*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 1 of 223

6560-50-P 

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 50, 51, 52, 70 and 71

[EPA-HQ-OAR-2010-0885, FRL-9917-29-OAR]

RIN 2060-AR34

Implementation of the 2008 National Ambient Air Quality Standards for Ozone: 

State Implementation Plan Requirements 

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

SUMMARY: The U.S. Environmental Protection Agency (EPA) is establishing a final 

rule for implementing the 2008 ozone national ambient air quality standards (NAAQS) 

(the “2008 ozone NAAQS”) that were promulgated on March 12, 2008. This final rule 

addresses a range of nonattainment area state implementation plan (SIP) 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), major new source review (NSR), 

emission inventories, and the timing of SIP submissions and of compliance with emission 

control measures in the SIP. Other issues also addressed in this final rule are the 

revocation of the 1997 ozone NAAQS and anti-backsliding requirements that apply when 

the 1997 ozone NAAQS is revoked. If the primary or secondary ozone NAAQS are 

revised in the future, the EPA expects that this rule will help facilitate implementation of 

any new standards.

DATES: This final rule is effective on [INSERT DATE 30 DAYS FROM DATE OF 

PUBLICATION IN THE FEDERAL REGISTER].
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 2 of 223

ADDRESSES: The EPA has established a docket for this action under Docket ID No. 

EPA-HQ-OAR-2011-0885. All documents in the docket are listed in 

http://www.regulations.gov. Although listed in the index, some information is not 

publicly available, i.e., confidential business information (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 

http://www.regulations.gov or in hard copy at the EPA Docket Center, Room Number 

3334 in the EPA William Jefferson Clinton West Building, located at 1301 Constitution 

Avenue, NW, Washington, D.C. 20004. 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, and the telephone number for 

the Air Docket is (202) 566-1742. 

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 (206) 553-1778, 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) 54l-5208, or by

email at stackhouse.butch@epa.gov.

SUPPLEMENTARY INFORMATION: 

I. General Information

A. Does this action apply to me?
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 3 of 223

Entities potentially affected directly by this final rule include state, local and tribal 

governments. Entities potentially affected indirectly by this final rule include owners and 

operators of sources of emissions [volatile organic compounds (VOCs) and nitrogen 

oxides (NOx)] that contribute to ground-level ozone formation. 

B. Where can I get a copy of this document and other related information?

In addition to being available in the docket, an electronic copy of this notice will 

be posted at http://www.epa.gov/air/ozonepollution/actions.html#impl under “recent 

actions.”

C. 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. Where can I get a copy of this document and other related information?

C. How is this notice organized? 

II. Background

III. What are the state implementation plan requirements for the 2008 ozone 

NAAQS?

A. What is the deadline for submitting nonattainment area SIP revisions 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 vehicle 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 an area qualify for a 1-year attainment deadline extension? 

M. How will the EPA identify rural transport areas?

N. What are the special requirements for multi-state nonattainment areas?

O. How will the EPA address interstate and international ozone transport?

P. How will the section 182(f) NOx provisions be handled?
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 4 of 223

Q. Emissions Reduction Benefits of Energy Efficiency/Renewable Energy

Policies and Programs, Land Use Planning and Travel Efficiency

R. Efforts to Encourage a Multi-pollutant Approach When Developing 2008 

Ozone SIPs

S. What are the requirements for the Ozone Transport Region (OTR)?

T. Are there any additional requirements related to enforcement and compliance?

U. What are the requirements for addressing emergency episodes?

V. How does the “Clean Data Policy” apply to the 2008 ozone NAAQS?

W. How does this final rule apply to tribes? 

X. What collaborative program has the EPA implemented for the 2008 ozone 

NAAQS?

IV. What are the anti-backsliding requirements for the revoked 1997 ozone NAAQS?

A. What is the effective date of the revocation of the 1997 ozone NAAQS?

B. What are the applicable requirements for anti-backsliding purposes following

the revocation of the 1997 ozone NAAQS?

C. Application of Transition Requirements to Nonattainment and Attainment 

Areas

D. Satisfaction of Anti-backsliding Requirements for an Area

E. How will the EPA’s determination of attainment (“Clean Data”) regulation 

apply for purposes of the anti-backsliding requirements?

F. 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. Congressional Review Act

L. Determination under Section 307(d)

M. Judicial Review

Appendix A to Preamble — Glossary of Terms and Acronyms 

Appendix B to Preamble — List of Areas Nonattainment for the 2008 Ozone NAAQS in 

Addition to a Prior Ozone NAAQS

Statutory Authority

List of Subjects
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 5 of 223

II. Background

On March 12, 2008,1the EPA announced revisions to the primary and secondary

NAAQS for ozone to a level of 0.075 parts per million (ppm) (annual fourth-highest daily

maximum 8-hour concentration, averaged over 3 years).2Since 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 standards." 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.

When the EPA revises a NAAQS for a particular criteria pollutant, it considers 

the extent to which existing EPA regulations and guidance are sufficient to implement the 

standard and whether any revisions or updates to those regulations and guidance would 

be helpful or appropriate in facilitating the implementation of the revised standard by 

states, tribes, and local agencies. The CAA does not require that the EPA promulgate new 

implementing regulations every time that a NAAQS is revised. Likewise, the CAA does 

not require the issuance of additional implementing regulations or guidance by the EPA 

before a revised NAAQS becomes effective. The plain language of the CAA and existing 

EPA regulations may be sufficient in many cases to enable the EPA and the states to 

begin working together to implement a revised NAAQS. However, where the nature of 

revisions to a NAAQS indicate that additional regulations or guidance (or revisions to 

 

1

See 73 FR 16436.

2

For a detailed explanation of the calculation of the 3-year 8-hour average, see 40 CFR 

part 50, Appendix I.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 6 of 223

existing regulations or guidance) may be helpful, or even necessary (e.g. to implement 

unique aspects of the revised standard), the EPA endeavors to provide those regulations 

and guidance to facilitate preparation of SIPs. It is important to note, however, that the 

existing EPA regulations in 40 CFR part 51 applicable to SIPs generally and to particular 

pollutants continue to apply even without such updates. This rule revises existing 

regulations and guidance as necessary and appropriate to aid in the implementation of the 

2008 ozone NAAQS.

Promulgation of a NAAQS triggers a requirement for the EPA to designate areas 

as nonattainment, attainment, or unclassifiable, and to classify the areas at the time of 

designation. The EPA has already completed area designations and associated 

classifications for the 2008 NAAQS, and they were effective July 20, 2012 (May 21, 

2012; 77 FR 30088). 

The EPA also undertook notice and comment rulemaking on the Clean Air Act’s 

(CAA or Act) nonattainment area provisions for the 2008 ozone NAAQS, which is 

complete with this final rule. The public comment period on the notice of proposed 

rulemaking (NPRM) for the SIP Requirements Rule ran from June 6, 2013, to September 

4, 2013. The EPA received 54 comment submissions on the NPRM. The preamble to this 

final rule discusses the comments received and how they were considered by the EPA in 

general terms. The Response to Comments document provides more detailed responses to 

the comments received. The public comments received on the NPRM and the EPA’s 

Response to Comment document are posted in the docket at www.regulations.gov

(Docket ID No. EPA-HQ-OAR-2011-0885).
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 7 of 223

We are taking multiple actions in this rule pertaining to submittal deadlines and 

specific CAA requirements for the content of SIPs for the 2008 ozone NAAQS. As a 

general matter, this final rule follows the same basic principles and approach that the 

EPA applied to interpreting the CAA’s part D, subpart 2 ozone nonattainment area 

requirements in the EPA’s development of the implementation rules for the 1997 ozone 

NAAQS.4 Additionally, we are revoking the 1997 ozone NAAQS for all purposes and 

establishing anti-backsliding requirements for areas that remain designated nonattainment 

for the revoked NAAQS.

Regarding the format of the following sections of this preamble, on topics where 

we proposed an action, we include detailed information about what we proposed, what 

we are finalizing and our rationale, as well as responses to significant comments. With 

topics where we did not propose any action, we provide guidance on that topic in the 

preamble. For a comprehensive look at all comments received and responses to those 

comments, please refer to the Response to Comment document in the docket.

III. What are the state implementation plan requirements for the 2008 ozone 

NAAQS?

A. What is the deadline for submitting nonattainment area SIP revisions for the 2008 

ozone NAAQS?

1. Summary of the Proposal

For purposes of the 2008 ozone NAAQS, the EPA proposed two alternatives 

regarding the deadlines for submitting the various elements of an ozone nonattainment 

 

4

See the Phase 1 (69 FR 23951, April 30, 2004) and Phase 2 (70 FR 71612, November 

29, 2005) Rules.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 8 of 223

area state implementation plan, including emission inventories, RACT SIPs and emission 

statement SIPs, Ozone Transport Region (OTR) RACT, 15 percent rate-of-progress 

(ROP) plans and Moderate area attainment demonstrations, and the 3 percent per year 

RFP plans and attainment demonstrations for Serious and higher areas. The two proposed 

alternatives for SIP due dates were 1) the period of time provided by CAA section 182, 

and 2) a state’s choice of either submitting all elements in accordance with the timeframe 

provided by section 182 or submitting all elements under a consolidated approach, no 

later than 30 months after the effective date of designation. The consolidated SIP 

approach would provide more time for some SIPs, and less time for others. 

The EPA also proposed a timeframe, for Serious and higher areas, of 4 years for 

states to develop their attainment demonstrations and 3 percent per year RFP plans. This 

was a proposed change from the approach used in the implementation of the 1997 ozone 

NAAQS, but is consistent with the timeframe allowed under section 182.

Additionally, the EPA requested comment on its proposal to align the due date of 

the vehicle inspection and maintenance (I/M) program SIP with the due date of the 

attainment demonstration SIP so that both are due at the same time. This was similarly a 

proposed change from the current I/M SIP deadline for ozone nonattainment areas (1 year 

after the effective date of designation and classification under a revised ozone standard).

We proposed that states with areas initially classified as Severe or Extreme for the 

2008 ozone NAAQS would be required to submit a CAA section 185 SIP no later than 10 

years after the effective date of designation and classification for the 2008 ozone 

NAAQS.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 9 of 223

Finally, the EPA proposed that all SIP due date timeframes would run from the 

effective date of nonattainment designations for the 2008 ozone NAAQS.

2. Final Action

We are finalizing the approach that the SIP elements listed in the proposal are due 

based on the timeframes provided in section 182. That is, states with areas designated 

nonattainment have 2 years from the effective date of nonattainment designation5to 

submit emission inventories (required by section 182(a)(1)), RACT SIPs (section 

182(b)(2)) and emission statement SIPs6(section 182(a)(3)(B)); 3 years to submit 15 

percent ROP plans (section 182(b)(1)) and Moderate area attainment demonstrations 

(section 182(b)(1)); and 4 years to submit 3 percent per year7 RFP plans (section 

182(c)(2)) and attainment demonstrations (section 182(c)(2)) for Serious and higher 

areas. This approach conforms to the manner in which the 1997 ozone NAAQS was 

implemented, with the exception of the 4th year provided to areas classified Serious and 

higher to develop attainment demonstration SIPs for the 2008 ozone NAAQS. 

Additionally, we note that OTR states that owe SIPs due to section 184 must meet the 

same SIP due dates listed previously.

The EPA is also finalizing the alignment of the vehicle I/M program SIP due date 

with the due date for the attainment demonstration SIP for the area. This will be achieved 

by revising 40 CFR 51.372(b)(2) of the vehicle I/M rule8to replace the current 1-year 

 

5

The effective date of designations was July 20, 2012. See 77 FR 30088.

6

See section III.J.2 of this rule for additional information on emission statements.

7

Typically submitted in 3-year increments, thus as 9 percent RFP plans that produce 

average reductions of 3 percent per year.

8

See 71 FR 17705, April 7, 2006.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 10 of 223

deadline for vehicle I/M program SIP submissions with a deadline of no later than the 

due date for submitting the area’s attainment demonstration SIP.

The EPA is also finalizing the due date of the section 185 penalty fee program

SIPs from areas initially classified as Severe or Extreme for the 2008 ozone NAAQS as 

10 years from the effective date of designations. For areas that are reclassified to Severe 

or Extreme after the original 2008 designations and classifications, the EPA will establish 

an appropriate fee program SIP submission deadline as part of the reclassification action.

We note that in the proposed SIP Requirements Rule, the EPA did not include a 

specific due date for nonattainment NSR SIPs for the 2008 ozone NAAQS. This final 

rule includes a due date of 3 years from the effective date of designation for states with 

nonattainment areas for the 2008 ozone NAAQS to submit their nonattainment NSR SIPs

as a logical outgrowth of the proposed rule and the comments submitted. Additional 

discussion of this due date and our rationale for that date are provided in the following 

Comments and Responses section, which discusses NSR requirements in greater detail.

As proposed, the EPA is finalizing that these various SIP due dates are established 

based on the effective date of designations for the 2008 ozone NAAQS. For areas 

initially designated nonattainment, this effective date was July 20, 2012.9

3. Rationale

After considering comments questioning the legal supportability of the 

consolidated approach, the EPA has concluded that we do not have a sufficient statutory

 

9

See 77 FR 30088, May 21, 2012; and 77 FR 34221, June 11, 2012.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 11 of 223

basis to provide this flexibility.

10 Therefore, the EPA is finalizing the approach that the 

various SIP elements are due based on the timeframes provided in section 182.

When implementing the 1997 ozone NAAQS, the EPA provided areas classified 

as Serious and higher only 3 years to develop and submit attainment demonstration SIPs. 

The EPA is now providing the maximum of 4 years to develop and submit these SIPs, 

consistent with the CAA. The policy reasons that existed at the time the Phase 2 rule was 

developed (i.e., the need for timing consistency between subpart 1 and subpart 2 areas 

within the same region, the timing of the large-scale interstate transport modeling 

underway at the time, and the option of coordinated planning with the similarly timed 

PM2.5 SIPs) are not generally circumstances faced currently by the Serious and higher 

areas. Thus, the EPA concludes that it is not appropriate to shorten the time period 

allowed by the Act to submit these SIPs.

Regarding the alignment of due dates for attainment demonstration SIPs and 

vehicle I/M program SIPs, the EPA believes this allows the best use of state resources. 

Areas need to determine together the total amount of emissions reductions needed for 

attainment and the amount of emissions reductions to achieve from different sectors and 

strategies (including vehicle I/M), before designing a vehicle I/M program capable of 

achieving the necessary reductions to demonstrate attainment. Requiring submittal of a 

vehicle I/M program in advance of an attainment demonstration for the current or future 

ozone standard could result in significant unnecessary work on modeling and SIP 

revisions if revisions to the vehicle I/M program are later deemed necessary to integrate 

 

10 The EPA believes that the recent ruling by the D.C. Circuit Court on the Classifications 

Rule (77 FR 30160, May 21, 2012) impacts the level of flexibility EPA is able to provide

regarding SIP due dates. See NRDC v. EPA (D.C. Cir. No. 12-1321, Dec 23, 2014).
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 12 of 223

with the overall attainment strategy. Although no new vehicle I/M programs are required 

under the initial designations and classifications for the 2008 ozone NAAQS, this change 

will apply to any current Marginal areas that may be required to adopt vehicle I/M as a 

result of missing an attainment deadline and being reclassified to a higher nonattainment 

classification in the future. 

We believe the submittal date for the section 185 penalty fee program SIPs is 

consistent with section 182(d)(3) of the CAA , which provided slightly more than 10 

years for submission of the fee program SIP revision for areas designated as 

nonattainment and classified as Severe or Extreme by operation of law in 1990 for the 1-

hour ozone NAAQS.

The EPA has historically based the due date of the SIPs discussed previously

from the effective date of designations and sees no reason to depart from that practice 

here.

4. Comments and Responses

Comment: Several commenters supported the idea of a consolidated SIP 

submittal, but thought that the 30 months provided in the proposal for the consolidated 

submittal was not sufficient to entice any states to take advantage of the option. Many 

commenters expressed a concern that the EPA did not have a sufficiently firm legal basis 

to allow states to delay any of the required SIP submissions beyond the timeframes 

provided in the statute, nor to require early submittal of any SIPs.

Response: The EPA proposed the consolidated approach in an attempt to provide 

flexibility and a potential burden reduction option to states. After considering the 

comments questioning the legal supportability of this approach, we concluded that at this 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 13 of 223

time we do not have a sufficient basis to support this flexibility. Thus, we are not 

finalizing the consolidated approach. 

Comment: One commenter disagreed with the EPA’s proposal that the SIP 

submittal due dates in subpart 2 should run from the effective date of designations. The 

commenter believed that the SIP due dates must run from the date the designations are 

signed.

Response: We disagree with the commenter that the CAA mandates the SIP 

submittal due dates in subpart 2 must run from the date the designations are signed 

instead of the effective date of designations. The EPA believes that its historic practice of 

establishing SIP due dates that run from the effective dates of designations, as it did for 

the 1997 ozone NAAQS, is appropriate and legally supportable. Therefore, we are not 

deviating from this practice. 

Comment: Two commenters supported the EPA’s proposal to align the vehicle 

I/M program SIP and attainment SIP deadlines, while two other commenters stated that 

any change to the vehicle I/M program SIP deadline needs to be consistent with the 

deadlines prescribed in the CAA and not delay implementation of required I/M programs.

Response: The EPA’s decision to align the I/M SIP submittal deadline with the 

deadline for submitting the attainment demonstration will not impact the emission 

reductions achieved through the vehicle I/M program requirement because we are not 

changing the deadline by which affected areas must begin testing and repairing vehicles. 

Further, the EPA believes that it must, of necessity, provide a reasonable interpretation of 

the CAA’s vehicle I/M program SIP submission deadline because the Act’s basic vehicle 

I/M program SIP submission requirement of “immediately upon enactment” of the CAA 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 14 of 223

is impossible to meet. Lastly, given the degree to which the overall attainment 

demonstration will rely on emission reductions derived from vehicle I/M, it is reasonable 

and cost-effective to allow states to coordinate these two planning requirements.

Comment: One commenter noted that the proposal was silent about the due date 

of the nonattainment NSR SIP. The commenter stated that the EPA should clearly 

establish the associated due dates for nonattainment NSR SIP submittals.

Response: The commenter is correct that the discussion of SIP submittal 

deadlines in the proposed SIP Requirements Rule did not include the date on which states 

must submit for the EPA’s approval the required nonattainment NSR SIP applicable to 

the 2008 ozone NAAQS. This final rule includes a deadline of 3 years from the date of 

designation for states to submit their nonattainment NSR program SIPs for the 2008 

ozone NAAQS. This date is consistent with the submittal date that the EPA provided 

states to develop an approvable nonattainment NSR program for the 1997 ozone NAAQS 

in the Phase 2 Rule, and is consistent with CAA section 172(b), which states that the EPA 

shall establish a date no later than 3 years from the date of the nonattainment 

designation.11 Consequently, the EPA does not believe it has discretion to set a date 

longer than 3 years, and also concludes that states may need up to 3 years to develop and 

submit any necessary SIPs. 

In the Phase 2 Rule, we indicated that the 3-year SIP deadline facilitates 

coordination of NSR program changes with the submission of the attainment plan, which 

was also due within 3 years. We recognize that CAA section 182(a)(2)(C)(i), under the 

heading “Corrections to the State implementation plans – Permit programs” contains a 

 

11 See 70 FR 71612 at 71672 and 71683 (November 29, 2005).
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 15 of 223

requirement for states to submit NSR SIP revisions to meet the requirements of CAA 

sections 172(c)(5) and 173 within 2 years after the date of enactment of the 1990 CAA 

Amendments. As explained in our Phase 2 rulemaking, we believe the submission of 

NSR SIPs due on November 15, 1992 fulfilled this CAA requirement.12 Accordingly, we 

do not believe that the 2-year deadline contained in section 182(a)(2)(C)(i) applies to 

subsequent NSR SIPs for revised ozone standards, including the nonattainment NSR SIPs 

for implementing the 8-hour ozone NAAQS. In addition, we note that while section 182 

specifies the offset ratios or major source thresholds to be included in the revised NSR 

SIP, it is silent as to the SIP submission deadline (see, e.g., section 182(a)(4), section 

182(b)(5) and section 182(c)). Given this gap in section 182, we believe it is reasonable 

to look to section 172(b) in establishing a deadline for submission of the nonattainment 

NSR SIP. While the EPA did not propose a date on which states must submit for the 

agency’s approval the required nonattainment NSR SIP, stakeholders could have 

anticipated that we would continue our prior practice unless we proposed to take a 

different course. In this rule, we are continuing our prior practice, as reflected in the 

Phase 2 rule for the 1997 ozone NAAQS, of including a deadline of 3 years from the date 

of designation for states to submit their nonattainment NSR program SIPs.

B. What are the requirements for modeling and attainment demonstration SIPs?

1. Marginal Areas

Under CAA section 182(a), Marginal areas have up to 3 years from the effective 

date of designation to attain the NAAQS, and are not required to submit an attainment 

demonstration SIP. The EPA offers assistance to states as they consider the most 

 

12 Ibid
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 16 of 223

appropriate course of action for Marginal areas that may be at risk of failing to meet the 

NAAQS within the applicable 3 year timeframe. States can choose to adopt additional 

controls for such areas or they can seek a voluntary reclassification to a higher 

classification category. The EPA believes that voluntary reclassification for areas that are 

not likely to attain by their attainment date is an appropriate action that will facilitate 

focus on developing the attainment plans required of Moderate and above areas.

