year of 1990.

[Alternative 3 for the final rule] For

areas in the OTR that are subject to the

requirements of CAA section 182(b)(1)

for the first time, the state may submit

an RFP plan for an area that substitutes

NOx reductions for VOC, consistent

with CAA section 182(c)(2)(C), provided

that the state can demonstrate that the

area achieved a 15 percent reduction in

VOC emissions in the 6-year period

from a baseline emission year of 1990.

(c) Creditability of out-of-area

emissions reductions. For each area

classified as Moderate or higher

pursuant to § 51.1103, in addition to the

restrictions on the credibility of

emission control measures listed in

51.1110(a)(5), creditable emission

reductions for percentage reduction RFP

also must be obtained from sources

within the nonattainment area.

(d) Calculation of non-creditable

emissions reductions.

[Alternative 1 for the final rule] The

following four categories of control

measures listed in CAA section

182(b)(1)(D) are no longer required to be

calculated for exclusion in RFP analyses

because the Administrator has

determined that due to the passage of

time the effect of these exclusions

would be de minimis: (i) Measures

related to motor vehicle exhaust or

evaporative emissions promulgated by

January 1, 1990; (ii) regulations

concerning Reid vapor pressure

promulgated by November 15, 1990; (iii)

measures to correct previous RACT

requirements; and (iv) measures

required to correct I/M programs.

[Alternative 2 for the final rule] The

non-creditable emissions reductions for

RFP targets must be calculated using the

methodology in Appendix C of the

preamble to the 2008 SIP Requirements

Rule.

§51.1111 [Reserved]

§ 51.1112 Requirements for reasonably

available control technology (RACT) and

reasonably available control measures

(RACM).

(a) RACT requirement for areas

classified pursuant to § 51.1103.

(1) For each primary standard

nonattainment area classified Moderate

or higher, the state shall submit a SIP

revision that meets the NOx and VOC

RACT requirements in CAA sections

182(b)(2) and 182(f).

(2) The state shall submit the RACT

SIP for each area no later than [option

1: 24 months] [option 2: State's choice

of either 24 months or 30 months for a

consolidated submittal] after the

effective date of designation for the 2008

ozone NAAQS.

(3) The state shall provide for

implementation of RACT as

expeditiously as practicable but no later

than January 1 of the fifth year after the

effective date of designation for the 2008

ozone NAAQS.

(b) Determination of major stationary

sources for applicability of RACT

provisions.

VOCs and NOx are to be considered

separately for purposes of determining

whether a source is a major stationary

source as defined in CAA section 302.

(c) Reasonably Available Control

Measures (RACM) requirement for areas

designated nonattainment for the 2008

ozone NAAQS.

For each nonattainment area required

to submit an attainment demonstration

under § 51.1108(a) and (b), the state

shall submit with the attainment

demonstration a SIP revision

demonstrating that it has adopted all

RACM necessary to demonstrate

attainment as expeditiously as

practicable and to meet any RFP

requirements.

§51.1113 Section 182(f) NOx exemption

provisions.

(a) A person or a state may petition

the Administrator for an exemption

from NOx obligations under section

182(f) for any area designated

nonattainment for the 2008 ozone

NAAQS and for any area in a section

184 ozone transport region.

(b) The petition must contain

adequate documentation that the criteria

in section 182(f) are met.

(c) A section 182(f) NOx exemption

granted for the 1-hour or 1997 ozone

NAAQS does not relieve the area from

any NOx obligations under section

182(f) for the 2008 ozone standard.

§51.1114 New source review

requirements.

The requirements for NSR for the

ozone NAAQS are located in § 51.165 of

this part.

§51.1115 Emissions inventory

requirements.

For each nonattainment area

classified in accordance with § 51.1103,

the emissions inventory requirements in

CAA sections 182(a)(1) and 182(a)(3)

shall apply, and such SIP shall be due

no later [option 1: 24 months] [option 2:

24 months or state's choice of 30

months for a consolidated submittal]

after designation. For purposes of

defining the data elements for the

emissions inventories for these areas,

the ozone-relevant data element

requirements under 40 CFR part 51

subpart A shall apply.

§51.1116 Requirements for an Ozone

Transport Region.

(a) In general.

CAA sections 176A and 184 apply for

purposes of the 2008 ozone NAAQS.

(b) RACT requirements for certain

portions of an Ozone Transport Region.