2. Moderate Areas

a. Summary of the Proposal

The EPA proposed to continue to require states with an area classified as 

Moderate to submit an attainment demonstration,

13 due no later than 3 years from the 

effective date of an area’s designation, based on photochemical modeling or another 

equivalent analytical method that is determined to be at least as effective as that which is 

required under the Act for Serious and above areas and multi-state nonattainment areas.14

This is the same approach used in the implementation rules for the 1997 ozone NAAQS. 

40 CFR 51.908(c).

 

13 An attainment demonstration consists of: (1) technical analyses, such as base year and 

future year modeling of emissions which identifies sources and quantifies emissions from 

those sources that are contributing to nonattainment; (2) analyses of future year emissions 

reductions and air quality improvement resulting from existing (i.e., already-adopted or 

“on the books”) national, regional and local programs, and potential new local measures 

needed for attainment, including RACM and RACT for the area; (3) a list of adopted 

measures (including RACT) with schedules for implementation and other means and 

techniques necessary and appropriate for demonstrating attainment as expeditiously as 

practicable but no later than the outside attainment date for the area’s classification; and 

(4) a RACM analysis to determine whether any additional RACM measures could 

advance attainment by one year.

14 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(j)(1)(B)).
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 17 of 223

b. Final Action and Rationale

The EPA is finalizing requirements for Moderate areas as proposed. The EPA 

continues to believe the requirements for Moderate areas are reasonable, primarily

because photochemical modeling is generally available and reasonable to employ. 

However, this requirement also 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 guidance15

and consult their appropriate EPA Regional Office before proceeding with alternative 

analyses.

c. Comments and Responses

Comment: Some commenters believed that the EPA exceeds its authority to 

require states with Moderate nonattainment areas to use photochemical modeling and 

thus, undermines states’ discretionary options allowed under the statute. 

Response: The EPA disagrees with the commenters and believes that we have the 

authority to require states to use appropriate modeling to predict the effect of emissions 

on air quality of any NAAQS as we did for the 1997 ozone NAAQS. Section 

182(c)(2)(A) contains specific requirements for states to use photochemical modeling or 

another similarly effective equivalent modeling method in their SIPs for Serious and 

 

15 The modeling guidance can be found in the EPA’s “Guidance on the Use of Models 

and Other Analyses for Demonstrating Attainment of Air Quality Goals for Ozone, 

PM2.5, and Regional Haze,” at the following website: 

http://www.epa.gov/scram001/guidance/guide/final-03-pm-rh-guidance.pdf.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 18 of 223

above nonattainment areas. Additionally, CAA Section 182(b)(1)(A)(i) requires RFP 

plans for Moderate areas to provide for such specific annual reductions in emissions of 

VOC and NOx as necessary to attain the NAAQS by the applicable attainment date. The 

EPA has interpreted this as a requirement for Moderate areas to submit an attainment 

demonstration. Since photochemical modeling is the most scientifically rigorous 

technique to determine NOx and/or VOC emissions reductions needed to show attainment 

of the NAAQS and is readily available, we are requiring photochemical modeling (or a 

similarly effective equivalent modeling method) for all attainment demonstrations 

(including Moderate areas). The authority for this requirement for Moderate areas is 

derived from section 110(a)(2)(k), which gives the Administrator the authority to require 

air quality modeling for the purpose of predicting the effect on ambient air quality of 

emissions of any air pollutant for which there is an established NAAQS. 

Comment: One commenter stated that allowing up to 3 years to submit an 

attainment demonstration is not sufficient time to allow for the emissions inventory

development and modeling required for an attainment demonstration. The commenter 

wanted the EPA to allow “the original four year timeline” to submit attainment 

demonstrations.

Response: Section 182 contains two attainment demonstration submittal dates 

that depend on an area’s classification. For Moderate areas, section 182(b)(1)(A) requires 

a plan within 3 years of the designation date. For Serious and above areas, section 

182(c)(2) requires a plan within 4 years of the designation date. In the Phase 2 Rule, 70 

FR 71612, at 71639, the EPA required all attainment demonstrations to be submitted 

within 3 years of designation. However, for this rule, the EPA proposed to allow the 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 19 of 223

original CAA deadlines of up to 3 years for Moderate areas and up to 4 years for Serious 

areas, 78 FR 34178, at 34183. While the EPA agrees that the development of emissions 

inventories and modeling for attainment demonstrations can be a lengthy process, the 

statute does not allow for more than 3 years for a Moderate area attainment 

demonstration. However, since the statute does allow up to 4 years to submit a Serious 

(and above) area attainment demonstration, in this rule we are allowing the maximum 

amount of time provided by the statute for such areas. Therefore, the EPA is finalizing 

the attainment demonstration submittal dates as proposed; up to 3 years from the 

effective date of designation for Moderate areas and up to 4 years from the effective date 

of designation for Serious and above areas.

Comment: One commenter stated that there are now a number of rural areas in the 

country with wintertime ozone attainment issues, and recommended that the EPA exempt 

rural wintertime ozone nonattainment areas from this requirement because a wintertime 

photochemical grid model or proven alternative analytical method has not been 

developed. The commenter argued that it is the EPA’s responsibility to develop and test 

models that can be used consistently across the nation.

Response: The EPA recognizes that the causes of rural wintertime ozone 

exceedances are different than typical summer exceedances. However, the CAA does not 

distinguish between summer and winter ozone areas. Areas with wintertime violations are 

designated as nonattainment based on the same classification thresholds as all other 

nonattainment areas. They therefore must meet all of the appropriate CAA requirements 

for their particular nonattainment classification. Nonattainment areas classified as 

Moderate and above, even those that may experience wintertime ozone problems, are 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 20 of 223

required to submit an attainment demonstration. However, there is flexibility in 

determining analytical methods to be used in developing the demonstration. The EPA 

will consider the nature of the ozone problem in reviewing available models and potential 

alternative methods for demonstrating attainment. There is also ongoing research that has 

successfully identified enhancements in modeling science which have improved 

photochemical model performance in wintertime ozone situations. Some of these science 

updates may be available for states to use in their attainment demonstrations by the time 

modeling is needed for areas with wintertime ozone problems.

3. Serious and Above Areas

For Serious and higher-classified areas, section 182(c)(2)(A) states that attainment 

demonstrations must be submitted within 4 years of the designation date and be based on 

photochemical grid modeling or an equivalent effective method. We continue to believe 

that photochemical modeling is the most technically credible method of estimating future 

year ozone concentrations based on projected VOC and NOx precursor emissions. 

Therefore, consistent with the CAA and previous implementation rules, states with areas 

classified as Serious and higher are required to submit attainment demonstrations within 

4 years of the effective date of designation, 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 and Other 

Analyses for Demonstrating Attainment of Air Quality Goals for Ozone, PM2.5, and 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 21 of 223

Regional Haze.”16 This guidance document, as it currently exists, can be used by states 

for purposes of developing attainment demonstration SIPs for the 2008 ozone NAAQS. 

Commenters requested that the EPA update its modeling guidance pertinent to 

ozone and that it be made available in advance of SIP submission deadlines. The EPA 

agrees with this comment and is therefore currently updating the modeling guidance, and 

we intend to issue the updated guidance prior to the SIP deadlines. 

5. Capturing High Emissions Days in Inventories 

In the proposed SIP Requirements Rule, the EPA did not propose changes to 

modeling requirements for modeling high emissions days. The current modeling 

guidance addresses, among many other considerations, episode selection and accounting 

for variability in emissions and meteorology.

Additionally, there is a known phenomenon called High Electricity Demand Days 

(HEDD), which are time periods with relatively higher NOx emissions from electric 

utilities during high energy demand periods. Since NOx emissions from electric power 

generation are a significant contributor to the total NOx emissions for many ozone 

nonattainment areas, states that experience this phenomenon should ensure that these 

emissions are included in photochemical modeling of episode days on which the HEDD 

phenomenon occurs. In order to properly account for HEDD emissions in the modeling, 

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 EPA’s current 

 

16 The modeling guidance can be found at the following website: 

http://www.epa.gov/scram001/guidance/guide/final-03-pm-rh-guidance.pdf.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 22 of 223

modeling guidance17 already addresses episode selection and development of accurate 

emissions input information during peak ozone periods. Some commenters urged the 

EPA to update the current modeling guidance. The EPA is in the process of updating the 

current modeling guidance and intends to more specifically address modeling of the 

HEDD phenomenon in that guidance.

The EPA did not propose changes in this rule to the emission inventory

requirements for capturing high emissions days but received many comments on the rule 

requirements that should have been directed to EPA guidance documents under 

development for ozone emission inventories (see section III.3 of this preamble). They

will be considered when these guidance documents are reviewed. The EPA does address 

the comments referring to the emission inventory guidance in the Response to Comments 

document for this rule. The comments do not directly impact the outcome of this rule. 

The EPA responses are provided for completeness and to provide these commenters with 

more information regarding the EPA’s intentions for guidance development related to 

HEDD emissions.

6. Modeled Attainment Test

The EPA’s attainment demonstration modeling guidance addresses the modeled 

attainment test for ozone, which 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 anticipated future 

changes in emissions. Future air quality is estimated by adjusting recent monitored values 

 

17 http://www.epa.gov/scram001/guidance/guide/final-03-pm-rh-guidance.pdf.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 23 of 223

by the modeled relative response to projected future changes in emissions.18 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 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/scram001/modelingapps_mats.htm.

7. What future year(s) should be modeled in attainment demonstrations?

a. Summary of the Proposal

The EPA proposed that for the 2008 ozone NAAQS, control measures relied upon 

to demonstrate attainment should be implemented by the beginning of the last full ozone 

 

18 The EPA recommends using ambient design values that are consistent with the official 

design values as calculated according to 40 CFR part 50 Appendix N (PM2.5 NAAQS) 

and Appendix P (8-hour ozone NAAQS). This includes flagging and removing eventinfluenced data that meet the requirements set forth in the Exceptional Events Rule (40 

CFR 50.14). In general, air agencies flag data that they believe may qualify for removal 

as an exceptional event and are then responsible for developing and providing 

documentation to the EPA to support these requests for exclusion. EPA Regional Offices 

review exceptional events claims and decide whether to concur with each individual 

claim. Once the EPA concurs with an air agency’s request, the event-influenced data are 

officially noted and removed from the data set used to calculate official design values. In 

some cases, historical ambient data may meet the requirements of the Exceptional Events 

Rule, but remain in the data set used to calculate official design values. Air agencies may

not have flagged these data as being potentially influenced by exceptional events, or may

have flagged these data but not submitted the required documentation. Air agencies 

sometimes do not closely examine potential event-influenced data that do not affect 

attainment/nonattainment decisions. However, the influence of potential event-influenced 

data may affect future year projections that are part of the modeled attainment 

demonstration. If potential exceptional event-influenced data from the historical record 

are likely to affect the outcome of the modeled attainment demonstration, we encourage 

air agencies to consult with their EPA regional office to determine how best to handle 

this situation.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 24 of 223

season prior to the area’s attainment date. Accordingly, the future year attainment 

modeling should not extend beyond that time period.

b. Final Action and Rationale

The EPA is finalizing this action as proposed. The EPA stated in the proposal that 

the future modeling year should be selected such that all emissions control measures 

relied on for attainment will have been implemented by that year. This same approach 

was used for the 1997 ozone NAAQS and we continue to believe it is an appropriate 

approach for modeling of control measures. 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 preceding the attainment date will result in 

ozone concentrations that meet the level of the standard.19

Because an area must attain “as expeditiously as practicable,” additional 

considerations are necessary before a future attainment date can be established. For 

example, although the latest attainment date under the Clean Air Act for a Moderate area 

designated in 2012 would be six years after the effective date of designation, July 20, 

2018,under the 2008 ozone NAAQS Classifications Rule, see NRDC v. EPA, the state 

would need to conduct an analysis of reasonably available control measures (RACM) 

(CAA section 172(c)(1)) to determine if it can advance the area’s attainment date by at 

least a year.20 Results of the RACM analysis may indicate attainment can be achieved 

 

19 Note that for purposes of the 2008 ozone NAAQS, a determination of attainment (or 

failure to attain), which the EPA is required to make after the attainment date has passed, 

is based on the most recent 3 complete years of ambient 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.

20 See section III.D.2 of this proposal for a discussion of RACM analysis requirements.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 25 of 223

earlier through implementation of reasonably available control measures prior to July 20 

of an earlier year. . For instance, if emission reductions sufficient to demonstrate 

attainment are implemented prior to July, 2016, , then in this example the attainment year 

and the future projection year should be 2016. The proposal for this rulemaking also 

stated21 that, 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.

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.

c. Comments and Responses

Comment: Many commenters supported the EPA’s proposal; however, one 

commenter believed that it should not matter when the control measure is implemented if 

the demonstration shows attainment by the attainment date. The commenter provided a 

specific example of when a large point source plans to shut down in the middle of an 

ozone season. 

Response: The EPA continues to believe that modeling the emission reductions 

implemented by the beginning of the last full ozone season preceding the final year of the 

statutory attainment date is reasonable. The effect on attainment of the NAAQS of 

emissions reductions that may occur sometime after the start of an ozone season is 

necessarily uncertain, and cannot be reliably counted on to ensure modeled attainment in 

 

21 See 78 FR 34178 at p. 34191 (June 6, 2013).
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 26 of 223

that year. Information about source shutdowns or other emissions reductions that are not 

accounted for in the modeling can be used as part of a weight of evidence demonstration 

(i.e., qualitative adjustment based on reductions from additional measures) if necessary to 

demonstrate timely attainment. 

Comment: One commenter supported the proposal to allow modeling of up to the 

last year of the statutory attainment date, but disagreed with the RACM requirement to 

evaluate if attainment can be advanced. The commenter disagreed with anything that 

would require the demonstration of attainment to be earlier than is required by statute.

Response: The EPA disagrees with the commenter. A demonstration of 

attainment would not be required earlier than is required by statute. The statute provides 

maximum dates by which attainment must be achieved, but in all cases the statute 

requires that attainment must be achieved as expeditiously as practicable but no later than 

the maximum date. Therefore, a RACM analysis to examine whether the attainment date 

can be advanced is required by the statute as part of all attainment demonstrations. Note 

that a RACM analysis is not required for Marginal nonattainment areas since an 

attainment demonstration is not required for those areas.

8. Multi-state Nonattainment Areas 

Under CAA section 182(j), each state located in a portion of a multi-state ozone 

nonattainment area is required 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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 27 of 223

aspects of nonattainment SIPs, including the development of an attainment 

demonstration. The EPA did not propose any changes to this longstanding policy, and we 

did not receive adverse comments on this item.

C. What are the RFP requirements for the 2008 ozone NAAQS?

1. Overview of RFP requirements

Areas that are designated nonattainment for ozone must achieve reasonable 

further progress (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; RFP is defined in section 171(1) as “such annual incremental reductions 

in emissions” as required by part D or as required by the Administrator for ensuring 

attainment of the NAAQS. 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 within 6 years after November 15, 1990. We often refer to this 

RFP requirement as rate-of-progress (ROP). For Serious and above areas, section 

182(c)(2)(B) requires an additional 3 percent per year reduction in VOC emissions, 

averaged over consecutive 3-year periods, starting within 6 years after November 15, 

1990 and until the attainment date. Section 182(c)(2)(B) allows NOx reductions to be 

substituted for VOC reductions under certain conditions to meet this RFP requirement. 

Note that the 15 percent requirement must be met by the end of the 6-year period 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 28 of 223

regardless of when the nonattainment area attains the NAAQS. The 3 percent per year 

RFP requirement for Serious and above areas applies each year until the attainment date.

The EPA previously interpreted the requirements of subpart 2 as they would apply 

to areas for the 1997 ozone NAAQS, and we proposed to follow essentially the same 

interpretation with regard to the 2008 ozone NAAQS. With respect to RFP requirements, 

we interpret the 15 percent VOC emission reduction requirement in section 182(b)(1) 

such that an area that has already met the 15 percent requirement for VOC under either 

the 1-hour ozone NAAQS or the 1997 ozone NAAQS (for the first 6 years after the RFP 

baseline year for the prior ozone NAAQS) would not have to fulfill that requirement 

again. Instead, such areas would be treated like areas covered under section 172(c)(2) if 

they are classified as Moderate for the 2008 ozone NAAQS, and would need to meet the 

RFP requirements under section 182(c)(2)(B) if they are classified as Serious or above 

for the 2008 ozone NAAQS.

22 For the purposes of the 2008 ozone NAAQS, the EPA is 

interpreting section 172(c)(2) to require such Moderate areas to obtain 15 percent ozone 

precursor emission reductions over the first 6 years after the baseline year for the 2008 

ozone NAAQS, and is interpreting section 182(c)(2)(B) to require such 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, NOx emission 

reductions could be substituted for VOC reductions. 

With the intent of providing direction and/or flexibility to states in satisfying RFP 

requirements, we proposed a number of provisions to address issues relevant to 

 

22 Similar interpretations were made for the 1997 ozone NAAQS in the Phase 2 Ozone 

Implementation Rule, (70 FR 71615, November 29, 2005) and were upheld in NRDC v. 

EPA, 571 F.3d 1245 (D.C. Cir. 2009).
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 29 of 223

implementing RFP under the 2008 ozone NAAQS: (1) allowing states the option of 

selecting either the EPA’s recommended baseline year or an alternate baseline year, if 

justifiable and appropriate; (2) restricting emission reduction measures that can be used to 

fulfill the RFP requirements; (3) fulfilling ROP/RFP requirements with emission 

reductions from sources located outside the nonattainment area; (4) removing RFP 

creditability determination requirements for certain pre-1990 control measures that 

currently achieve de minimis reductions; (5) requiring 15 percent VOC reductions from 

the nonattainment area emissions inventory baseline during a 6-year period after 

designation; (6) providing that areas that had previously met the 15 percent requirement 

for the 1-hour or 1997 ozone NAAQS would be subject to the RFP requirement of 

section 172(c)(2) (if classified as Moderate) or 182(c)(2)(B) (if classified as Serious or

above) and consistent with those provisions could substitute NOx for VOC; and (7) 

satisfying ROP/RFP requirements when a 2008 NAAQS nonattainment area is comprised 

of portions that have an EPA-approved RFP plan for a previous NAAQS. Through this 

rulemaking, the EPA is finalizing actions that address the aforementioned issues. 

2. What baseline year may states use for the emission inventory for the RFP 

requirement?

a. Summary of Proposal

The baseline year inventory for RFP is used as the starting point from which 

creditable reductions are determined to meet RFP requirements. For the 2008 ozone 

NAAQS, the EPA proposed that states should use as the baseline year for RFP the 

calendar year for the most recently available triennial emission inventory at the time 

ROP/RFP plans are developed. As discussed in section III.C.3 of the proposal, ROP plans 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 30 of 223

for areas designated nonattainment in 2012 would be due in 2015, and we proposed the 

baseline year would be 2011 for these areas. We explained that this approach was 

analogous to the approach provided for RFP in the CAA. 78 FR 34178, at 34190 (June 6, 

2013). The CAA required a 1990 baseline for the 15 percent ROP requirement which 

lined up 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 attainment date of 2018. 

However, we also proposed that states have the option of selecting an appropriate 

and justifiable alternate year as a baseline year for RFP. In the proposal, we proposed that 

if states choose a pre-2011 baseline year, 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 1

year prior to the start of the attainment year for the area. In this situation, the EPA 

proposed that the area is responsible for an additional 3 percent emissions reduction each 

year after the initial 6-year period has concluded up to the beginning of the attainment 

year.

The EPA also proposed that for a multi-state nonattainment area, all states 

associated with the nonattainment area must consult and agree on the same year to use as 

the baseline year for RFP. 

b. Final Action and Rationale

For the 2008 ozone NAAQS, the EPA is providing that states should use as the 

baseline year for RFP, the calendar year for the most recently available triennial emission 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 31 of 223

inventory at the time ROP/RFP plans are developed, which in the case of areas 

designated nonattainment in 2012 translates to 2011. We finalized this same 

interpretation for purposes of implementing the 1997 ozone NAAQS. 40 CFR 51.910(d). 

We are also allowing an alternate year to be used. In determining the appropriate 

alternate years, the EPA recognizes that some states may have initiated certain control 

strategies between the year the standard was finalized (2008) and the most recently 

available triennial emission inventory year (2011), and that it would be appropriate to 

recognize these investments in implementing early reductions to achieve improved air 

quality. We also believe that allowing alternate baseline years prior to 2008 (e.g., 1990 

and 2007) would not be appropriate because we believe that it is necessary for RFP credit 

for attainment planning to be tied as directly as possible to promulgation of the 2008 

ozone NAAQS. Emission reduction measures adopted into the SIP prior to promulgation 

of the 2008 NAAQS are certainly helpful for improving air quality, and consequently

may lower the nonattainment classification of an area and the baseline inventory.

However, they are not readily tied to attainment planning for the specific standard and 

associated nonattainment designation that did not yet exist when the measures were 

adopted, and therefore are not appropriate to be credited for fulfilling nonattainment area 

RFP requirements for the 2008 ozone NAAQS. We also recognize that since we 

designated most areas on April 30, 2012, with an effective date 60 days after publication 

in the Federal Register, that 2012 (the designation year) is an appropriate alternative 

baseline year consistent with the subpart 2 structure. With these considerations, the EPA 

is finalizing that states may use an alternate year (i.e., other than 2011) between the years 

of 2008 to 2012 that the state justifies as appropriate. We are also finalizing as proposed 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 32 of 223

that states selecting a pre-2011 alternate baseline year must achieve 3 percent emission 

reductions 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 

that has an attainment date of July 20, , 2018, the 15 percent reductions cover the period 

from January 1, 2010, to December 31, 2015. The state would need to generate an 

additional 3 percent emissions reduction per year for the area for the years 2016 and 

2017.

We are also finalizing that for a multi-state nonattainment area, all states 

associated with the nonattainment area must consult and agree on the same year to use as 

the baseline year for RFP.

c. Comments and Responses

Comment: We received mixed comments regarding the appropriate baseline year 

for RFP. Some commenters believed that 2011 would be the most suitable year to use as 

a baseline year for ROP/RFP plans and others urged the EPA to allow states the option of 

justifying an alternative baseline year, including 2012, 2008, 2007 and 1990. One 

commenter argued that the CAA does not provide flexibility in allowing a choice of 

baseline year for RFP and that the EPA must set the baseline year as 2012. 

Response: While 2011 may be the most suitable year for many areas, we believe it 

is appropriate to provide some flexibility to choose an alternate year that falls between 

the year the NAAQS was established (2008) and the year of designation (2012 for the 

initial area designations). The EPA disagrees with the comment suggesting that the CAA 

does not provide the flexibility to allow states to choose the appropriate baseline year and 

that the EPA must set the baseline year as 2012. While the CAA does identify a specific 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 33 of 223

year to use as the baseline for purposes of the 1-hour NAAQS that was in place when the 

CAA Amendments of 1990 were enacted, we believe use of that year (1990) as the 

baseline would produce absurd results if used for a revised NAAQS that is being 

implemented more than 20 years later. Thus, the EPA has discretion in determining how 

to interpret this provision of the statute for purposes of implementing the 2008 ozone 

NAAQS. Nothing in the statute explicitly or implicitly suggests that all areas must use 

the same baseline year. The purpose of the RFP requirement is to ensure areas achieve 

percentage reductions in emissions that will help an area attain the NAAQS and to not 

delay emission reductions until close to the attainment date. Thus, we believe a baseline 

year that is reasonably close to the designation date and within the implementation 

timeframe of the revised NAAQS will ensure that the goal of the RFP provisions is met. 

We note also, that regardless of the baseline year selected, the final regulations provide 

that areas must continue to achieve annual percentage reductions up to the attainment 

year. This will further ensure that the purpose of the RFP provisions is fulfilled. We do 

not believe it is reasonable to select as a baseline year for RFP purposes a year that 

predates both the revisions to the NAAQS in 2008 and nonattainment designations. 

Comment: One commenter noted that the EPA’s proposal would require areas 

selecting a pre-2011 baseline, to achieve 3 percent emission reduction each year after the 

initial 6-year period has concluded up to the beginning of the attainment year. The 

commenter urged the EPA to apply the same requirement to Moderate areas selecting 

2011 as a baseline year and require an additional 3 percent emissions reduction for the 

final year before the attainment deadline. Comments varied on our proposal for areas to 

achieve 3 percent emission reductions when selecting a pre-2011 baseline year. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 34 of 223

Commenters generally supported the alternate baseline year proposal, however, opposing 

commenters stated the proposed 3 percent reduction requirement seemed to penalize 

states selecting a pre-2011 baseline year. 

Response: The first commenter correctly identifies that the EPA’s selection of the 

2011 baseline year creates a gap period of up to 12 months between the end of the 6 year 

ROP period and the latest attainment date for Moderate areas. The final rule specifies that 

RFP for this 1-year gap period is whatever additional emissions reductions are needed to 

achieve the goal of attainment. We believe that requiring Moderate areas using 2011 as a 

base year to obtain an additional 3 percent per year during the 2018 attainment year

where doing so is not necessary to attainment would be more than Congress intended to 

require through the RFP requirements under Part D of Subchapter 1 of the CAA 

Amendments of 1990. However, because a pre-2011 baseline would be voluntarily

selected by a state and would create a larger gap period before the attainment date than a 

2011 baseline (as much as 2 to 4 years), we believe the language “whatever additional 

emissions reductions are needed for attainment” is not specific enough to ensure annual 

incremental progress through the latest attainment date. Therefore, we are finalizing as 

proposed an additional 3 percent per year as a reasonable RFP reduction requirement for 

a state that chooses to take advantage of the regulatory flexibility this regulation offers by 

selecting a pre-2011 baseline. CAA section 171(1) defines reasonable further progress 

under Subpart D to include such annual reductions as “may reasonable be required by the 

Administrator for the purpose of ensuring attainment of the applicable national ambient 

air quality standard by the applicable date.” Consistent with that, if a state chooses to use

an earlier baseline year, its total RFP emission reduction obligation should be to ensure 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 35 of 223

that additional reductions averaging 3 percent per year for each year beyond the first 6 

years until the year before the attainment year are provided for in the RFP plan. However, 

the EPA continues to believe the 2011 NEI reporting year is the preferred baseline year 

for RFP planning purposes. 

Comment: Comments were mixed in relation to the proposal that states associated 

with multi-state nonattainment areas must consult and agree on the same alternate year to 

use as the baseline year for RFP. Commenters generally agreed with our proposal, 

however, several commenters indicated that RFP demonstrations are state specific and do 

not necessarily rely on a regional inventory. 

Response: The EPA believes that the CAA requires that RFP be demonstrated for 

a nonattainment area as a whole. Thus, in order to effectively analyze RFP reductions and 

ensure that the entire nonattainment area achieves the RFP requirements, it is critical that

the same baseline be used for all portions of the area. We note that section 182(j), 

requires that states in a multi-state nonattainment area take all reasonable steps to 

coordinate their plan. 

3. Can emission reductions from sources located outside the nonattainment area 

boundary apply toward ROP and RFP?

a. Summary of Proposal

The EPA proposed that for the 2008 ozone NAAQS states may not take credit for 

VOC or NOx reductions occurring outside the nonattainment area for purposes of meeting 

the 15 percent ROP requirement and 3 percent RFP requirements of sections 172(c)(2), 

182(b)(1) and (c)(2)(B). In the preamble to the proposal, the EPA noted that it would be 

sound policy to allow areas to use reductions coming from outside the area to meet 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 36 of 223

ROP/RFP requirements, but concluded that in light of the reasoning used in Natural 

Resources Defense Council (NRDC) v. EPA, 571 F.3d 1245 (D.C. 2009), and the 

language of the CAA, there is no legal basis for states to credit emissions reductions from 

sources outside the nonattainment area for satisfying ROP/RFP requirements. In the 

proposed rule, we also stated that if the EPA received comment providing a clear legal 

justification for allowing areas to take credit in their RFP plan for reductions outside the 

nonattainment area, we would consider adopting that approach in the final rule. 

b. Final Action and Rationale

The EPA is finalizing the interpretation that states may not take credit for VOC or 

NOx reductions occurring from sources outside the nonattainment area for purposes of 

meeting the 15 percent ROP and 3 percent RFP requirements of sections 172(c)(2), 

182(b)(1) and (c)(2)(B). This approach means that ROP 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 RFP requirement for Serious and above 

ozone nonattainment areas in section 182(c)(2)(B), or for meeting the RFP requirement 

of section 172(c)(2) for Moderate areas that met the 15 percent requirement for a 

previous NAAQS, can come only from emission reductions from sources located within 

the nonattainment area. 

The ROP/RFP requirements in CAA 182(b)(1)(A)(i) and 182(c)(2)(B) require that 

nonattainment SIPs provide for emission reductions from “baseline emissions.” CAA 

section 182(b)(1)(B) defines baseline emissions as “the total amount of actual VOC or 

NOx emissions from all anthropogenic sources in the area.” (emphasis added) The 

ROP/RFP language in 182(b)(1)(B) and 182(c)(2)(B) is almost identical to the language 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 37 of 223

in the CAA’s RACT provision that the D.C. Circuit Court has interpreted as requiring 

emission reductions to come from within the nonattainment area and not “from sources 

outside the nonattainment area.” NRDC v. EPA, 571 F.3d 1245, 1256 (D.C. Cir. 2009). 

Accordingly, for reasons explained more fully in the proposal, 78 FR 34178, at 34191 

(June 6, 2013), the EPA has concluded that there is no legal basis allowing states to credit 

reductions achieved at sources outside the nonattainment area toward meeting ROP/RFP 

requirements. 

c. Comments and Responses

Comment: Several commenters suggested that the EPA allow credit toward 

meeting ROP/RFP for emission reductions from an area larger than the nonattainment 

area but related to or affecting it, such as the same airshed or an air quality control region 

or a “transport couple area.” These comments emphasized the close connection between 

air quality within the nonattainment area and emissions from outside that area and argued 

that controlling emissions from an area outside a nonattainment area may be a very

effective way to improve air quality within the nonattainment area. They argued that 

statutory references to “the area” do not necessarily refer only to the “nonattainment 

area.” A commenter suggested that CAA section 107(c) provides the EPA the authority to 

allow outside-the-area reduction credits for satisfying RFP requirements. Other 

commenters note that CAA 182(b)(1)(B), viewed in isolation, does not directly refer to 

sources in the nonattainment area, but rather to “sources in the area,” and that NRDC v. 

EPA addresses sources in the nonattainment area only for purposes of meeting RACT 

nonattainment SIP requirements under CAA 172(c)(1). Other commenters took the 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 38 of 223

opposite view, arguing that the EPA had no legal basis for allowing states to use out of 

area reductions to meet RFP requirements. 

Response: As explained more fully in the Response to Comments document in the 

docket, to some extent, the comments in support of allowing out-of-area credits were 

either policy arguments or suggestions about how best to implement a program allowing 

such credits. The EPA agrees that some of these are good policy arguments, but does not 

see a legal basis to allow this approach. While some commenters did provide legal 

arguments, upon examination the EPA does not believe they overcome the restrictions in 

the combined language of CAA section 182(b)(1)(B) with sections 182(b)(1)(A)(i) and 

182(c)(2)(B), and the reasoning in NRDC v. EPA concerning reductions within the 

nonattainment area. (See the Response to Comments document, located in the docket, for 

detailed responses to all of the arguments presented and explaining why EPA believes the 

statutory provisions taken as a whole clearly support the interpretation that these RFP 

reductions must occur within the nonattainment area).

4. Restrictions on Emission Reduction Measures that can Fulfill the ROP/RFP 

Requirement 

a. Summary of Proposal

The EPA proposed that, except as specifically provided in section 182(b)(1)(D) of 

the CAA, all SIP-approved or federally promulgated emissions reductions that occur after 

the baseline emissions inventory year are creditable for purposes of the ROP/RFP 

requirements, provided that the reductions meet the standard requirements for 

creditability. That is, to receive SIP credit, the reductions must be enforceable, 

quantifiable, permanent and surplus. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 39 of 223

b. Final Action and Rationale

We are finalizing, as proposed, that all SIP-approved or federally promulgated 

emissions reductions that occur after the baseline emissions inventory year from sources 

located in the nonattainment area are creditable for purposes of the ROP/RFP 

requirements, provided the reductions meet the standard requirements for creditability

and are not prohibited by section 182(b)(1)(D) of the CAA. 

For the reasons provided in the preamble to the proposed rule, 78 FR 34178, at 

34187 (June 6, 2013), the EPA believes it is appropriate to credit emissions reductions 

that actually occur during the relevant ROP/RFP period and after the baseline year. We 

promulgated a regulatory provision adopting this same interpretation for purposes of 

implementing the 1997 ozone NAAQS. 40 CFR 51.910(a)(2). No significant comments 

were received.

5. How should states account for non-creditable reductions when determining 

compliance with the ROP/RFP emission reduction requirements? 

a. Summary of Proposal

Section 182(b)(1)(D) specifies four categories of control measures that are not 

creditable toward the 15 percent ROP 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 Reid vapor pressure (RVP) promulgated by 

November 15, 1990; (iii) measures to correct previous RACT requirements; and (iv) 

measures required to correct I/M programs. As noted in the proposal, 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 credits for the 2008 ozone NAAQS. Citing 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 40 of 223

an assessment that at this point in history the ongoing emissions reductions from pre1990 control measures in the first category are de minimis the EPA proposed that states 

would no longer need to perform the complicated calculations for these control measures 

to ensure that they are not credited toward the 15 percent ROP requirements under 

section 182(b)(1)(D). (See 78 FR 34178 at 34189)

b. Final Action and Rationale

Consistent with the proposal, the EPA is finalizing the approach that eliminates

any obligation for states to continue to perform emissions reduction calculations for the 

pre-1990 control measures listed under section 182(b)(1)(D)(i). 

The CAA section 182(b)(1)(D)(i) provides that motor vehicle emission reductions 

resulting from measures promulgated “by January 1, 1990,” (which can only come from 

pre-1990 vehicles), are “not creditable.” The EPA is aware that making the calculations 

necessary to ensure a state does not take credit for these measures would be “a very

resource intensive process requiring multiple modeling runs and extensive staff time,” as 

we stated in the proposal for this rulemaking23. Furthermore, the EPA recognizes that 

emissions from pre-1990 vehicles are a very small and diminishing part of the total 

emissions inventory for any RFP-related year associated with implementation of the 2008 

ozone NAAQS (which under the final implementation rules could start, at earliest, in 

2008). This final action will relieve states of the burden of doing the calculations “based 

on the de minimis nature” of the potential credits.24

c. Comments and Responses

 

23 See 78 FR 34178, at 34190 (June 6, 2013)

24 Ibid
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 41 of 223

Comment: A majority of commenters supported removing the calculations 

requirement. However, one commenter argued that the EPA cannot remove the 

calculation requirement because the provision in 182(b)(1)(D) that certain emission 

reductions are “not creditable” toward RFP reductions “is the sort of extraordinarily rigid 

statutory provision that does not allow for de minimis exceptions.” The commenter 

further asserts that the EPA has not demonstrated that the non-creditable reductions will 

always be de minimis because the EPA failed to review the impact of this exception on 

any specific nonattainment areas, relying instead on national modeling from which the 

EPA has claimed that local results may vary.

Response: The EPA thanks the commenters that support this approach. The EPA 

disagrees, however, with the commenter who argued that the EPA cannot relieve states of 

this burden based on the de minimis impact of the measures. 

CAA section 182(b)(1)(C) established a general rule allowing credit toward RFP 

requirements for emission reductions under a SIP that would occur within the 6 years 

following November 1990. Section 182(b)(1)(D) established four narrow exceptions to 

that general rule, three of which are currently entirely moot because they have already 

occurred and are not ongoing reductions for future RFP purposes. The comment concerns 

the motor vehicle emission reduction measures imposed on pre-1990 motor vehicles. The 

EPA has concluded that these reductions are ever diminishing as each year the motor 

vehicle fleet continues to replace older vehicles with new vehicles. The EPA estimates 

that by 2017 the control measures that apply to the pre-1990 portion of the nationwide 

vehicle fleet would account for only between 0.2 and 0.6 percent of total on-road VOC or 

NOx emissions, or between about 0.1 and 0.3 percent of total VOC or NOx emissions 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 42 of 223

inventories. Because calculating those emissions reductions would be very resource 

intensive, the EPA proposed not to require states to calculate them based on the de 

minimis nature of the reductions. Courts recognize that agencies generally have discretion 

to overlook circumstances that in context can fairly be considered de minimis such as 

requirements whose literal application would mandate pointless expenditures “when the 

burdens of regulation yield a gain of trivial or no value.”

25 The EPA does not believe that 

the creditability exemption in 182(b)(1)(D)(i) is so “extraordinarily rigid” as to preclude a 

de minimis exception.

The comment also claims that the EPA has not demonstrated that these 

circumstances are de minimis. Without disputing the EPA’s conclusions as to either the 

share of the emissions inventory or the resource burdens of the calculations, the comment 

nevertheless claims that “local results may vary,” and the EPA must assess reductions in 

“specific nonattainment areas.” The comment does not identify any area where, or any

evidence that, the impact of the credits anywhere would be more than de minimis.

Moreover, the EPA implicitly accounted for local variations when it concluded in the 

proposal that reductions associated with pre-1990 vehicles “everywhere” will be “a very

small fraction of the total on-road VOC emissions inventory by 2017.” 

6. 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 ROP requirement 

for VOC in section 182(b)(1) of the CAA? 

a. Summary of Proposal

 

25 See Alabama Power Co. v. Costle, 636 F.2d 323, 360 (D.C. Cir. 1979)
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 43 of 223

We proposed that newly designated 2008 nonattainment areas,26 namely 2008 

ozone nonattainment areas for which a state has never adopted and implemented a SIP 

providing for the section 182(b) 15 percent VOC emission reductions, will be subject to 

the 15 percent ROP requirement in section 182(b)(1).

We also proposed that for any 2008 ozone nonattainment area, a state could meet 

the 15 percent ROP requirement in whole or in part with NOx reductions in lieu of VOC 

reductions if that state could demonstrate that the area had in fact achieved a 15 percent 

reduction in VOC emissions within 6 years from a 1990 baseline. 

We also proposed that if we did not finalize the proposal to allow any area to 

substitute NOx reductions for VOC reductions where a state can demonstrate that the area 

achieved a 15 percent reduction in VOC emissions from a 1990 baseline, then we would

allow such substitution only for new 2008 nonattainment areas located in the OTR that 

would be subject to the 15 percent ROP requirement for the first time. 

b. Final Action and Rationale

We are finalizing that the ROP plan for a 2008 nonattainment area that has not 

previously adopted and implemented a SIP providing for a 15 percent reduction in VOC 

emissions consistent with section 182(b)(1) must provide for a 15 percent reduction in 

VOC emissions from the area’s baseline emissions in the 6 years following the baseline 

emissions inventory year. This is consistent with the CAA section 182(b)(1) requirement 

and the prior approach for the 1997 ozone NAAQS. 40 CFR 51.910(a)(1)(i). The EPA is 

 

26 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.’’
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 44 of 223

not finalizing either of the additional approaches that would have allowed areas to meet 

the 15 percent ROP requirement in whole or in part with NOx reductions in lieu of VOC 

reductions. After reviewing all comments submitted the EPA does not believe that it has 

the authority under the CAA to allow NOx substitution for VOC emissions reductions for 

the 15 percent ROP requirement in any area that has not previously met the 15 percent 

reduction requirement, including an area in the OTR. 

c. Comments and Responses

Comment: Several commenters raised objections to the EPA’s proposal that 

would allow only areas in the OTR to meet the RFP requirements by allowing NOx

substitutions. The commenters argued that it would be better to allow all areas to take 

advantage of this alternative. 

Response: Although attainment areas in the OTR were not required to adopt 15 

percent RFP plans under section 184 of the CAA, we discussed certain VOC reduction 

measures in the proposal. We expected that the VOC reductions from those measures 

would account for a significant portion of the 15 percent requirement for areas designated 

nonattainment. We reasoned that since attainment areas in the OTR are required to adopt 

and implement many of the same measures applied in nonattainment areas such areas 

should be treated as having met the 15 percent VOC reduction requirement if they can 

demonstrate that they did, in fact, achieve a 15 percent reduction in VOC emissions

during the relevant time period, 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. The 

EPA has reconsidered its proposal and now believes it does not have authority under the 

CAA to allow NOx substitution for VOC emissions reductions for the 15 percent ROP in 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 45 of 223

any area, including an area located in the OTR, unless the area has previously submitted, 

adopted and implemented a SIP providing for a 15 percent VOC reduction in emissions 

from the area’s baseline emissions. These emissions reductions would have to have been 

produced in the 6 years following the baseline emissions inventory year consistent with 

the requirement in section 182(b)(1) and the prior approach for the 1997 ozone NAAQS. 

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

Comment: One commenter supported the proposed alternative that would allow 

areas to substitute NOx for VOC, in part or in whole, in the 15 percent ROP plans 

because the scientific understanding of the relative roles of VOC and NOx control has 

improved. However, numerous commenters stated their understanding that new 

nonattainment areas become subject to CAA section 182(b)(1) and are therefore subject 

to the 15 percent VOC-only ROP emission reduction requirement which does not provide 

for any NOx substitution.

Response: The EPA agrees that the current understanding of the role of NOx

reductions in reducing ozone would suggest that, in some areas, it would be relatively 

more efficient to focus attainment planning efforts on achieving reductions in NOx rather 

than VOC emissions. However, for new nonattainment areas, CAA section 182(b)(1) 

expressly requires the 15 percent ROP plans to reduce emissions of VOC. It does not 

provide discretion to meet these requirements by reducing emissions of other pollutants. 

Where Congress intended to allow such a substitution, it specifically provided so, such as 

in section 182(c)(2)(C) which allows NOx to be substituted for VOC in the 3 percent 

annual RFP plans for Serious and above areas. Absent a showing of absurd results which 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 46 of 223

the record for this action does not support, the EPA does not believe it has discretion to 

allow NOx substitution in this case.