(1) The state shall submit a SIP

revision that meets the RACT

requirements of CAA section 184(b)(2)

for each area that is located in an ozone

transport region.

(2) The state is required to submit the

RACT revision no later than [option 1:

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24 months] [option 2: State's choice of

24 months or 30 months for a

consolidated submittal] after

designation for the 2008 ozone NAAQS

and shall provide for implementation of

RACT as expeditiously as practicable

but no later than January 1 of the fifth

year after designation for the 2008 ozone

NAAQS.

§ 51.1117 Fee programs for Severe and

Extreme nonattainment areas that fail to

attain.

For each area classified as Severe or

Extreme for the 2008 ozone NAAQS, the

state shall submit a SIP revision within

10 years of the effective date of

designation that meets the requirements

of CAA section 185.

§51.1118 Suspension of attainment SIP

planning requirements in a nonattainment

area upon a determination that the area has

attained the ozone NAAQS.

Upon a determination by EPA that an

area designated nonattainment for the

2008 ozone NAAQS, or for any prior

ozone NAAQS, has attained the

standard, the requirements for such area

to submit attainment demonstrations

and associated reasonably available

control measures, reasonable further

progress plans, contingency measures

for failure to attain or make reasonable

progress and other planning SIPs related

to attainment of the 2008 ozone

NAAQS, or for any prior NAAQS for

which the determination has been

made, shall be suspended until such

time as: the area is redesignated to

attainment for that NAAQS, at which

time the requirements no longer apply;

or EPA determines that the area has

violated that NAAQS, at which time the

area is again required to submit such

plans.

§51.1119 Applicability.

As of revocation of the 1997 ozone

NAAQS, as set forth in 50.10(c), the

provisions of Subpart AA shall replace

the provisions of Subpart X, 51.900 to

51.918, which cease to apply. See

Subpart X section 51.919.

* 6. Appendix S to Part 51 is amended

by adding section VII. to read as follows:

Appendix S to Part 51-Emission Offset

Interpretative Ruling

VII. Anti-Backsliding Measures

Nonattainment area new source review

obligations for prior ozone NAAQS.

(a) Except as provided in paragraph (b) of

this section, an area designated

nonattainment for the 2008 ozone NAAQS

and designated nonattainment for the 1997

ozone NAAQS at the time of revocation of

the 1997 ozone NAAQS remains subject to

the obligation to adopt and implement the

requirements for nonattainment new source

review that apply or applied to the area

pursuant to CAA sections 172(c)(5), 173 and

182 based on the highest of: (i) The area's

classification under CAA section 181(a)(1) for

the 1-hour ozone NAAQS as of the effective

date of revocation of that NAAQS; (ii) the

area's classification under 40 CFR § 51.903

for the 1997 ozone NAAQS as of the date a

permit is issued or as of the effective date of

revocation of that NAAQS, whichever is

earlier; and (iii) the area's classification

under 40 CFR § 51.1103 for the 2008 ozone

NAAQS.

(b)(i) An area remains subject to the

obligations for a revoked NAAQS under

paragraph (a) until either (1) the area is

redesignated to attainment for the 2008 ozone

NAAQS; or (2) EPA, after notice-andcomment rulemaking, approves a showing for

the area in a procedure that succeeds the

redesignation process for a revoked NAAQS,

and which serves the same purpose of ending

anti-backsliding requirements as would

redesignation, were the NAAQS in effect.

Under this redesignation substitute

procedure for a revoked NAAQS, and for this

limited anti-backsliding purpose, the area

must show that it has attained that revoked

NAAQS due to permanent and enforceable

emission reductions, and it must demonstrate

that it will maintain that NAAQS for ten

years from the date of EPA's approval of this

showing.

(ii) Effect of redesignation to attainment for

2008 ozone NAAQS or approval of a

redesignation substitute for a revoked ozone

NAAQS. After redesignation to attainment

for the 2008 ozone NAAQS, the state may

request that provisions for nonattainment

NSR be removed from the SIP. After EPA

approval of a redesignation substitute for a

revoked NAAQS, the state may request that

provisions for nonattainment NSR for the

revoked NAAQS be removed from the SIP.

Upon removal of nonattainment new source

review obligations for a revoked NAAQS, the

state remains subject to the obligation to

adopt and implement the requirements for

nonattainment new source review that apply

or applied to the area for the remaining

applicable NAAQS consistent with paragraph

(a).

[FR Doe. 2013-13233 Filed 6-5-13; 8:45 am]

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