7. What are the ROP/RFP plan requirements for 2008 ozone nonattainment areas that 

consist entirely of one or more areas that fulfilled the 15 percent ROP plan requirement 

for VOC for a former ozone NAAQS? 

a. Summary of Proposal

We proposed that any 2008 nonattainment area 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 ROP plan requirement for VOC in 

section 182(b)(1) of the CAA would not need to submit such an ROP SIP. 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.27 Consistent with our approach for the

1997 ozone NAAQS, we proposed to interpret the CAA’s RFP provisions to mean that a 

2008 nonattainment area that had already achieved a 15 percent reduction in VOC 

emissions per an approved 182(b)(1) ROP SIP, would instead be subject to the RFP 

requirement of section 172(c)(2) (which the EPA has interpreted to represent 15 percent 

emissions reductions over the first 6-year period) if classified as Moderate, or the 3 

percent per year requirement of section 182(c)(2)(B), if classified as Serious or above, 

 

27 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.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 47 of 223

and under those requirements could substitute NOx emission reductions for VOC 

emission reductions. 

b. Final Action and Rationale

We are finalizing as proposed, such that 2008 nonattainment areas that have 

previously met the CAA requirement for a 15 percent ROP VOC reduction plan for the 

entire area are not required to fulfill that requirement again. This is consistent with the 

approach we used for the 1997 NAAQS, and the D.C. Circuit Court’s decision in NRDC 

v. EPA.28 In that case, concerning the EPA’s same interpretation for implementing the 

1997 ozone NAAQS, the Court held that section 182(b)(1) is ambiguous under these 

circumstances and that it was reasonable for the EPA to interpret it not to require areas 

that had already met the 15 percent VOC emission reduction requirement to obtain 

another 15 percent reduction in VOC emissions. Instead, for purposes of the 1997 ozone 

NAAQS and for purposes of the 2008 ozone NAAQS, the EPA interprets the RFP 

requirement of section 172(c)(2) to require an area classified as Moderate to achieve an 

average 3 percent annual reduction in VOC and/or NOx emissions for the first 6 years 

following the baseline year, and the RFP requirement in section 182(c)(2)(B) to require 

the same thing for areas classified as Serious or higher. Under these circumstances, RFP 

requirements may be satisfied with reductions in either NOx or VOC emissions. As 

explained in the proposal, we believe there are two policy reasons for interpreting this 

ambiguous provision in this manner. First, both our understanding of the effects of 

reductions of VOC and NOx on ambient ozone levels and the technical tools to help 

predict what combinations of reductions of ozone precursors will be most effective for

 

28 See NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 2009).
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 48 of 223

ozone reduction in any area have improved. Since the purpose of the RFP provisions in 

sections 172 and 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, as 

explained more fully in the proposal, the mix of emissions across the country and in 

specific areas is very different than it was in 1990 because of various measures and 

developments that have substantially reduced the anthropogenic VOC emissions 

inventory such that additional area-specific VOC reductions will be increasingly difficult 

to achieve. 

c. Comments and Responses

Comment: Numerous commenters agreed with the EPA’s proposal that 2008 

nonattainment areas that have already met the CAA requirement for a 15 percent VOC 

reduction plan are not required to fulfill that VOC requirement again. Two commenters 

generally supported the EPA’s approach but argued for reducing the showing a state must 

make or giving states more latitude in determining how to treat new nonattainment areas.

However, one commenter stated that although the Court in NRDC v. EPA, 571 F.3d 1245 

(D.C. Cir. 2009), held that the EPA could permissibly read the statute as requiring SIPs to 

provide for the 15 percent VOC reduction only once, the Court did not address the 

question of whether mere EPA approval of a prior 15 percent ROP SIP would satisfy the 

15 percent requirement for a subsequent NAAQS, or whether the area would have to 

show it actually achieved the 15 percent VOC reduction within the 6 years required by 

the statute. The commenter stated that to be creditable, the 15 percent reduction must 

have actually occurred within 6 years of November 15, 1990, due to implementation of 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 49 of 223

measures required under the SIP, rules promulgated by the EPA, or title V permits. 

Accordingly, the commenter believed the EPA cannot treat previously approved ROP 

plans as satisfying the 15 percent ROP requirement unless the state also shows that the 

required VOC reductions were actually achieved as required by section 182(b)(1)(C). 

Response: The EPA thanks the commenters for their supporting comments. The 

EPA disagrees, however, that states must demonstrate that they achieved the 15 percent 

reduction within 6 years of the baseline for a previous NAAQS. We have consistently

maintained that if an area has already met the requirement to submit for approval and to 

implement a plan for reducing VOC emissions by 15 percent within 6 years of the 

baseline year for either the 1-hour or the 1997 ozone NAAQS, then the area should not be 

required to meet that requirement a second time for the 2008 ozone NAAQS but instead 

will be subject to the other applicable RFP provisions of the CAA.

8. 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 that fulfilled the 15 percent ROP plan requirement for VOC for that previous 

NAAQS and portions that have never been subject to or have never submitted the 15 

percent ROP plan for VOC for a previous NAAQS? 

a. Summary of Proposal

For those areas that include all or part of a nonattainment area under a former 

ozone NAAQS that fulfilled the 15 percent ROP 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, we proposed that a state may choose between two approaches for 

addressing the 15 percent ROP requirement. First, the state could choose to treat the 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 50 of 223

entire area as an area that never met the 15 percent requirement and submit a new 15

percent plan for the entire area. Second, the state could choose to treat the 2008 

nonattainment area as divided into two portions: the non-ROP plan portion and the 

former ROP plan portion. For the non-ROP plan portion of the 2008 nonattainment area, 

the plan would establish a separate 15 percent ROP VOC reduction requirement under 

section 182(b)(1) of subpart 2. However, VOC emissions reductions to meet the 15 

percent requirement could come from across the entire 2008 nonattainment area, 

provided that the former ROP plan portion of the area also has a VOC reduction target as 

part of its ROP plan for the 2008 ozone NAAQS. If the 2008 ozone NAAQS ROP plan 

for the former ROP plan nonattainment area relies solely on NOx reductions, then the 

portion of the nonattainment area never before subject to nonattainment requirements is 

still responsible for the full 15 percent VOC reductions. We also stated in the proposal 

that for the former RFP plan portion of the 2008 nonattainment area, the RFP 

requirements in section 172(c)(2) will apply to Moderate nonattainment areas and the 

RFP requirements of section 182(c)(2) apply to areas classified as Serious and above. 

These areas may both substitute NOx for the VOC reductions in the manner specified in 

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

b. Final Action and Rationale

We are finalizing the two proposed approaches that a state may choose between 

for addressing the 15 percent ROP requirement where a portion of the area submitted and 

implemented a 15 percent ROP plan for a previous ozone NAAQS and a portion did not. 

First, the state may choose to treat the entire area as an area that never met the 15 percent 

ROP VOC reduction requirement in section 182(b)(1). Second, the state may choose to 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 51 of 223

treat the 2008 nonattainment area as divided into two portions: the non-ROP plan portion 

and the former ROP plan portion. For the non-ROP 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, divergent from our proposal 

that would have allowed creditable VOC reductions to come from across the entire 2008 

nonattainment area, the final rule requires that VOC emission reductions to satisfy the 

section 182(b)(1) 15 percent requirement must come entirely from within the non-ROP 

plan area.

For the former ROP plan portion of the 2008 nonattainment area, the RFP 

requirements in section 172(c)(2) apply if the 2008 nonattainment area is classified as 

Moderate. CAA section 182(c)(2)(B) RFP requirements apply if the 2008 ozone NAAQS 

nonattainment area is classified as Serious or higher.

The EPA believes that nonattainment areas with a previously approved 15 percent 

plan developed to satisfy previous ozone NAAQS standards are not required to adopt a 

second 15 percent VOC ROP plan under section 182(b)(1) for purposes of the 2008 

ozone NAAQS. The EPA believes that if a portion of the nonattainment area was not 

subject to an approved 15 percent plan for previous ozone standards, then section 

182(b)(1) applies to that portion of the 2008 nonattainment area. We are offering two 

options, as described previously, and states can select the appropriate option to meet the 

RFP requirements. However, due to significant comments received regarding the source 

of reductions to satisfy the 15 percent requirement for the non-ROP portion of the area, 

we are requiring that VOC emissions reductions to meet the 15 percent requirement must 

come from within the boundaries of the non-ROP plan portion rather than from across the 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 52 of 223

entire nonattainment area as we proposed. Additionally, the ROP plan for the 2008 ozone 

NAAQS for the new non-ROP plan portion must provide for 15 percent VOC reductions. 

c. Comments and Responses

Comment: One commenter opposed both of the EPA’s proposed options,

believing that they are not permissible under the CAA because a prior ROP plan for just 

part of a 2008 nonattainment area cannot be deemed to satisfy the ROP plan 

requirement—that “area” is different from the area encompassed by the prior ROP plan. 

The commenter argued that the prior ROP plan could not have provided the 15 percent 

baseline emissions reduction in an “area” that was not even defined at the time of the 

prior ROP plan. The commenter also argued that the statute does not allow the EPA to 

divide up “the area” into multiple sub-areas with separate ROP plans or requirements. 

The commenter also argued that it would be illegal and arbitrary to allow a sub-area to 

claim credit for emission reductions from outside the sub-area without having to also add 

emissions from outside the sub-area to its baseline. The commenter stated that unless the 

EPA is proposing to require that the non-former ROP sub-area assure a net 15 percent cut 

from new baseline emissions for the entire 2008 nonattainment area, it cannot allow the 

sub-area to claim credit for reductions outside the sub-area. The commenter believed that 

for sub-areas within the nonattainment area, each with its own 15 percent reduction 

obligation, that the required VOC emission reductions must come from inside each subarea respectively. 

Response: The EPA recognizes that a prior ROP plan would not necessarily 

encompass the newly designated portion of a 2008 nonattainment area and that the newly 

designated portion may not have previously been covered by an approved 15 percent 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 53 of 223

ROP VOC plan. In light of this comment, the EPA has reconsidered the proposal and 

now believes that if a portion or portions of a nonattainment area for the 2008 ozone 

NAAQS was/were not subject to an approved 15 percent ROP VOC-only plan for either 

the 1-hour or the 1997 ozone NAAQS, then section 182(b)(1) requirements apply to that 

new portion of the 2008 NAAQS nonattainment area. 

The EPA disagrees with the commenter’s assertion that the statute does not allow 

areas to be divided into former ROP plan areas and new non-ROP areas. Consistent with 

the reasoning in the Phase 2 Rule, upheld in NRDC v. EPA, we believe that an area, or a 

sub-area that has never met the 15 percent requirement must do so, but that an area (or 

sub-area) that has previously met the requirement need not be subjected to it for a second 

time. Based on similar reasoning, we have reconsidered our proposal that would have 

allowed emission reductions from across the entire nonattainment area to be creditable 

toward achieving the 15 percent ROP VOC reductions for the non-ROP portion(s) of the 

area. We now believe it is important to recognize that VOC emissions reductions to meet 

the 15 percent ROP VOC reduction requirement must come from within the boundaries 

of the non-ROP plan portion. Accordingly, the ROP plan for the 2008 ozone NAAQS for 

the new non-ROP plan portion must demonstrate achievement of 15 percent VOC 

reductions from that sub-area’s baseline.

9. Alternative Approaches to Achieving RFP 

a. Summary of Proposal

We requested comment on two alternative approaches to achieve RFP: (1) an air 

quality-based approach that would measure RFP in terms of ambient air quality

improvements tied to an area’s percent emission reduction; and, (2) an approach that 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 54 of 223

would adjust (or “weight”) the amount of RFP credit given for reductions of individual 

species (or similar groups) of VOC based on their ozone forming potential (i.e., 

photochemical reactivity). 

For each of these alternative approaches, the EPA sought comment on the 

usefulness and practicality of the approach, and specifically on whether there is an 

adequate legal basis under the CAA to approve SIPs that would employ it. 

b. Final Action and Rationale

The EPA is not taking final action on these alternative approaches. The EPA may

further consider such alternatives in the future. The EPA believes that more time is 

needed to better understand the scientific and legal issues involved in allowing and 

implementing these approaches. In the meantime, use of these approaches may be 

considered on a case-by-case basis. If states wish to pursue either of these approaches, we 

encourage them to work closely on developing such an approach with their respective 

EPA Regional Offices. If a state submits an alternative approach to achieving RFP, then 

the EPA will address the submittal in a separate notice and comment rulemaking action.

c. Comments and Responses

Comment: Some commenters, while supporting the approaches, believed that the 

EPA must provide more information on how both the VOC-weighted approach and the 

air quality-based approach would be implemented, a stronger legal justification for 

allowing these alternatives, and more scientific support for practical implementation. 

There were commenters that supported the air quality-based approach. One commenter 

stated that the air quality alternative would better reflect the air quality progress being 

made in areas adjacent to an upwind nonattainment area, whereby the downwind areas 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 55 of 223

must rely on large upwind emission reductions to attain the ozone standard. The 

commenter also argued that states should have the opportunity to demonstrate that such 

an approach is equivalent to or better than an emission reduction target and believes it

would qualify as an equivalent planning procedure under section 172(c)(8) and should be 

included in the final rule. The commenter indicated a similar approach was included in 

the implementation rules that govern SIP development for the PM2.5 NAAQS (40 CFR 

51.1009(g) and (h)). Other commenters pointed out that the VOC-weighted reactivity 

method has already been adopted in other national, state and local ozone regulations,

such as the current national aerosol coatings rule and a highly-reactive VOC emissions 

cap-and-trade program and these may serve as legal and administrative precedents for 

other reactivity-based standards. Commenters also cautioned the EPA that such 

approaches should not be mandated, and must be left to the state's discretion.

There were commenters that did not support these alternative approaches, stating 

that the CAA clearly requires a percentage reduction from baseline emissions for 

purposes of RFP. 

Response: The EPA appreciates the comments it has received on these alternative 

approaches. As noted above, the EPA believes more time is needed to better understand 

the scientific and legal issues involved before finalizing any alternative approaches to 

achieving RFP. We encourage states to work closely with their respective EPA Regional 

Offices, who may consider these approaches on a case-by-case basis. Any such actions 

would be addressed through separate notice and comment rulemaking including analysis 

of appropriate legal and technical justifications.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 56 of 223

D. How do RACT and RACM requirements apply for 2008 ozone NAAQS nonattainment 

areas? 

1. Reasonably Available Control Technology

a. Summary of the Proposal

The EPA indicated in the proposal that RACT SIPs must contain adopted RACT 

regulations, certifications where appropriate that existing provisions are RACT,

29 and/or 

negative declarations that there are no sources in the nonattainment area covered by a 

specific CTG source category. The EPA also indicated that states must provide notice and 

opportunity for public comment on their RACT submission even where the state 

determines it is appropriate 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.

The EPA proposed a number of items regarding RACT submittals. First, the EPA 

proposed that states should use current EPA guidance [including existing control 

techniques guidelines (CTGs) and alternative control techniques (ACTs)] and any other 

 

29 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). Availability and feasibility may differ across sources in the same category (June 

9, 1985, memorandum from John Calcagni, Chief, Economic Analysis Branch, to G. T. 

Helms, “Criteria for Determining RACT in Region IV.”)
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 57 of 223

information available in making RACT determinations.30 The EPA recognized in the 

proposal that existing CTGs and ACTs for many source categories have not been revised 

in a number of years. However, in many cases, more recent technical information is 

available in other forms. The EPA proposed that 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. Additionally, the EPA 

noted that states should consider information submitted as part of the public comment 

period associated with the RACT SIP. 

The EPA proposed that in some cases, states may conclude that sources already

addressed by RACT determinations for the 1-hour and/or 1997 ozone NAAQS may not 

need to implement additional controls to meet the 2008 ozone NAAQS RACT 

requirement.

The EPA proposed to follow the EPA’s existing policy with respect to “area 

wide average emission rates.” This policy recognizes that states may demonstrate as part 

of their NOx RACT SIP submittal that the weighted average NOx emission rate from all 

sources in the nonattainment area subject to RACT meets NOx RACT requirements. 

The EPA proposed that as part of their RACT submissions, states have the 

option of conducting a technical analysis for a nonattainment area considering the 

emissions controls required by a regional cap-and-trade program, and demonstrating that 

 

30 The EPA’s CTGs and ACTs are located at 

http://www.epa.gov/air/ozonepollution/SIPToolkit/ctgs.html.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 58 of 223

compliance by certain sources participating in the cap-and-trade program results in 

actual emission reductions in the particular nonattainment area that are equal to or 

greater than the emission reductions that would result if RACT were applied to an 

individual source or source category within the nonattainment area. The EPA provided 

legal reasoning for this approach. 

The EPA proposed to follow its current policy that for VOC sources subject to 

MACT standards, states would be allowed 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. 

The EPA also noted 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 solicited comment on modifying existing guidance to provide additional 

flexibility in implementing the section 182(b)(2) RACT requirements. In particular, the 

EPA solicited comments on whether it would be appropriate for states, as part of their 

RACT determinations regarding what is “reasonable,” to consider the effect (or lack 

thereof) of VOC emission reductions on reductions in ozone concentrations when 

assessing economic feasibility. The EPA solicited comments on this approach because in 

some nonattainment areas, additional reductions of anthropogenic VOC emissions have 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 59 of 223

been scientifically demonstrated to have a limited impact on reducing ozone 

concentrations. 

The EPA took comments on the following: 1) 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; 2) the specific 

circumstances and limitations to which an air quality benefit factor would apply; 3) 

specific examples of where modeling has demonstrated that anthropogenic VOC 

reductions have "negligible effect, ” (commenters were also asked to provide a defensible 

threshold for defining “ineffective,” and define a test for concluding that the effect of 

additional VOC reductions would be "negligible."); 4) input regarding whether this 

flexibility should be provided on an individual source basis, or also on a source category

basis; 5) that any approaches suggested by commenters should also address how public 

health and welfare will be impacted; and 6) an explanation as to the specific legal basis

for supporting the suggested approach. 

Finally, the EPA proposed a specific deadline by which RACT measures are to be 

implemented for the 2008 ozone NAAQS, which is consistent with the timeline specified 

in CAA Section 182(b)(2). For the 2008 ozone NAAQS, we proposed that areas must 

implement RACT measures as expeditiously as practicable, but no later than January 1 of 

the 5th 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 

areas classified Moderate or above and all areas of the OTC would be required to be 

implemented by January 1, 2017. This would allow a comparable amount of time for 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 60 of 223

sources to meet RACT requirements as originally anticipated under the 1990 CAA 

Amendments, consistent with the Moderate area attainment date of July 20, 2018. 

b. Final Action and Rationale

The EPA is finalizing the approach where states should refer to the existing CTGs 

and ACTs for purposes of meeting their RACT requirements, as well as all relevant 

information (including recent technical information as well as information received 

during the public comment period) that is available at the time that they are developing 

their RACT SIPs for the 2008 ozone NAAQS. We believe that there is sufficient 

information available to states to inform their RACT determinations.

The EPA is finalizing the approach allowing in some cases for states to conclude 

that sources already addressed by RACT determinations for the 1-hour and/or 1997 ozone 

NAAQS do not need to implement additional controls to meet the 2008 ozone NAAQS 

RACT requirement. We believe that, in some cases, a new RACT determination under 

the 2008 standard would result in the same or similar control technology as the initial 

RACT determination under the 1-hour or 1997 standard because the fundamental control 

techniques, as described in the CTGs and ACTs, are still applicable. 31 In cases where 

controls were applied due to the 1-hour or 1997 NAAQS ozone RACT requirement, we 

expect that any incremental emissions reductions from application of a second round of 

RACT controls may be small and, therefore, the cost for advancing that small additional 

increment of reduction may not be reasonable. In contrast, a RACT analysis for 

 

31 See existing guidance in RACT Questions and Answers 2006 (May 18, 2006, Note from William Harnett 

to Regional Air Division Directors), Questions 17 and 18, regarding RACT certifications.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 61 of 223

uncontrolled sources would be much more likely to find that new RACT-level controls 

are economically and technically feasible.

The EPA is finalizing the proposed approach with respect to “area wide average 

emission rates.” This approach is consistent with the EPA’s existing policy. 

The EPA is finalizing the proposed approach, where states have the option of 

conducting a technical analysis for a nonattainment area considering the emissions 

controls required by a regional cap-and-trade program, and demonstrating that 

compliance by certain sources participating in the cap-and-trade program results in 

actual emission reductions in the particular nonattainment area that are equal to or 

greater than the emission reductions that would result if RACT were applied to an 

individual source or source category within the nonattainment area. This approach is 

consistent with the Court’s reasoning in NRDC v. EPA regarding the NOx SIP Call. 

Additionally, we note that in August 2013, the Court granted EPA’s request for 

voluntary vacatur of the CAIR-RACT presumption for the 1997 ozone NAAQS. The 

approach we are finalizing is not inconsistent with the vacatur decision.

The EPA is finalizing the proposed approach for VOC sources subject to MACT 

standards, such that states would be allowed to streamline their RACT analysis by 

including an assessment of the MACT controls and how they relate to VOC RACT

considerations. This approach is consistent with the EPA’s current policy.

The EPA is finalizing the proposed approach to provide states with the discretion 

to require beyond-RACT reductions from any source, and that states have an obligation 

to demonstrate attainment as expeditiously as practicable. We believe it may be necessary
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 62 of 223

in some cases for states to achieve “beyond RACT” reductions in order to demonstrate 

attainment as expeditiously as practicable.

The EPA is not modifying existing guidance for meeting the 182(b)(2) RACT 

requirements for the 2008 ozone NAAQS through this action. There is scientific 

information available that indicates that in some locations ozone formation is NOxlimited, and changes in anthropogenic VOC emissions will have little effect on ozone 

concentrations. However, the EPA is not prepared at this time to establish a specific 

definition of “negligible effect,” and believes that legal support for modifying the 

existing RACT guidance needs to be further explored. States therefore will continue to

conduct RACT determinations as they historically have. Additionally, we do not 

anticipate that any current NOx-limited nonattainment areas will immediately need to 

develop substantive new VOC RACT SIP submissions. Therefore, we do not expect that 

retaining the current RACT guidance will have any near term impact on states or VOC 

sources in current NOx-limited nonattainment areas. The EPA notes that we may consider 

modifying the existing guidance in the future. The EPA received potentially useful 

information from commenters regarding the definition of “negligible effect,” which we 

will consider in the future as we further assess whether to modify the existing RACT 

guidance.

The EPA is finalizing the proposed approach that areas must implement RACT 

measures as expeditiously as practicable, but no later than January 1 of the 5th year after 

the effective date of a nonattainment designation. For the nonattainment designations that 

were effective July 20, 2012, RACT measures (for areas where they are required) must be 

implemented by January 1, 2017. This allows a comparable amount of time for sources to 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 63 of 223

meet RACT requirements as originally anticipated under the 1990 CAA Amendments, 

and ensures that RACT measures are required to be in place no later than the last ozone 

season prior to the Moderate area attainment date of July 20, 2018.

c. Comments and Responses 

Comment: Several commenters supported the proposed approach that in some 

cases, states may conclude that sources already addressed by RACT determinations for 

the 1-hour and/or 1997 ozone NAAQS may not need to implement additional controls to 

meet the 2008 ozone NAAQS RACT requirement. Several other commenters generally

did not support this conclusion. One commenter requested clarification regarding 

situations where a state may conclude that existing RACT controls meet RACT for the 

2008 ozone NAAQS. 

Response: The EPA generally agrees with the supporting comments. The EPA 

disagrees with the comments opposing the proposed approach. In areas previously subject 

to the RACT requirement under the 1-hour and/or 1997 ozone NAAQS, states have 

previously addressed the RACT requirement with respect to these NAAQS. We believe 

that, in some cases, a new RACT determination under the 2008 standard would result in 

the same or similar control technology as the initial RACT determination under the 1-

hour or 1997 standard because the fundamental control techniques, as described in the 

CTGs and ACTs, are still applicable. 

We appreciate the commenter’s request for more information regarding the 

specific situations where this approach may be reasonable. In cases where controls were 

applied due to the 1-hour or 1997 ozone NAAQS RACT requirement, the incremental 

emissions reductions from application of updated RACT controls may be small and, 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 64 of 223

therefore, the cost for advancing that small additional increment of reduction may not be 

reasonable. In contrast, a RACT analysis for uncontrolled or partially controlled sources 

would be more likely to find that updated RACT-level controls under the 2008 ozone 

NAAQS are economically and technically feasible.

In portions of 2008 nonattainment areas where control technologies for major 

sources or source categories were previously reviewed and controls applied to meet the 

RACT requirement under the 1-hour or the 1997 ozone NAAQS, states should review 

and, if appropriate, accept the initial RACT analysis as meeting the RACT requirements 

for the 2008 ozone NAAQS. Absent data or public comments indicating that the previous 

RACT determination is no longer appropriate, the state need not adopt additional SIP 

controls to meet the new RACT requirement for these sources. In such cases, the state’s 

SIP revision submitted after notice and comment should contain a certification, with 

appropriate supporting information (including consideration of new data), indicating that 

these sources are already subject to SIP-approved requirements that still meet the RACT 

obligation. There are cases where the initial RACT analysis under the 1-hour standard or 

the 1997 standard for a specific source or source category concluded that no additional 

controls were necessary. In such cases, a new RACT determination is needed to consider 

whether more cost effective control measures have become available for sources that 

were not previously regulated. A re-analysis may determine that controls are now 

economically and technically feasible and are necessary to meet the RACT requirement. 

Please refer to the Response to Comments document for additional detail on this topic. 

Comment: A commenter expressed the concern that a nonattainment area-wide 

weighted NOx averaging demonstration would exempt EGUs used primarily on high 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 65 of 223

electricity demand days from NOx control. The commenter also expressed that the 

exemption of HEDD EGUs from NOx control does not reduce NOx emissions when and 

where such reductions are necessary to attain the ozone NAAQS. Another commenter 

asserted that the EPA’s definition of RACT plainly requires each individual source to 

apply control technology to achieve the lowest emission limitation that each particular 

source is capable of meeting considering technology and economic feasibility. The 

commenter argued that substitution of area-wide averaging for source-specific RACT 

does not meet the language of section 182(b)(2) of the Act, which requires SIPs for 

Moderate and above areas to require implementation of RACT “with respect to ... [a]ll

VOC sources in the area covered by any CTG issued before November 15, 1990,” and 

“[a]ll other major stationary sources of VOCs that are located in the area.” 42 U.S.C. § 

7511a(b)(2). The commenter argued that the EPA is supplanting these statutory directives 

with an area-wide averaging program that allows some sources to avoid installing RACT 

controls. 

Response: The EPA’s existing policy recognizes that states can meet NOx RACT 

requirements by submitting as part of their NOx RACT SIP submittal a demonstration 

that the weighted average NOx emission rate from sources in the nonattainment area 

subject to RACT achieves RACT-level reductions. We note, however, that this policy

does not include an exemption for HEDD EGUs from NOx control. 

Additionally, the EPA disagrees with the comment that “area-wide averaging is 

not a legally permissible method for complying with” RACT and that RACT requires 

reductions from “each and every source” in an area. The EPA believes that the statute, as 

interpreted by the court in NRDC v. EPA, provides a state with the option of 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 66 of 223

demonstrating that its program achieves RACT level reductions by showing emission

reductions greater than or equal to reductions that would be achieved through a sourcespecific application of RACT in the nonattainment area. NRDC v. EPA interprets the 

CAA as requiring that each nonattainment area must achieve “RACT-level reductions,” 

which is to say the reductions that would be achieved “if RACT-level controls were 

installed in the area.” 571 F.3d at 1258. In sum, nothing in the CAA or in NRDC v. EPA

requires that “each and every” source in the area employ RACT or achieve RACT-level 

reductions. Consistent with previous guidance, the EPA continues to believe that RACT 

can be met on average by a group of sources within a nonattainment area rather than at 

each individual source. Therefore, states can show that SIP provisions for these sources 

meet the ozone RACT requirement using the averaging approach.

Comment: Several commenters expressed general support for the proposed policy

that would allow states to demonstrate that compliance with a regional trading program 

by affected sources within a nonattainment area will satisfy RACT requirements for those 

sources. Several commenters additionally expressed that it may be appropriate for states 

to rely on a cap-and-trade program that is limited to a nonattainment area for purposes of 

meeting RACT for sources located in the nonattainment area. 

Other commenters did not support the proposed approach. A few of these 

commenters expressed concerns that by providing states with an option to rely on trading 

programs, the EPA is allowing for sources to turn off their controls in upwind states. 

Commenters additionally suggested that RACT should apply on an individual basis to 

every affected stationary source in a nonattainment area. Commenters implied that the 

EPA should specifically require controls to be operational at all times at these sources.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 67 of 223

Response: The EPA appreciates, and generally agrees with, the supporting 

comments pertaining to the proposed policy allowing states to rely on a regional cap-andtrade program to comply with RACT if they provide an appropriate technical 

demonstration. The EPA also agrees that states may rely on a cap-and-trade program that 

is limited to a nonattainment area for purposes of meeting RACT for sources located in 

the nonattainment area. The EPA disagrees, however, with those commenters that say

that states should not have the option to demonstrate that compliance with a regional 

trading program by sources in a nonattainment area achieves RACT-level reductions 

within the nonattainment area. In NRDC v. EPA, the Court noted that a determination that 

RACT was satisfied by compliance with a regional trading program might be permissible 

for an area if accompanied by a technical analysis demonstrating that the program in fact 

“results in greater emissions reductions in a nonattainment area than would be achieved if 

RACT-level controls were installed in that area.”32 In other words, the Court rejected the 

notion that a regional trading program intended to eliminate interstate transport of 

emissions consistent with section 110(a)(2)(D)(i) could automatically constitute the 

RACT-level of control required by section 172(c)(1), but held open the possibility that an 

analysis could be conducted to determine whether such a program would result in the 

same, or higher level of emissions reductions in individual nonattainment areas. 

The EPA additionally disagrees with any implication by the commenters that the 

proposal should address whether controls are required to be operational at all times at 

sources in the nonattainment area. The EPA’s NOx RACT guidance (Nitrogen Oxides 

Supplement to the General Preamble, 57 FR 55625; November 25, 1992) includes a 

 

32 571 F.3d at 1258.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 68 of 223

policy where states may develop RACT programs that are based on ”area wide average 

emission rates.” Additional guidance on area-wide RACT provisions is provided by the

EPA’s January 2001 economic incentive program guidance titled, “Improving Air 

Quality with Economic Incentive Programs.” Thus, the EPA’s existing policy recognizes 

that states may demonstrate as part of their NOx RACT SIP submittal that the weighted 

average NOx emission rate from a group of sources in the nonattainment area subject to 

RACT meets NOx RACT requirements. 

Comment: The EPA received several supporting and opposing comments 

regarding whether the EPA should modify the RACT guidance to allow for states to 

consider the ozone air quality benefits of reductions in VOC emissions for purposes of 

RACT determinations. Supporting comments provided examples where photochemical 

modeling appears to show that in some areas VOC reductions have a limited effect on 

reductions in ozone concentrations. These commenters also provided information that 

may be useful in evaluating the potential definition of “negligible effect.” Several 

commenters also provided potential legal justifications for modifying the RACT guidance

in this respect. 

Response: The EPA recognizes that modification of the existing guidance on 

determining RACT could add flexibility that would be beneficial to the efficiency of 

ozone controls in some states. In addition, it appears that there is available science 

suggesting that ozone formation in some areas is NOx limited, such that changes in 

anthropogenic VOC emissions will have little effect on ozone concentrations. However, 

the EPA does not believe that the legal arguments provided by the commenters are 

sufficient to address potential statutory restrictions. The main legal argument presented 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 69 of 223

by commenters in support of flexibility is that the EPA has “discretion” to determine 

what constitutes “reasonably” available control technology. However, the EPA may not 

have sufficient discretion to support this modification of the existing RACT guidance. 

Section 182(b)(2) provides that SIPs must “require the implementation of reasonably 

available control technology” with respect to “VOC sources.” It does not clearly 

authorize consideration of whether technology that is “reasonably available” is also 

reasonably effective with respect to improving air quality or reducing ozone formation, 

and it does not specify criteria for discerning a level of air quality improvement below 

which available technology does not need to be implemented.

Comment: Some opposing comments raised equity concerns with modifying the 

RACT guidance, while other comments raised legal concerns. Several commenters stated 

the EPA has issued NOx waivers in the past under section 182(f) and the proposed 

approach would appear to establish a VOC waiver scheme, which the commenters do not 

support and is not expressly provided by the statute. Several commenters stated that the 

CAA requires RACT on all major sources of VOC in nonattainment areas and the 

commenters do not believe that the EPA has the authority to eliminate this requirement. 

One commenter also stated that not only has Congress made clear that section 182(b)(2)’s 

mandates for VOC RACT are not limited by any sort of air quality benefit test, but the 

plain meaning of “economic feasibility” does not have anything to do with air quality

benefits, citing several cases.

Response: Given these concerns about whether the CAA authorizes such an 

approach, and as is discussed above, the EPA is not at this time revising our long-
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 70 of 223

standing RACT determination guidance. However, EPA may continue to explore this 

option and potential legal support for it in the future.

Comment: The EPA received one supporting comment regarding the proposed 

approach that for VOC sources subject to MACT standards, states would be allowed to 

streamline their RACT analysis by including a discussion of the MACT controls and 

considerations relevant to VOC RACT. The EPA received one additional comment 

suggesting that, before requiring states to apply NOx RACT to all combustion sources, 

the EPA should study certain MACT rules and specifically recommend the SIP credit for 

federal MACT measures in SIP planning.

Response: The EPA thanks the commenter for their support. Regarding the issue 

of whether to specifically recommend the SIP credit for federal MACT measures in SIP 

planning, the EPA is not planning at this time to develop specific recommendations for 

SIP credit for Federal MACT measures. Additionally, the commenter seems to imply that 

the EPA should not require compliance with RACT until such a study is completed. The 

EPA disagrees with the commenter. Regardless of whether or not the EPA conducts such 

a study, the RACT requirements remain requirements that must be met under the CAA, 

whether through reliance on MACT or otherwise.

Comment: One commenter expressed concern that the EPA’s proposed 

requirement to have RACT in place by January 1, 2017, may not provide enough time for 

implementation. The commenter noted that if the EPA needs to develop additional CTGs 

for the current ozone NAAQS, states may not have ample time to develop regulations 

that provide sufficient time for sources to implement RACT for sources covered by 

additional CTGs.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 71 of 223

Response: The EPA disagrees with the commenter that a requirement for RACT 

to be in place by January 1, 2017 for areas designated nonattainment effective July 20, 

2012 (and all areas of the OTR) does not allow enough time for implementation. The 

EPA believes that the January 1, 2017, date allows a sufficient amount of time for states 

to make RACT determinations and for sources to meet RACT requirements on the timetable 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. 

Given the comment received, we wish to provide further clarification regarding 

the RACT implementation deadline. The EPA notes that the requirement to develop a 

RACT SIP applies only to nonattainment areas that are classified as Moderate or above 

(i.e., Serious, Severe, or Extreme). Therefore, for such areas that were designated 

effective July 20, 2012, RACT SIPs are due within 2 years of the effective date of 

designation, by July 20, 2014. Sources subject to RACT in those areas would then need 

to implement RACT by January 1, 2017.33 If an area is reclassified from Marginal to 

Moderate at some later date, then that area would become subject to a new RACT 

requirement, and the EPA would set new SIP submission and RACT compliance dates on 

a reasonable schedule that the Administrator will establish in the applicable notice and 

comment rulemaking reclassifying the area. For areas newly redesignated to 

nonattainment, the RACT SIP is due 2 years from the effective date of designation, and 

 

33We note that the RACT compliance date does not change relative to the RACT SIP 

submission. This compliance date is fixed, such that if a state submits a RACT SIP past 

the deadline, then sources would still have to comply with the RACT requirements by

January 1, 2017.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 72 of 223

the implementation deadline is January 1st of the 5th year after the effective date of 

designation.

Additionally, the January 1, 2017 RACT implementation deadline, would not 

automatically apply to sources covered by future CTGs. If a new CTG is developed, all 

current Moderate or above areas would be required to revise their SIPs for the sources 

covered by the CTG within the period set forth by the EPA in issuing the CTG document 

(see Section 182(b)(2) of the CAA), which would occur through notice and comment 

rulemaking. This will give sources lead time to comply with the new requirement. 

Comment: With regard to the EPA’s proposed requirement to have RACT in 

place by January 1, 2017, one commenter asserted that it was not Congress’s intention to 

require another round of RACT revisions in the short period of time between ozone 

NAAQS revisions. The commenter claims the short period of time would not allow a 

facility to recoup the investment in the original pollution control before the requirement 

to reconsider if the next round RACT determinations requires newer controls. The 

commenter also believes that it would be burdensome for states to adopt new RACT SIPs 

and resubmit them for EPA approval.

Response: The EPA disagrees with the commenter that Congress did not realize 

the implication that the 5-year NAAQS review cycle would potentially require new 

RACT determinations each time a NAAQS is revised. The EPA has offered flexibilities

in applying the RACT requirements for areas that have previously met requirements for 

the 1-hour or the 1997 8-hour ozone NAAQS.

2. Reasonably Available Control Measures (RACM) 

a. Summary of the Proposal
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 73 of 223

The EPA proposed to continue to apply to the 2008 ozone NAAQS, existing 

RACM 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.34,35,36 The EPA also proposed that 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. 

b. Final Action and Rationale

The EPA is finalizing the proposed approach of continuing to apply existing 

RACM guidance to the 2008 ozone NAAQS, such that we interpret 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. Additionally the EPA is 

 

34 “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).

35 “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. 

http://www.epa.gov/ttn/oarpg/t1/memoranda/revracm.pdf.

36 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.” 

http://www.epa.gov/ttn/caaa/t1/memoranda/121400_racmmemfin.pdf
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 74 of 223

finalizing the interpretation of the CAA requirements that states should consider all 

available measures, including those being implemented in other areas, and that 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 has been upheld by several courts. See, e.g., Sierra Club v. EPA, et al., 

294 F.3d 155 (D.C. Circuit, 2002).

Significant tracts of land under federal management may also be included in 

nonattainment area boundaries. The role of fire in these areas should be assessed and 

emissions budgets developed in concert with those federal land management agencies. 

Where appropriate, states may consider developing plans for addressing wildland fuels in 

collaboration with land managers and owners. Information is available from the 

Department of Interior (DOI) and USDA Forest Service on smoke management programs 

and basic smoke management practices and may be considered as potential mitigation 

measures to lessen the impacts of wildfires.37

Wildfire emissions are a component of background ozone38 and can significantly

contribute to periodic high ozone levels.39 Besides their effect on air quality, wildfires 

pose a direct threat to public safety – a threat that can be mitigated through management 

 

37 USDA Forest Service and Natural Resources Conservation Service, Basic Smoke 

Management Practices Tech Note, October 2011, 

http://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb1046311.pdf.

38 Jaffe, DA; Wigder, NL. (2012). Ozone production from wildfires: A critical review. 

Atmos Environ 51: 1-10.

http://dx.doi.org/10.1016/j.atmosenv.2011.11.063

39 Emery, C; Jung, J; Downey, N; Johnson, J; Jimenez, M; Yarwood, G; Morris, R. 

(2012). Regional and global modeling estimates of policy relevant background 

ozone over the United States. Atmos Environ 47:206-217.

http://dx.doi.org/10.1016/j.atmosenv.2011.11.012
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 75 of 223

of wildland vegetation. Attempts to suppress wildfires have resulted in unintended 

consequences, including increased risks to both humans and ecosystems.40 The use of 

wildland prescribed fire can influence the occurrence of catastrophic wildfires which may

help manage the contribution of wildfires to background ozone levels and periodic peak 

ozone events. Additionally prescribed fires can have benefits to those plant and animal 

species that depend upon natural fires for propagation, habitat restoration, and 

reproduction, as well as myriad ecosystem functions (e.g., carbon sequestration). The 

EPA understands the importance of prescribed fire which mimics a natural process 

necessary to manage and maintain fire-adapted ecosystems and climate change 

adaptation, while reducing risk of uncontrolled emissions from catastrophic wildfires, and 

is committed to working with federal land managers, tribes, and states to effectively 

manage prescribed wildland fire use to reduce the impact of wildfire related emissions on 

ozone.

If wildfire impacts are significant, contributing to exceedances of the standard, 

states should consider RACM for this source. Fires play an important ecological role 

across the globe, benefiting those plant and animal species that depend upon natural fires 

for propagation, habitat restoration, and reproduction. Fires are one tool that can be used 

to reduce fuel load, unnatural understory, and tree density, helping to reduce the risk of 

catastrophic wildfires. The use of prescribed fire can influence the occurrence of 

catastrophic wildfires which may reduce the probability of fire-induced ozone impacts 

 

40 Indeed, “Fire policy that focuses on [wildfire] suppression only, delays the inevitable, 

promising more dangerous and destructive future...fires.” Stephens, SL; Agee, 

JK; Fule, PZ; North, MP; Romme, WH; Swetnam, TW. (2013). Managing Forests 

and Fire in Changing Climates. Science 342:41-42.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 76 of 223

and subsequent public health effects. RACM for wildfire may include addressing the 

wildland fuels through fuels management and including the use of prescribed fire in 

systems that are ecologically fire dependent. Where appropriate, states may consider 

developing plans for addressing wildland fuels in collaboration with land managers and 

owners. RACM for prescribed fires should also be considered. Information is available 

from DOI and the USDA Forest Service on smoke management programs and basic 

smoke management practices and may be considered when determining RACM for 

prescribed fires. RACM must be determined for each area on a case-by-case basis.

c. Comments and Responses

Comment: One commenter suggested amending RACM guidance to follow the 

same common-sense approach proposed for RACT; i.e., if studies show that reducing 

anthropogenic VOC emissions in an area has little effect on ground-level ozone 

concentrations, RACM analyses should not be required for that pollutant. 

Response: We note that existing EPA guidance already provides some assistance 

to states with identifying the type of measures that might be considered for RACM (See

General Preamble, 57 FR 13549, April 16, 1992). If a state demonstrates that 

implementation of VOC emission reduction measures will not contribute to an area’s 

reasonable further progress or to attainment, then additional control of VOC emissions 

does not need to be further considered for RACM purposes. Thus, the EPA concludes 

that it need not amend RACM guidance to address this comment.

E. Does the 2008 ozone NAAQS result in any new vehicle I/M programs? 

Based on current designations and classifications for the 2008 ozone NAAQS, no 

new vehicle I/M programs are currently required. In the proposal for this rulemaking, the 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 77 of 223

EPA provided information on potential ways a state could design and implement an I/M 

program, either because it was required to implement a program due to a future 

reclassification for the 2008 ozone NAAQS, as a result of a nonattainment designation 

and classification under a future standard, or because an area decided to implement an 

I/M program even though it was not otherwise required. That discussion is not repeated 

here; therefore, please refer to the proposal (78 FR 34194-34196). Although the EPA is 

finalizing its proposal to revise the I/M SIP due date to align it with other SIP due dates

(see section III.A of this preamble), no other changes are being made to the EPA's 

existing regulations and guidance on vehicle I/M programs.

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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 78 of 223

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. Parties involved in implementing 

transportation conformity 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). For further information on transportation conformity

rulemakings, policy guidance and outreach materials, see the EPA’s website at 

http://www.epa.gov/otaq/stateresources/transconf/index.htm.

2. When would transportation conformity apply to areas designated nonattainment for 

the 2008 ozone NAAQS?

Transportation conformity for the 2008 ozone NAAQS applied 1 year after the 

effective date of nonattainment designations for the NAAQS. CAA section 176(c)(6) and 

40 CFR 93.102(d) provide a 1-year grace period from the effective date of an initial 

designation of nonattainment before transportation conformity applies in the area for a 

particular pollutant and standard. For areas designated nonattainment effective July 20, 

2012, the 1-year grace period ended on July 20, 2013. For any area subsequently

redesignated to nonattainment (from unclassifiable or attainment), the 1-year grace period 

runs from the effective date of the redesignation. The grace period requirements differ 

depending on whether the nonattainment area is a metropolitan area or an isolated rural 

area.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 79 of 223

In metropolitan areas, which are defined as urbanized areas that have a population 

greater than 50,000 and a designated MPO responsible for transportation planning per 23 

U.S.C. 134, within 1 year after the effective date of the nonattainment designation, the 

area’s MPO and the DOT must make a conformity determination with regard to the 

area’s transportation plan and TIP for the 2008 ozone NAAQS under the transportation 

conformity regulations ( 40 CFR 51.390 and part 93, subpart A). The conformity

requirements for “donut areas,”

41 including the application of the 1-year conformity grace 

period, are generally the same as those for metropolitan areas. 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 areas are areas that do not contain or are not part of 

an MPO (40 CFR 93.101). Conformity requirements for isolated rural nonattainment 

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 

 

41 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).
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 80 of 223

the EPA has implemented this conformity grace period for the 1997 ozone NAAQS in 

metropolitan, donut and isolated rural areas (69 FR 40008-40014).42

3. Does transportation conformity apply for the 1997 ozone NAAQS once that NAAQS 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. 

Accordingly, 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 D.C. Circuit ruled that the EPA violated the CAA when it 

attempted to revoke the 1997 ozone NAAQS for transportation conformity purposes only

in the Classifications Rule for the 2008 ozone NAAQS. The attempted revocation would 

have become effective on July 20, 2013, 1 year after the effective date of designations for 

the 2008 ozone NAAQS. (77 FR 30160) The D.C. Circuit Court of Appeals said nothing 

to suggest that the EPA could not revoke the standard for all purposes, as it is doing 

today. See South Coast, (upholding revocation of standard so long as anti-backsliding 

measures are introduced). 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 

 

42 Also, see the EPA’s transportation conformity website for more information, including

EPA’s “Transportation Conformity Guidance for 2008 Ozone NAAQS Nonattainment

Areas” at: http://www.epa.gov/otaq/stateresources/transconf/2008naaqs.htm.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 81 of 223

the 2008 ozone NAAQS until emission budgets are established and found adequate or are 

approved for the 2008 ozone NAAQS. (77 FR 14981-2)

4. What impact will the implementation of the 2008 ozone NAAQS have on a state’s

Transportation Conformity SIP?

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 areas newly designated nonattainment for the 2008 ozone NAAQS. 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 within 12 months of the effective date of the 

nonattainment designation 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.pdf).

G. What requirements for general conformity apply to the 2008 ozone NAAQS?? 

1. Summary of the Proposal

The EPA did not propose to make revisions to the General Conformity

Regulations.43 However, we did recommend that as areas develop their SIPs for the 2008 

 

43 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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 82 of 223

ozone NAAQS, state and local air quality agencies work with federal agencies with major 

facilities that are subject to the General Conformity Regulations to establish an emissions 

budget for those facilities in order to facilitate future conformity determinations.

Significant tracts of land under federal management may also be included in 

nonattainment area boundaries. The role of fire in these areas should be assessed and 

emissions budgets developed in concert with those federal land management agencies. 

Where appropriate, states may consider developing plans for addressing wildland fuels in 

collaboration with land managers and owners. Information is available from DOI and

USDA Forest Service on the ecological role of fire and on smoke management programs 

and basic smoke management practices and may be considered as potential mitigation 

measures to lessen the impacts of wildfires.

44 We also stated in the proposal that for the 

ozone precursors VOC and NOx, the existing de minimis emission levels contained in 40 

CFR 93.153(b)(1) will continue to apply to the 2008 ozone NAAQS. We also stated in 

the proposal that general conformity for the 2008 ozone NAAQS would apply 1 year 

after the effective date of nonattainment designations for that NAAQS because section 

176(c)(6) 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. In such areas we encourage states 

to consider in any baseline inventory used and/or submitted to include emissions 

 

information on the general conformity program is available at 

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

44 USDA Forest Service and Natural Resources Conservation Service, Basic Smoke 

Management Practices Tech Note, October 2011, 

http://www.nrcs.usda.gov/Internet/FSE_DOCUMENTS/stelprdb1046311.pdf.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 83 of 223

expected from projects to general conformity, including emissions from wildland fire that 

may be reasonably expected in the area.

Since we proposed to revoke the 1997 ozone NAAQS at the time the final SIP 

Requirements Rule is published in the Federal Register, we stated in the proposal that 

general conformity requirements under the 1997 ozone NAAQS would end after the 2008 

ozone NAAQS general conformity requirements begin.

2. Final Action and Rationale

The EPA is taking no action to revise General Conformity Regulations. For 

reasons explained in section IV of this rule, we are revoking the 1997 ozone NAAQS 30 

days after publication of this final rule. Accordingly, the general conformity requirements 

for the 1997 ozone NAAQS will end when the NAAQS is revoked, and the general 

conformity requirements for the 2008 ozone NAAQS are applicable 1 year after the 

effective date of nonattainment designations for the 2008 NAAQS.

45 The EPA believes 

the existing General Conformity Regulations (40 CFR part 93) remain appropriate for the 

2008 ozone NAAQS. States with approved general conformity SIPs should not need to 

revise their SIPs unless they need to do so to ensure they are consistent with the April 5, 

2010, revisions to the general conformity regulations or to ensure the existing regulations 

apply in the appropriate newly designated areas. 

H. What are the requirements for contingency measures in the event of failure to meet a 

milestone or to attain?

1. Summary of Proposal

 

45 For areas designated in 2012, the effective date was July 20, 2013.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 84 of 223

The EPA proposed 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 attain or 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 to meet the applicable 

milestone. Per the EPA guidance, contingency measures should represent 1-year’s worth 

of progress, amounting to reductions of 3 percent of the baseline emissions inventory for 

the nonattainment area, which would be achieved while the state is revising its plans for 

the area.46

Regarding the content of the contingency measures, the EPA’s prior guidance 

specifies that some portion of the contingency measures must include VOC reductions.

As explained in the proposal, this previous limitation is no longer necessary in all cases.

In particular, Moderate and above areas that have completed the initial 15 percent VOC 

reduction required by CAA section 182(b)(1)(A)(i), can meet the contingency measures 

requirement 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 would 

be no minimum VOC requirement. Also, the EPA proposed continuing its long-standing 

policy that allows promulgated federal measures to be used as contingency measures as 

 

46 See the April 16, 1992 General Preamble section III.A.3.c (57 FR 13498 at 13511).
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 85 of 223

long as they provide emission reductions in the relevant years in excess of those needed 

for attainment or RFP.47

The EPA also proposed an implementation approach for Extreme nonattainment 

areas whereby plan provisions meeting the requirements of section 182(e)(5) (referred to 

as the “black box”), including the requirements concerning contingency measures, 

therein, may satisfy the section 172(c)(9) and 182(c)(9) contingency measure 

requirements for the area provided the state has already adopted all reasonable candidate 

measures in the applicable SIP to satisfy RACM, RFP, and all other requirements

necessary for attainment in the area.

2. Final Action and Rationale

The EPA is finalizing the proposed requirements that contingency measures must 

be submitted for approval into the SIP as required by the CAA and must provide for the 

implementation of specific measures without any further rulemaking action if the area 

fails to attain or meet any applicable milestone, with limited exceptions for Extreme 

nonattainment areas relying on plan provisions approved under section 182(e)(5), as 

discussed below. Regarding content of the 1-year’s worth of emissions covered by the 

contingency measures, the EPA is finalizing its proposal to allow the 3 percent emissions 

reductions of the contingency measures, to be based entirely on NOx controls if the area 

has completed the initial 15 percent ROP VOC reduction required by CAA section 

182(b)(1)(A)(i) and the state’s analyses have demonstrated that NOx substitution would 

be most effective in bringing the area into attainment. 

 

47 See Louisiana Environmental Action Network (LEAN) v. EPA, 382 F.3d 575 (D.C. 

2004).
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 86 of 223

The EPA will continue to allow the use of federal measures providing ongoing 

reductions into the future to be used meet contingency measure requirements for the 2008 

ozone NAAQS, consistent with the EPA’s longstanding policy. The EPA has previously 

approved the use of federal measures to meet contingency measure requirements in 

actions approving 1-hour and 8-hour ozone SIPs.

With respect to Extreme ozone nonattainment areas, section 182(e)(5) allows the 

agency to exercise discretion in approving Extreme area attainment plans that rely, in 

part, on the future development of new control technologies or improvements of existing 

control technologies, where certain conditions are met. This discretion can be applied 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 timely develop and adopt 

contingency measures to be implemented if the anticipated future technologies do not 

achieve planned reductions. The EPA is finalizing its proposal to allow states to submit, 

for Extreme nonattainment areas, enforceable commitments to develop and adopt 

contingency measures meeting the requirements of 182(e)(5) to satisfy the requirements 

for both attainment contingency measures in sections 172(c)(9) and 182(c)(9). These 

enforceable commitments must obligate the state to submit the required contingency

measures to the EPA no later than three years before any applicable implementation date, 

in accordance with section 182(e)(5).48 We note that this does not, however, relieve states 

 

48 For example, where a state intends to rely on section 182(e)(5) commitments to satisfy

the section 182(c)(9) contingency measure requirement for an RFP milestone in year 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 87 of 223

from obligations to submit contingency plans as required by sections 172(c)(9) and 

182(c)(9) for periods in the first 10 years after designation.

3. Comments and Responses

Comment: Commenters urged the EPA to provide flexibility to states when 

adopting, subject to EPA approval, contingency measures into the SIP that are ready for 

implementation should the area fail to either meet milestones or attain. Commenters 

requested that the EPA allow air quality improvement measurements to be taken into 

consideration for purposes of evaluating the level of emission reductions necessary to 

meet the contingency measure requirements when providing “approximately” 1 year’s 

worth of progress for contingency measures. Commenters indicated that a similar air 

quality improvements approach has been used in approving PM2.5 contingency measures.

Response: The EPA’s long-standing interpretation is that a 3 percent emissions 

reduction from the RFP baseline, rather than a specific ozone concentration 

improvement, is the minimum contingency measure adoption requirement under subpart 

2. The EPA did not propose to alter this guidance. However, we note that if the 

contingency measures are ever triggered for an area, states may take air quality 

considerations into account in determining whether a subset of measures amounting to 

less than 3 percent emissions reduction are all that is necessary to be implemented to cure 

the identified failure.49 The implementation of PM2.5 NAAQS is governed by statutory

and regulatory requirements that are separate from, and not identical to, ozone 

 

2022, the commitments must obligate the state to submit adopted contingency measures 

to the EPA no later than 2019. (i.e., three years before RFP contingency measures for 

2022 would be implemented. 

49 See “Guidance for Growth Factors, Projections, and Control Strategies for the 15 

Percent Rate-of-Progress Plans,” U.S. EPA, March 1993, page 83 (EPA-452/R-93/002).
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 88 of 223

implementation and provide flexibility for states to consider the degree of air quality

improvement that may be needed in developing RFP plans and contingency measures.

Comment: Several commenters supported, and no commenters objected to using 

section 182(e)(5) authority to approve contingency measure plans for Extreme 

nonattainment areas where the attainment plan is based on development of new or 

improved control measures.

Response: We appreciate the supportive comments. We recognize that all areas 

must meet the contingency plan requirements of sections 172(c)(9) and 182(c)(9). We 

agree that CAA section 182(e)(5) provides the agency discretion 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 authority can be 

exercised 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 timely develop and 

adopt contingency measures in the event that anticipated future technologies do not 

achieve planned reductions. 

Comment: One commenter argued that an Extreme nonattainment area seeking to 

rely on the section 182(e)(5) “black box” should be required to demonstrate that it has 

adopted all feasible controls, even if they do not advance attainment by a year and 

regardless of whether they constitute “reasonably available control measures,” and that 

the EPA should “change its interpretation of RACT and RACM, which currently allows 

areas to avoid adopting and implementing feasible measures.”
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 89 of 223

Response: The EPA believes that both its long-standing interpretation of RACM 

and its focus on whether control measures are “reasonably available” provide an 

appropriate framework for determining when to exercise the discretion provided by 

section 182(e)(5). As noted in the proposal, the determination of whether a SIP contains 

all RACM requires an area-specific analysis establishing that there are no additional 

economically and technically feasible control measures (alone or cumulatively) that will 

advance the attainment date by 1 year. This requires close review of any measure that a 

commenter identifies as reasonably available for implementation in the area in light of 

local circumstances, and of measures being implemented in other states. 78 FR 34187, at 

34194 (June 6, 2013). This interpretation of RACM has been upheld in court (e.g., Sierra 

Club v. EPA, 294 F.3d 155, 162-163 (D.C. Cir. 2002)). Thus, the EPA believes that it is 

appropriate to require that an area seeking to rely on the anticipated development of new 

technology demonstrate that its plan includes all control measures that come within this 

definition of “reasonably available.” The EPA does not believe it is necessary for an area 

to demonstrate the use of measures that go beyond that definition in order to meet 

contingency measure requirements.

I. How do the NSR requirements apply for the 2008 ozone NAAQS?

1. Major NSR Requirements for the 2008 Ozone NAAQS

The NSR programs established in parts C and D of title I of the CAA contain 

specific requirements for the preconstruction review and permitting of new or modified 

major stationary sources of air pollutants. In attainment and unclassifiable areas outside 

the OTR, the requirements under part C apply for the prevention of significant 

deterioration (PSD) program. In nonattainment areas and throughout the OTR, the 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 90 of 223

requirements under part D apply for the nonattainment NSR program. 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 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 major

source, to obtain a permit that satisfies PSD requirements, including the application of 

best available control technology (BACT) for “each pollutant subject to regulation under 

[the CAA],” conducting an air quality impact analysis, and complying with requirements 

related to the protection of Class I areas.

As part of the required air quality impact analyses, section 165(a)(3) of the CAA 

provides that 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 statutory

requirement, and the corresponding regulations implementing EPA’s federal PSD 

permitting program at 40 CFR 52.21(k) and establishing minimum requirements for PSD 

programs approved into SIPs at 40 CFR 51.166(k), to include a demonstration for any 

NAAQS that is in effect at the time a final permit decision is issued.50 See, e.g., 73 FR 

 

50 The EPA received comments relating to statements in the proposal about its discretion 

to grandfather permit applications in appropriate circumstances. Since this NAAQS has 

been in effect since 2008, the EPA is not adding a grandfathering provision in this final 

rule and those comments are discussed further in the Response to Comments document.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 91 of 223

28321, 28324, 28340 (May 16, 2008); 78 FR 3253 (Jan. 15, 2013); Memorandum from 

Stephen D. Page, Director, Office of Air Quality Planning & Standards, entitled 

“Applicability of the Federal Prevention of Significant Deterioration Permit 

Requirements to New and Revised National Ambient Air Quality Standards,” to the EPA 

Regional Air Division Directors and Deputies (April 1, 2010).

In the proposal, the EPA indicated that, since the May 27, 2008, effective date of 

the 2008 ozone NAAQS, permit applications for new major stationary sources and major 

modifications have been subject to the PSD program requirements for ozone under two 

sets of circumstances: First, prior to the designation of areas for 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. If, however, an area was 

designated attainment or unclassifiable for the 2008 ozone NAAQS on and after July 20, 

2012, but was designated nonattainment for the 1997 ozone NAAQS, consistent with the 

PSD regulations at 40 CFR 51.166(i)(2) and 52.21(i)(2), the nonattainment designation 

would require application of nonattainment NSR for permits issued to new and modified 

sources locating in that area that trigger major NSR requirements for ozone until the 

revocation of the 1997 ozone NAAQS is effective. In this rulemaking, the EPA is 

revoking the 1997 ozone NAAQS for all purposes. Accordingly, as explained in section 

IV.A of this preamble, as of 30 days after the publication of this rule in the Federal 

Register, the area designations for the 1997 ozone NAAQS will no longer be considered 

current designations; thus, all areas designated attainment for the 2008 ozone NAAQS 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 92 of 223

will be subject to PSD requirements. In the proposal, the EPA explained that this result 

was based on its interpretation of the PSD regulations at 40 CFR 51.166(i)(2) and 

52.21(i)(2), but recognized that those provisions did not expressly say that a 

nonattainment designation for a revoked standard does not trigger the exemption from 

PSD requirements contained in those provisions. 78 FR 34216-17. Accordingly, the EPA 

requested comment on whether amendment of 40 CFR 51.166(i)(2) and 52.21(i)(2) is 

necessary to achieve that outcome and on how such an amendment, if any, should be 

worded. After additional consideration, we believe there is a need for us to amend these 

provisions to further clarify the application of the exemption they contain. Therefore, the 

EPA is amending its PSD regulations at 40 CFR 51.166(i)(2) and 52.21(i)(2) as a logical 

outgrowth of the proposal and the submitted comments to clarify that historical 

designations for a revoked NAAQS should not be considered in determining whether 

PSD requirements apply for that pollutant once the revocation becomes effective in an 

area.

For any area that is designated nonattainment for the 2008 ozone NAAQS, the 

historical designations and classifications resulting from the revoked 1997 ozone 

NAAQS will continue to serve to identify nonattainment NSR anti-backsliding 

requirements (i.e., major source thresholds and emissions offset ratios) that need to be 

taken into account in issuing nonattainment NSR permits to major stationary sources and 

major modifications.51 As indicated previously, the designations and classifications for 

the revoked standard should not be regarded as current designations and classifications 

 

51 In this final rule, the anti-backsliding requirements for nonattainment NSR are codified

in 40 CFR 51.1105(f), and are described in Section IV.B of this preamble. The 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 93 of 223

once the revocation takes effect. For example, in implementing the emissions offset 

requirements for nonattainment NSR, offset ratios based on the classification for the 

revoked standard, to the extent more stringent than the ratios for the 2008 ozone NAAQS 

classification, must be used for anti-backsliding purposes. However, for purposes of 

determining whether a prospective offset can be obtained from a nonattainment area other 

than the one in which a new or modified source would be located, the requirements under 

section 173(c)(1) of the CAA must be satisfied. Section 173(c)(1) requires, in part, that 

the nonattainment area from which the offset is obtained must have “an equal or higher 

nonattainment classification than the area in which the [new or modified] source is 

located....” After the revocation takes effect, the historical classification for the revoked 

NAAQS, to the extent that it is lower than the classification in the nonattainment area 

where a new or modified source would be located, would not preclude obtaining the 

offset from that area, so long as (1) the current classification for the ozone NAAQS for 

that area is equal to or higher than the current classification of the nonattainment area 

where the new or modified source is locating and (2) the other requirements under section 

173(c)(1) of the CAA are satisfied. 

Some states may have already in their SIP a nonattainment NSR program 

consistent with part D of the CAA that can be applied to new nonattainment areas. In 

such situations, permitting authorities should have begun applying the nonattainment 

 

nonattainment NSR regulations at 40 CFR 51.165 have been amended in this final rule to 

add new paragraph (a)(12), which references those anti-backsliding requirements. Also, 

as proposed, a new section VII has been added to Appendix S to set forth the antibacksliding requirements that must be followed when states issue nonattainment NSR 

permits under that Ruling. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 94 of 223

NSR requirements in permitting actions for new and modified major sources that trigger 

major source permitting requirements for ozone in new nonattainment areas starting from 

the effective date of the 2008 ozone designations (July 20, 2012).

For a newly designated (or redesignated) nonattainment area for the 2008 ozone 

NAAQS in a state with a SIP that specifically lists the areas in which nonattainment NSR 

requirements under part D apply, or in a state that 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 EPA approves the state’s amended SIP, which 

must be revised to adequately address the nonattainment NSR requirements for the 2008 

ozone NAAQS contained in this final rule. In the proposal, we explained that during this 

interim period, nonattainment NSR requirements for the 2008 NAAQS are governed by 

the EPA’s Emission Offset Interpretative Ruling codified in Appendix S to 40 CFR part 

51. Among other things, 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. In addition, a new 

section VII of Appendix S has been added as part of this final rule to set forth the antibacksliding requirements that must be addressed in order to issue a nonattainment NSR 

permit under Appendix S. That language for section VII is being finalized with only

minor modifications to what was proposed. Readers should refer to 40 CFR part 51, 

Appendix S for a better understanding of the Appendix S permitting requirements. 

In the proposal, the EPA explained that the time period for the NSR waiver 

provision contained in section VI of Appendix S, enabling permitting authorities in 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 95 of 223

specified circumstances to issue nonattainment NSR permits that do not require LAER or 

emissions offsets as are otherwise required under section IV of appendix S, was limited 

by the court’s ruling in NRDC v. EPA, 571 F.3d 1245 (D.C. Cir. 2009). The court’s ruling 

was the result of a petition filed in response to the EPA’s Phase 2 Rule for the 1997 

ozone NAAQS in which the EPA revised 40 CFR 52.24(k). The revision to paragraph (k) 

eliminated language stating that if a nonattainment area did not have an approved 

nonattainment NSR program within 18 months after designation, Appendix S would no 

longer apply and a construction ban would apply instead. 70 FR 71612 (November 29, 

2005). The effect of the revision 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 for a new NAAQS. 

In NRDC v. EPA (571 F.3d 1245 (D.C. Cir. 2009)), the court vacated “the 

elimination of the 18-month time limit for NSR waivers under Appendix S” on the 

grounds that it violated section 172(e) of the CAA (571 F.3d at 1276). As a result of the 

court’s vacatur of the extension of the 18-month time limit for section VI of Appendix S, 

no section VI waivers may be granted beyond 18 months from the date of designation for 

any NAAQS.

Several commenters requested that the EPA clarify how the court’s decision 

affects the implementation of Appendix S as an interim nonattainment NSR program. 

While most commenters understood that the vacatur applied only to the removal of the 

18-month deadline for the section VI waiver, one commenter seemed to interpret the 

vacatur to apply to appendix S in its entirety.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 96 of 223

To clarify, there is now a distinction between the length of time during which 

waivers may be granted under section VI of Appendix S and the length of time the 

remainder of Appendix S applies as an interim nonattainment NSR program. No section 

VI waivers may be granted beyond 18 months from the date of designation. The 

remainder of Appendix S, however, is not subject to an 18-month time limitation. It will 

remain as the basis for air agencies to issue nonattainment NSR permits in new ozone 

nonattainment areas until the EPA approves a state’s nonattainment NSR program for the 

2008 ozone NAAQS under the SIP for the area. Specifically, section IV of Appendix S 

contains preconstruction requirements for proposed sources and modifications, which 

reflect the requirements contained in part D of the CAA for ozone nonattainment areas. 

The requirements in section IV should be met consistent with the anti-backsliding 

requirements contained in new section VII of Appendix S.

2. Offset Requirements and Policy

To satisfy requirements under section 173 of the Act, new and modified major 

sources in nonattainment areas must secure emissions reductions (i.e., “offsets”) to 

compensate for a proposed emissions increase. Offsets are generated by emissions 

reductions that meet specific creditability criteria set forth by the SIP consistent with 

EPA regulations. See, 40 CFR 51.165(a)(3)(ii)(A)-(J) and part 51 Appendix S section 

IV.C. 52 One commenter suggested that nonattainment NSR major source construction 

and major modification offsets should be available outside the nonattainment area (from 

 

52 See also, the EPA’s “Improving Air Quality with Economic Incentive Programs” 

document at http://www.epa.gov/region07/air/nsr/nsrmemos/eipfin.pdf. For additional 

memoranda and guidance documents, see

http://www.epa.gov/region7/air/nsr/nsrindex.htm.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 97 of 223

attainment areas) due to the possibility that new sources would develop in attainment 

areas in close proximity to the boundary of the ozone nonattainment area with subsequent 

impact on the nonattainment area. Further, the commenter seemed to suggest that 

emissions reductions from these close proximity sources should also be allowed to be 

used as offsets within the adjacent nonattainment area. The commenter’s suggestion fails 

to address the statutory requirements for offsets and, more specifically, does not confront 

the statutory provisions restricting where offsets can be obtained from. In accordance 

with the requirements under section 173(c)(1) of the CAA, emissions offsets must be 

obtained from the same nonattainment area, except that the state may allow a source to 

obtain offsets from another nonattainment area if (1) that area has an equal or higher 

nonattainment classification than the nonattainment area in which the source requiring 

the offsets is located, and (2) emissions from that other area contribute to a violation of 

the NAAQS in the nonattainment area in which the source requiring the offsets is located. 

Accordingly, the EPA does not intend to revise the existing requirements as to where 

emissions offsets may be obtained to allow use of offsets from attainment areas.

3. Facilitating New Source Growth in Nonattainment Areas

a. Offset Banks 

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. Some states have established 

offset banks to help ensure a consistent method for generating and transferring NOx and 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 98 of 223

VOC offsets.53 Offsets in these areas are generated by emissions reductions that meet 

specific creditability criteria set forth by the SIP consistent with EPA regulations. See 

existing 40 CFR 51.165(a)(3)(ii)(A)-(J) and part 51 Appendix S section IV.C.

b. Interprecursor Offset Substitution 

In the proposal, the EPA recognized that states could establish interprecursor54

offset substitution provisions, which would create additional flexibility in meeting offset 

requirements by allowing NOx emissions reductions to satisfy VOC offset requirements 

and vice versa. See 78 FR at 34201. The EPA received no adverse comments on whether 

to allow such interprecursor trading for ozone and no comment suggested that such 

trading is not or should not be allowed for ozone. In fact, all comments addressing the 

EPA’s statements in the proposal concerning interprecursor trades for ozone for 

nonattainment NSR permitting were in support of allowing NOx emissions reductions to 

satisfy VOC offset requirements and vice versa. 

Although there were no adverse comments relating to the EPA’s ability to allow 

interprecursor trading for ozone, the EPA recognizes that the current language of 40 CFR 

51.165(a)(11) and part 51 Appendix S IV.G.5 could be read to limit interprecursor 

trading to PM2.5, and thus to preclude this kind of interprecursor trading for ozone 

precursors (NOx and VOC). However, the EPA has issued previous guidance that clearly 

allows for such interprecursor trading for ozone precursors.55 While the EPA did not 

 

53 See, for example, emission reduction credit banking programs in Ohio (OAC Chapter 

3745-1111) and California (H&SC Section 40709).

54 For purposes of this rulemaking, we are using the terms interprecursor and 

interpollutant interchangeably.

55 “Improving Air Quality with Economic Incentive Programs” document at 

http://www.epa.gov/region07/air/nsr/nsrmemos/eipfin.pdf. In this document, the EPA 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 99 of 223

specifically propose to amend the nonattainment NSR regulations to address 

interprecursor trading for ozone, the proposal indicated the EPA’s intent to continue to 

allow states to establish provisions that allow for such interprecursor trading for ozone 

precursors.

As noted previously, the EPA received no adverse comments on the 

interprecursor aspect of the proposal. Commenters did, however, indicate support for 

ensuring in the final rulemaking that interpollutant trading would continue to be allowed,

and one commenter indicated support for measures similar to what was authorized in the 

final 2008 PM2.5 NAAQS implementation rule, (see 73 FR 28321) which revised the 

regulations and Appendix S to allow for interprecursor trading for PM2.5 precursors.

Accordingly, the EPA is taking action in this final rulemaking to amend the 

regulatory text in both section 51.165 and Appendix S as a logical outgrowth of the 

proposal and the submitted comments to ensure that the offset provisions of both rules are 

consistent with our proposal and our ongoing position to allow such trades for the ozone 

precursors (VOC and NOx). See revised 40 CFR 51.165(a)(11) and part 51 Appendix S 

IV.G.5. These changes in the regulatory text are intended to clarify that interprecursor 

trading continues to be an option for the ozone precursors VOC and NOx, as long as such 

trades are consistent with existing policy and legal requirements; these revisions are not 

intended to change the underlying requirements for such trades. Please refer to the 

 

stated: “[o]zone interprecursor trading can be used to meet NSR offset requirements, 

regardless of whether the NSR offset emission reductions are generated through an EIP.” 

Id. at 244. For additional memoranda and guidance documents, see

http://www.epa.gov/region7/air/nsr/nsrindex.htm.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 100 of 223

Response to Comments document in the docket for this rulemaking for more detailed 

information and responses to comments with respect to interprecursor trading concerns.

c. Economic Development Zones (EDZs)

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." 

Under this section, new or modified major stationary sources that locate in such a zone 

are relieved of the NSR requirement to obtain emission offsets if (1) the relevant SIP 

includes an NSR nonattainment program that has established emission levels for new and 

modified major sources in the zone ("growth allowance"), and (2) the emissions from 

new or modified stationary sources in the zone will not cause or contribute to emission 

levels that exceed such growth allowance. Section 172(c)(4) of the CAA requires that the 

growth allowance be consistent with the achievement of reasonable further progress, and 

that it will not interfere with attainment of the applicable NAAQS by the applicable 

attainment date for the nonattainment area. The EPA is willing to work with HUD and 

states to identify potential areas that could be identified as EDZs.

4. Deadline for Submitting Nonattainment NSR Program SIPs for 2008 ozone NAAQS 

As explained in section III.A of this preamble, several commenters noted that the EPA’s 

proposed rulemaking did not address the SIP submittal deadline for the nonattainment 

NSR program for the 2008 ozone NAAQS. As explained in section III.A, the final rule 

includes a deadline of 3 years from the effective date of designation for states to submit 

their nonattainment NSR program SIPs for the 2008 ozone NAAQS. The rationale for 

this deadline appears in section III.A of this preamble.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 101 of 223

J. What are the emission inventory and emission statement requirements? 

1. Emission Inventory Requirements

a. Summary of the Proposal

We proposed that states should rely on their 3-year cycle inventory as described 

by the Air Emissions Reporting Requirements (AERR) to meet 182(a)(3)(A) periodic 

inventory obligations and 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). We also proposed 

to follow our existing guidance, titled “Public Hearing Requirements for 1990 Base-Year 

Emissions Inventories for Ozone and Carbon Monoxide Nonattainment Areas” in 

implementing certain SIP adoption and submission procedures for the emissions 

inventory requirements under CAA sections 182(a)(1) and 182(a)(3)(A) for purposes of 

the 2008 ozone NAAQS. 

b. Final Action and Rationale

We are generally finalizing as proposed, although in light of comments received

we made small changes to address reporting of ozone season day and partial county

emissions not currently addressed in the AERR, as explained below. CAA section 

182(a)(3)(A) requires that states submit periodic emission inventories no later than the 

end of each 3-year period after submission of the base year inventory for the 

nonattainment area. This requirement applies to Marginal and above ozone nonattainment 

areas. Thus, states must submit this periodic inventory no later than the end of each 3-

year period after submission of the base year inventory for the nonattainment area. The 

periodic inventory required by this final rule must include ozone season day emissions of 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 102 of 223

VOC and NOx for point, nonpoint and mobile sources (on-road and non-road) and firerelated event emissions. 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 annual emission inventories (2008, 2011, 2014, etc.) for a number of pollutants 

(see list provided at 40 CFR 51.15(a)) regardless of an area’s attainment status. During 

the submission of the 3-year cycle inventories in accordance with the AERR, states may

also submit ozone season day emissions to meet the periodic inventory requirement of 

this rule. If the periodic inventory required by this rule is not included in the AERR

submission, then it must be submitted to the EPA through other mechanisms in 

coordination with the Regional Office. Emission inventory elements submitted per the 

AERR that are relied on in the SIP also need to be adopted through the SIP submittal 

requirements per. Section 51.100 et seq.

We are finalizing the requirement that states use the reporting requirements of the 

AERR to determine the data elements required for such inventories, while including an 

additional requirement to report ozone season day emissions, as defined in this final rule,

rather than the AERR requirement for annual emissions for both the base year inventory

for the nonattainment area and the periodic inventory. Additionally, the EPA has included 

within section 51.1100(bb) and (cc) of this final rule definitions pertaining to base year 

inventory and the ozone season day emissions, in response to several significant 

comments as explained in section III.J.1.c. Accordingly, a base year inventory for the 

nonattainment area is due no later than 2 years after the effective date of designations,

and the emissions included in this inventory must be ozone season day emissions as 

defined in section 51.1100(cc) of this rule. A periodic inventory must be submitted on 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 103 of 223

intervals no later than the end of each 3-year period after submission of the base year 

inventory for the nonattainment area. 

The EPA has concluded that ozone season day emissions are the most appropriate 

temporal basis for developing the emissions to be included in this inventory, rather than 

summer day emissions as required by past implementation rules or the AERR. The EPA 

believes that summer day emissions required previously are an insufficient nomenclature, 

since in some areas nonattainment may be due to ozone exceedances in months other than 

summer months (e.g., wintertime), and necessitate focusing planning efforts on emissions 

occurring during the most relevant time period. Other than changing the name to be more 

inclusive, the definition of the emissions to be included is essentially the same as the 

previous definition. Ozone season day emissions means an average day’s emissions for a 

typical ozone season work weekday section as defined in section 51.1100(cc). The state 

will select, subject to EPA approval, the particular month(s) in the ozone season and the 

day(s) in the work week to be represented. The selection of days should be coordinated 

with the conditions assumed in the development of RFP plans and/or emissions budgets 

for transportation conformity to allow comparability of daily emissions estimates. The 

days should represent the conditions that contribute to high ozone that led to a 

nonattainment designation.

For all inventories submitted to the EPA for this rule, states must use the reporting 

requirements of the AERR to determine which sources are reported as point sources as 

well as the detail (i.e., data elements) required for such inventories, with the exception of 

the emissions values. The emissions values must be ozone season day emissions rather 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 104 of 223

than the AERR requirement for annual emissions for both the base year inventory for the 

nonattainment area and the periodic inventory.

Inventories of partial-county nonattainment areas must match the spatial extent of 

the nonattainment area to include only emissions within the nonattainment area. The EPA 

acknowledges the challenges associated with partial county inventories and has prepared 

an updated draft of the emissions inventory guidance (see below) to provide additional 

information for air agencies to use in preparing partial county emissions. The base year 

inventory for the nonattainment area is used as the baseline for RFP plans to achieve 

emissions reductions within the nonattainment area. As explained more fully in section 

III.C of this preamble, the EPA has determined that emissions reductions in areas outside 

the nonattainment area cannot be included in the area’s RFP demonstration. Thus, the 

EPA has concluded that for nonattainment areas with partial county boundaries, all 

inventories must be developed to reflect the partial county boundaries. This requirement 

partly supersedes the requirement to use the AERR data elements, such that for nonpoint 

and mobile sources, the county field required by the AERR should be replaced by a 

separate identifier to indicate the partial county nonattainment area. Because of this 

partial difference in requirements, periodic inventories for partial county nonattainment 

areas cannot be reported to the EPA as part of a state’s AERR/NEI triennial inventory

submission. Instead, states must make available the inventory data to the EPA as 

electronic files in some other electronic media, such as FTP, zip drives, or DVDs.

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 available at the time the SIP is developed. The 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 105 of 223

latest approved models should be used to estimate emissions from on-road and non-road 

sources, in combination with the latest available estimates of vehicle miles traveled

(VMT), vehicle population, and/or equipment activity. States are advised to check the 

EPA web pages for the currently approved 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. For on-road mobile 

emissions in states other than California, the current approved version of MOVES, as 

well as links to the Federal Register Notice approving that version, and links to guidance 

documents with much more detail on when and how MOVES should be used can be 

found at: http://www.epa.gov/otaq/models/moves/index.htm. For California, consult with 

the EPA Region 9 Office for the information on the latest approved version of the 

EMFAC (EMissions FACtors) model. 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/otaq/models.htm.

Additional information is available to states for all emissions sources and quality

assurance in the form of guidance. States should consult the latest version of 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 (latest final November 2005; revised draft April 

2014) and any subsequent updates to that guidance that the EPA makes available (which 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 106 of 223

can be found at http://www.epa.gov/ttn/chief/eidocs/eiguid/index.html). States should 

submit inventories that are appropriate for each nonattainment area and consistent with 

the EPA’s guidance.

As indicated previously, 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. The EPA expects that the base year inventory for the 

nonattainment area will serve as the RFP plan baseline. 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.56

The EPA is not finalizing the proposed approach, where we advised that states 

could follow our existing September 29, 1992, guidance, titled, “Public Hearing 

Requirements for 1990 Base-Year Emissions Inventories for Ozone and Carbon 

Monoxide Nonattainment Areas” in implementing certain SIP adoption and submission 

procedures for the emissions inventory requirements under CAA sections 182(a)(1) and 

182(a)(3)(A) for purposes of the 2008 ozone NAAQS. In that guidance, the EPA 

indicated it could provide states with a time-limited “de minimis” deferral of the CAA’s 

state public hearing requirement for the emissions inventory SIP revision required to be 

 

56 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), and public review is not required for NEI purposes. The states submit data to the 

NEI inventory 12 months after the NEI inventory year (i.e., calendar year 2011 NEI 

inventory data were to be submitted by December 31, 2012). 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 intends to publish the data 6 

months after the AERR data are required to be submitted to the EPA.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 107 of 223

submitted for each nonattainment area within 2 years of the date of designation. The EPA 

continues to believe that there are valid policy reasons to provide such a deferral since the 

inventories alone do not have significant regulatory context without the accompanying 

area-specific RFP plans or attainment plans, which are not required to be submitted until 

the 3rd year after designations at the earliest. However, as a general matter the CAA 

clearly requires that SIP submittals, including emissions inventories (see CAA sections 

182(a)(1) and 182(a)(3)(A)), must meet the requirements of CAA section 110(a)(2), 

which includes the requirement that the state provide reasonable notice and public 

hearing for SIP submittals. As there is nothing in these CAA provisions that provides for

waiver or delay of the public notification and hearing requirements specified in CAA 

section 110(a) de minimis or otherwise, we no longer believe it is appropriate to advise 

states to follow the 1992 guidance. We instead remind states that the EPA’s 

implementing regulations at 40 CFR Part 51 (Requirements for Preparation, Adoption, 

and Submittal of Implementation Plans) provide flexibility for states to streamline SIPrelated public notification and hearing procedures (for example, only holding a public 

hearing if one is requested, per 40 CFR § 51.102), and we encourage states to take 

advantage of those provisions in meeting the emissions inventory requirements under 

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

c. Comments and Responses

Commenters provided a variety of comments on issues relating to emissions 

inventories. A full accounting of those comments and the EPA’s detailed responses are 

further explained in the Response to Comments document contained in the docket. 

Significant comments were made that resulted in small changes from the proposed rule. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 108 of 223

In particular, commenters noted that the proposed rule failed to clearly indicate the need 

for seasonal or summer day emissions values in the required inventories and for use in 

the RFP plan. Different commenters suggested different terms, time periods, and 

emissions bases to use in the inventories and plans, including summer day, typical 

summer day, high ozone season day, and maximum daily. These comments and others 

noted the discrepancy with this rule and proposed changes to the AERR, in that seasonal 

emissions were not expressly required by either the proposed ozone requirements rule or 

the proposed AERR changes. As a result of these comments, the EPA has included the 

requirement in this rule as a logical outgrowth for ozone season day emissions, as defined 

in this final rule, to be used in emission inventories submitted for ozone SIPs. One 

commenter noted that partial county areas are not expressly addressed in the emissions 

inventory requirements and pointed out that it will be burdensome for states to create 

partial county inventories. The EPA addresses partial county emissions in this final rule 

by specifically defining the emissions to be included as “within the boundaries of the 

nonattainment area” and clarifies in this preamble that such partial county estimates are 

still needed to comply with the CAA requirements for inventories and RFP plans.

2. Source Emission Statements

States must develop emission reporting programs, called emission statement 

programs, for VOC and NOx sources in accordance with CAA section 182(a)(3)(B). The 

required state program and associated regulation defines how states obtain emissions data 

directly from facilities and report it to the EPA. States should coordinate their emission 

statement regulations with the requirements laid out in this rule, which includes 

coordination with requirements of the AERR.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 109 of 223

The EPA 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 nonattainment for the 2008 ozone NAAQS. 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. In cases when an 

existing emission statement requirement is still adequate to meet the requirements of this 

rule, states can provide the rationale for that determination to the EPA in a written 

statement in the SIP to meet this requirement. States should identify the various 

requirements and how each is met by the existing emission statement program. In cases 

when an emission statement requirement is modified for any reason, states must provide 

the revisions to the emission statement as part of their SIP.

K. What are the ambient monitoring requirements? 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 110 of 223

The EPA’s ambient monitoring requirements are contained in 40 CFR part 58. 

Monitoring rule amendments published on October 17, 2006, (71 FR 61236) established 

minimum ozone monitoring requirements based on population and levels of ozone in an 

area to better prioritize monitoring resources. The minimum monitoring requirements are 

contained in Table D-2 of Appendix D to part 58. The Photochemical Assessment 

Monitoring Station (PAMS) program, required by CAA section 182(c)(1), collects 

enhanced ambient air measurements in ozone nonattainment areas classified as Serious, 

Severe, or Extreme. The monitoring rule amendments published on October 17, 2006,

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. This final rule 

makes no changes to these existing requirements.

L. How can an area qualify for a 1-year attainment deadline extension? 

1. Summary of the Proposal

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.57 We proposed 

 

57 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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 111 of 223

the same approach as set forth in section 51.907 for purposes of the 2008 ozone NAAQS, 

which like the 1997 ozone NAAQS is a concentration-based standard.

2. Final Action

The EPA is finalizing the proposed 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 maximum 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 maximum 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 maximum 

8-hour value for an area would need to be at or below 0.075 ppm. The area would be 

eligible for the second extension if the area’s 4th highest daily maximum 8-hour value, 

averaged over both the original attainment year and the first extension year, is less than or 

equal to 0.075 ppm. 

3. Rationale

This approach is the same approach used for implementing the 1997 ozone 

NAAQS. The EPA believes this approach makes sense for the 2008 ozone NAAQS as 

well. 

4. Comments and Responses

The EPA received no adverse comments on the proposed action.

M. How will the EPA identify rural transport areas? 

 

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. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 112 of 223

1. Summary of Proposal

The CAA Amendments of 1990 contained section 182(h) that provides a “rural 

transport” determination 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 

nonattainment area requirements, regardless of the area’s classification under section 

181(a). This classification was created for rural nonattainment areas whose ozone 

problem is the result of ozone and/or precursors transport into the area that is so 

overwhelming that the contribution of local emissions to ozone concentrations above the 

level of the NAAQS is relatively minor and that emissions within the area do not 

significantly contribute to ozone measured in other areas.

The criteria in CAA section 182(h) make use of the terms “Metropolitan 

Statistical Area” (MSA) and “Consolidated Metropolitan Statistical Area” (CMSA) as 

defined by the U.S. Bureau of the Census. In 2000, OMB issued new standards58 for 

defining statistical areas to replace the pre-existing MSA and CMSA definitions (65 FR 

82228; December 27, 2000). Under the 2000 standards, MSAs are defined as having a 

central county or counties with an urbanized area of at least 50,000 people, plus adjacent 

outlying counties having a high degree of economic integration with the central county, 

as measured through worker commuting ties. Multiple counties are included in a MSA if 

at least 25 percent of employed residents in the central county commute to work in one or 

more adjacent counties. The term CMSA was retired in 2003 with the introduction of 

Core Based Statistical Area concepts. We proposed to interpret the references to both 

 

58 See http://www.census.gov/population/www/metroareas/metrodef.html.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 113 of 223

MSA and CMSA in section 182(h) to refer to the new Census Bureau definition for the 

term MSA.

2. Final Action and Rationale

We are finalizing, as proposed, the interpretation of the references to both MSA 

and CMSA in section 182(h) to refer to OMB’s current definition of MSA. Accordingly, 

to qualify as a rural transport nonattainment area, the nonattainment area’s boundary

could not include or be adjacent to a current OMB-defined MSA. Under this approach, 

any nonattainment area associated with a Census-defined micropolitan area (areas with 

central county or counties containing an urban cluster of 10,000-49,999 people plus 

adjacent counties having a high degree of economic and social integration as measured 

through worker commuting) or an area too sparsely populated to be included in a censusdefined statistical area, may be able to qualify as a rural transport nonattainment area.59

An area seeking to be classified as a rural transport nonattainment area would also need 

to meet the other criteria specified in section 182(h).

The EPA believes this interpretation of CAA section 182(h) is consistent with the 

original scope of section 182(h) as promulgated in 1990 and provides maximum 

flexibility for areas to qualify for this determination where appropriate. We did not 

receive any adverse comments on our proposed interpretation.

N. What are the special requirements for multi-state nonattainment areas?

Each state within a multi-state ozone nonattainment area is responsible for 

meeting all the requirements relevant to that area. Section 182(j)(1)(A) requires that 

 

59During the designations process for the 2008 ozone NAAQS, the EPA did not identify

any areas as rural transport areas.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 114 of 223

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, 

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. The EPA did not propose any changes to its 

prior interpretations of these sections of the CAA (See 70 FR 71612), and no comments 

were received on these provisions. Therefore, these interpretations will continue to apply

for purposes of the 2008 ozone NAAQS.

O. How will the EPA address interstate and international ozone transport?

1. Interstate Transport

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. First, section 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 115 of 223

110(a)(2)(D)(i) obligates states to include provisions in their infrastructure SIPs to 

prohibit any source or other type of emissions activity in one state from contributing 

significantly to nonattainment, or interfering with maintenance, of the NAAQS in another 

state, from interfering with required provisions preventing significant deterioration of air 

quality or from interfering with measures to protect visibility in another state. Second, 

section 126 directs states to include provisions to establish a notification process in their 

infrastructure SIPs through which downwind jurisdictions can be alerted to specific 

sources of transported pollution. The EPA issued its “Guidance on Infrastructure State 

Implementation Plan Elements Under the Clean Air Act Sections 110(a)(1) and 

110(a)(2),” on September 13, 2013,

60 on the required elements of the section 110 

infrastructure SIP submittal for the 2008 ozone NAAQS. This guidance does not, 

however, address the requirements of CAA section 110(a)(2)(D)(i). The proposal for this 

rulemaking, and this final rule, also do not address these requirements relating to 

transport. The EPA will address the transport requirements in a separate action.

Where interstate transported emissions contribute to an exceedance or violation 

and come from natural sources such as wildfires, air agencies can use the provisions in 

the EPA’s Exceptional Events Rule (40 CFR 50.14) to request exclusion of affected data.

Once EPA concurs with an air agency’s request, the event-influenced data are officially 

noted and removed from the data set used to calculate official design values.

Because of previously expressed stakeholder feedback regarding implementation 

of the Exceptional Events Rule and specific stakeholder concerns regarding the analyses 

that can be used to support ozone-related exceptional event demonstrations, the EPA 

 

60 See http://www.epa.gov/oar/urbanair/sipstatus/infrastructure.html.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 116 of 223

intends to propose revisions to the Exceptional Events Rule in a future notice and 

comment rulemaking effort and will solicit public comment at that time. Additionally, the 

EPA intends to develop guidance to address implementing the Exceptional Events Rule 

criteria for wildfires that could affect ambient ozone concentrations. Depending on the 

nature and scope of international emission events affecting air quality in the U.S., the 

EPA may be able to assist states in developing approvable exceptional events 

demonstrations. 

2. International 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 of the United States can affect to varying degrees the ability of 

some areas to attain and maintain the 2008 ozone NAAQS. 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. 

a. Summary of the Proposal

Section 179B of the CAA 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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 117 of 223

and maintain the ozone standard. The EPA proposed that this could include consideration 

of any emissions from North American or intercontinental sources.

b. Final Action and Rationale

The EPA is finalizing this action as proposed. The EPA believes that the best 

approach for addressing the potential impacts of international transport on nonattainment 

is for states to work with the relevant EPA Regional Office 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.

Although monitored data cannot be excluded for a determination of whether an 

area has attained a NAAQS 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 as described in CAA section 319(b). 

Where international transport meets the criteria and procedural requirements contained in 

the EPA’s Exceptional Events Rule (40 CFR 50.14), it may be addressed by that rule.61

c. Comments and Responses

Comment: One commenter supported the EPA’s interpretation of CAA section 

179B to include consideration of any emissions from any non-United States source and 

requested confirmation that the EPA’s interpretation may be applied to areas other than 

those adjoining international borders. The commenter believed that section 179B does not 

 

61 “Treatment of Data Influenced by Exceptional Events; Final Rule” (72 FR 13560, 

March 22, 2007.)
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 118 of 223

limit this option to areas, regardless of classification and believed that the EPA did not 

provide an explanation for why it proposed limiting the availability of a determination 

under section 179B for Marginal classified areas.

Response: The EPA appreciates the commenter’s support. The EPA has 

interpreted the Act such that section 179B allows the EPA to approve an attainment 

demonstration if the 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 has historically evaluated these demonstrations on a case-bycase basis, based on the individual circumstances. The EPA does not believe this 

provision is restricted to areas adjoining international borders. Also, in the proposal the 

EPA indicated that 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. However, if a Marginal area (which is not 

otherwise required to submit an attainment demonstration) were to submit to the EPA a 

demonstration that they could attain the standard but for international emissions, the EPA 

would be able to evaluate that demonstration similarly to demonstrations submitted by

higher classified areas.

P. How will the section 182(f) NOx provisions be handled?

1. Summary of the Proposal

We proposed, consistent with the approach taken in the Phase 2 Rule for the 1997 

ozone NAAQS and the 2005 updated guidance, that a previously granted NOx exemption 

(or waiver) under the 1-hour or 1997 ozone NAAQS would not automatically apply for 

purposes of implementing the 2008 ozone NAAQS.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 119 of 223

2. Final Action and Rationale

We are finalizing this approach as proposed. A state with a previously approved 

NOx waiver for the 1-hour or 1997 ozone NAAQS would need to submit a new request 

for an exemption that is supported by analyses specific to the 2008 ozone NAAQS. The 

new request should consider any relevant information developed after the 1-hour or 1997 

8-hour ozone NAAQS waivers were granted.

The EPA believes that while it may be appropriate in certain circumstances to 

grant NOx waivers, these waivers should be based upon applications and analyses 

specifically focused on the circumstances relevant for attainment of the 2008 ozone 

NAAQS, rather than a previous ozone NAAQS, since the standards for granting a waiver 

relate to attainment of the relevant NAAQS.

As states evaluate whether to seek a NOx waiver, the EPA encourages them to 

include consideration of air quality effects that may extend beyond the designated 

nonattainment area. A petition requesting a NOx exemption for the 2008 ozone NAAQS 

must contain adequate documentation that the provisions of section 182(f), some of 

which relate to attainment impacts in other areas, are met. The January 14, 2005 memo62

provides guidance on appropriate documentation for a waiver request for application to 

the 8-hour ozone program. The EPA believes this guidance is sufficient to cover the 2008 

ozone NAAQS. 

3. Comments and Responses

 

62 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.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 120 of 223

Comment: One commenter stated that the EPA should avoid granting NOx

exemptions for nonattainment areas that use NOx controls from other programs to 

demonstrate attainment and/or to address other provisions of the CAA.

Response: In order to request a NOx exemption, a state must submit a petition

specific to the 2008 ozone NAAQS. This petition must specifically address the provisions 

of section 182(f). The EPA will grant NOx exemptions only through notice- andcomment rulemaking where the public will have an opportunity to address whether the 

petition complies with the provisions of section 182(f). In granting waivers, the EPA will 

take into consideration existing NOx controls in an area.

Q. 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

Energy efficiency and renewable energy (EE/RE) policies and programs are 

adopted by federal, state and local governments to lower energy demand through the use 

of more energy efficient equipment, technologies and practices and to transition to 

cleaner energy. These policies help reduce electricity generation from fossil-fueled 

sources, which, in turn, can result in lower emissions of NOx (as well as other criteria 

pollutants, hazardous air pollutants and greenhouse gases). Energy efficiency policies 

offer cost savings benefits, and can be a cost-effective strategy to help achieve air quality

goals. The EPA encourages state adoption of these policies and programs to benefit 

nonattainment areas and to reduce the impact of ozone transport on downwind areas.

In July 2012, the EPA released the “Roadmap for Incorporating Energy 

Efficiency/Renewable Energy Policies and Programs into State and Tribal 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 121 of 223

Implementation Plans (SIPs/TIPs)”

63 to clarify guidance on the incorporation of EE/RE 

measures in SIPs/TIPs. The Roadmap is a “living” document that will be updated 

periodically as new information becomes available. The Roadmap describes four 

pathways that states can use for considering air pollution reductions from EE/RE policies 

and programs in SIPs and TIPs. Valid EE/RE policies and programs that meet the 

applicable requirements of section 182(c)(9) can also be used as contingency measures.

In addition to the Roadmap, the EPA is providing training and technical 

assistance to state, tribal and local agencies, as well as tools for quantifying the emissions 

impacts of EE/RE policies and programs (i.e., the AVoided Emissions genERation Tool, 

AVERT64), and energy savings information for state-level EE policies and programs.65

The EPA is also working with states to develop examples that illustrate how reductions 

from specific EE/RE policies and programs could be quantified and considered in SIPs. 

2. Land Use Planning

States may also wish to consider strategies that foster more efficient urban and 

regional development patterns as a long-term air pollution control measure. Resources 

include the HUD DOT EPA Sustainable Communities Partnership, as well as the policy

and technical guidance documents on land use available on the EPA’s Office of 

Transportation and Air Quality website.66 These documents provide communities 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 

 

63 See http://www.epa.gov/airquality/eere.html.

64 See http://epa.gov/avert/.

65 See http://www.epa.gov/statelocalclimate/state/topics/energy-efficiency.html.

66 See http://www.epa.gov/otaq/stateresources/policy/pag_transp.htm
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 122 of 223

areas achieve and maintain healthy air quality. The documents also include methods to 

help communities account for the air quality benefits of their local land use activities in 

their air quality plans. If wildfire impacts are significant in a particular area, air agencies 

and communities may be able to lessen the impacts of wildfires by working 

collaboratively with land managers and land owners to employ various mitigation 

measures including taking steps to minimize fuel loading in areas vulnerable to fire. 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

Areas may also consider incorporating travel efficiency strategies, such as 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 their SIPs. 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.” This report provides information on the effectiveness of travel efficiency

measures for reducing emissions of NOx, VOC and PM2.5 at the national scale. The 

second document is titled, “Transportation Control Measures: An Information Document 

for Developing and Implementing Emission Reduction Programs.” 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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 123 of 223

criteria pollutants. These documents are available on the EPA’s Office of Transportation 

and Air Quality website.67

R. Efforts to Encourage a Multi-pollutant Approach When Developing 2008 Ozone SIPs

1. Summary of the Proposal

The EPA stated in the proposal that from a planning and resource perspective, we 

believe it can be efficient for states to develop integrated control strategies that address 

multiple pollutants rather than separate strategies for each pollutant or NAAQS 

individually. The EPA also provided states with recommendations and considerations to 

take into account when developing a comprehensive approach. The EPA requested 

comment on what incentives or assistance we might be able to provide to encourage 

states to integrate their planning activities. 

2. Final Action and Rationale

From a planning and resource perspective, the EPA continues to believe that 

multi-pollutant control strategy planning can be efficient for states. 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. However, 

multi-pollutant approaches are not required as part of this rule.

States may also find it desirable to assess the impact of ozone, PM2.5 and/or 

regional haze control strategies on toxic air pollutants regulated under the CAA or under 

state air toxics initiatives. Given the relationships that exist between toxic air pollutants 

and the formation of ozone and PM2.5, states and sources may find that controls can be 

 

67 See http://www.epa.gov/otaq/stateresources/policy/pag_transp.htm
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 124 of 223

selected to meet goals for ozone and/or PM2.5 attainment as well as those of specific toxic 

air pollutant programs.

We recommend that states and tribes wishing to take a comprehensive approach 

consider the following activities:

 Choose or develop models for use in the attainment demonstration that can assess the 

air quality and ecosystem impacts of measures to reduce ozone precursors, secondary

fine particles, pollutants that contribute to regional haze and, where appropriate, toxic 

air pollutants and other related pollutants that can impact ecosystems. 

 Conduct an integrated assessment of the impact controls have on ambient levels of 

ozone, PM2.5, regional haze and, where applicable, toxic air pollutants, greenhouse 

gases, ecosystem protection and environmental justice considerations. 

 Use common data bases and analytical tools, where possible. 

3. Comments and Responses

Comment: Several commenters supported the use of a multi-pollutant approach. 

One commenter encouraged the EPA to allow states to take credit for programs that may

not yet have been fully implemented. Another commenter noted the constraints in the 

CAA, which focuses on a pollutant-by-pollutant approach, and another commenter stated 

that they prefer a single pollutant approach.

Response: The EPA supports multi-pollutant planning, where possible. Regarding 

the comment encouraging the EPA to allow states to take credit for programs that may

not yet have been fully implemented, please see Section III.B in the preamble for details 

regarding the EPA’s final policy on this subject. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 125 of 223

The EPA also supports considering the co-benefits of emissions reductions on 

multiple pollutants. We acknowledge that there are CAA constraints that may limit the 

incentive for multi-pollutant planning, and clarify that single-pollutant planning is 

acceptable under the Act. 

S. What are the requirements for the OTR?

The EPA proposed to adopt for the 2008 ozone NAAQS the same requirements 

applicable to the OTR that were codified in 40 CFR 51.916 for the 1997 ozone NAAQS, 

except that the submission date for OTR RACT SIPs required under section 182(b)(2) 

would be the same as provided under the RACT section of this regulation for 

nonattainment areas. (See Section III.A of this preamble for additional information on 

SIP submittal timeframes.) We are finalizing adoption of the requirements as proposed 

along with the OTR RACT SIP submittal due date.

T. Are there any additional requirements related to enforcement and compliance? 

The EPA did not propose 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 ...” The EPA’s current guidance, “Guidance on Preparing Enforceable 

Regulations and Compliance Programs for the 15 Percent Rate-of-Progress Plans (EPA452/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). The EPA did not 

solicit comment on this section and thus, none were received.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 126 of 223

U. What are the requirements for addressing emergency episodes? 

1. Summary of the Proposal

The EPA proposed that the existing requirements for emergency episodes (40 

CFR part 51, subpart H) would also apply to the 2008 ozone NAAQS.

2. Final Action and Rationale

The EPA did not receive any adverse comments on the proposal. The EPA is 

finalizing the requirements for emergency episodes as proposed. The EPA believes the 

existing requirements for emergency episodes (40 CFR part 51, subpart H) remain 

appropriate for the 2008 ozone NAAQS and/or any current ozone NAAQS. If wildfire is 

a potential contributor to these episodes, the EPA urges implementing state and local 

agencies to coordinate with the land management agencies, as appropriate, in developing 

plans and appropriate public communications regarding public safety and reducing 

exposure.

V. How does the “Clean Data Policy” apply to the 2008 ozone NAAQS?

1. Summary of the Proposal

The EPA proposed to apply the same approach with respect to the Clean Data 

Policy for the 2008 ozone NAAQS as it applied in the Phase 1 Rule for the 1997 ozone 

NAAQS. That is, a determination of attainment would suspend the obligation to submit 

attainment planning SIP elements for the 2008 ozone NAAQS. Such a determination 

would suspend the obligation to submit any attainment-related SIP elements not yet 

approved in the SIP, for so long as the area continues to attain the 2008 ozone NAAQS.

2. Final Action
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 127 of 223

The EPA is finalizing this action as proposed. The EPA is replacing 40 CFR 

51.918 with 40 CFR 51.1118 to consolidate in one regulation a comprehensive provision 

applicable to determinations of attainment for the current and former ozone NAAQS. 

Thus 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.

3. Rationale

The EPA continues to believe that it is appropriate for an area that has met an 

ozone NAAQS to suspend further attainment planning efforts for that ozone NAAQS.

The new section 51.1118 sets 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, RFP plans, contingency

measures and other attainment-related planning requirements 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. 

4. Comments and Responses

Comment: Several commenters supported the continued use of the Clean Data 

Policy. One of these commenters requested that the EPA expeditiously redesignate areas 

using its CAA Section 107(d)(3) authority for states that have submitted "clean data" 

certification and redesignation/maintenance SIPs.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 128 of 223

Response: As stated in the policy, the requirements for an attainment 

demonstration, RFP and contingency measures are designed to bring an area into 

attainment. Once this goal has been achieved, we believe the statute no longer requires 

submission of plans designed to bring the area into attainment and thus it is appropriate to 

suspend the obligation that states submit plans to meet that goal, so long as the area 

continues to attain the relevant standard. The EPA Regional Offices will act on 

redesignating areas based on any section 175A submittals that were received in as 

expeditious a manner as possible.

W. How does this final rule apply to tribes? 

As we mentioned in the proposal, tribes are generally not required to submit tribal 

implementation plans (TIPs).68 However, should a tribe choose to develop a TIP, this 

final rule is intended to serve as a guide for addressing key implementation issues for 

their area of Indian country. This rule will likely be especially useful to those tribes 

whose areas of Indian country were designated as separate nonattainment areas from 

surrounding state areas. 

X. What collaborative program has the EPA implemented for the 2008 ozone NAAQS?

 

68 On January 17, 2014, the United States Court of Appeals for the District of Columbia 

Circuit issued a decision vacating the EPA’s 2011 rule entitled “Review of New Sources 

and Modifications in Indian Country” (76 FR 38748) with respect to non-reservation 

areas of Indian country (See, Oklahoma Department of Environmental Quality v. EPA, 

740 F.3d 185 (D.C. Cir. 2014)). Under the court’s reasoning, with respect to CAA state 

implementation plans, a state has primary regulatory jurisdiction in non-reservation areas 

of Indian country (i.e., Indian allotments located outside of reservations and dependent 

Indian communities) within its geographic boundaries unless the EPA or a tribe has 

demonstrated that a tribe has jurisdiction over a particular area of non-reservation Indian 

country within the state.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 129 of 223

The EPA stands ready to assist states in implementing the 2008 ozone NAAQS. 

The Ozone Advance program, which began in April 2012, is an opportunity for 2008 

ozone NAAQS attainment areas to work collaboratively with EPA to improve local air 

quality. Information on the Ozone Advance program for the 2008 ozone NAAQS is 

provided in a separate guidance document that is available at 

http://www.epa.gov/ozonepmadvance. 

IV. What are the anti-backsliding requirements for the revoked 1997 ozone 

NAAQS?

A. What is the effective date of the revocation of the 1997 ozone NAAQS?

1. Summary of the Proposal

The EPA proposed to exercise its authority to revoke the 1997 ozone NAAQS for 

all purposes upon the publication of the final SIP Requirements Rule in the Federal 

Register.

71 The EPA also proposed that anti-backsliding provisions would apply to an 

area in accordance with its designation and, as applicable, its classification, for the 1997 

(and, if applicable, 1-hour) ozone NAAQS at the time of revocation of the 1997 ozone 

NAAQS. The following sections discuss in detail the applicable anti-backsliding 

requirements and how they apply to areas with various designations and classifications 

 

71 The EPA’s Classifications Rule for the 2008 ozone NAAQS also provided that the 

1997 ozone NAAQS would be revoked 1 year after the effective date of initial area 

designations for the 2008 ozone NAAQS for purposes of transportation conformity. The 

D.C. Circuit held that the EPA lacked authority for such a partial revocation, but did not 

question its authority to revoke a standard in total. NRDC v. EPA (D.C. Cir. No. 12-

1321, Dec 23, 2014). 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 130 of 223

for the 2008 and the soon to be revoked 1997 and the already revoked 1-hour ozone 

NAAQS.72

2. Final Action

The EPA is revoking the 1997 ozone NAAQS for all purposes upon the effective 

date of this final rule, which will be 30 days after publication of this rule in the Federal 

Register. When the 1997 ozone NAAQS is revoked, the anti-backsliding requirements for 

that NAAQS, as detailed in this final rulemaking, become applicable. The extent of 

continued implementation efforts for a revoked standard derives from administration of 

anti-backsliding requirements for the revoked standard. After the revocation of the 1997 

ozone NAAQS, the EPA will no longer be able to take action to reclassify or to 

redesignate areas for that standard. 

After revocation of the 1997 standard, the designations (and the classifications 

associated with those 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 designated 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 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(d).

3. Rationale

 

72 The 1-hour ozone NAAQS was revoked in the Phase 1 Rule. See 69 FR 23951, April 

30, 2004. The D.C. Circuit upheld EPA’s authority to revoke that standard so long as it 

introduces adequate anti-backsliding measures. South Coast Air Quality Management 

Dist. v. EPA, 472 F.3d 882, 899 (D.C. Cir. 2007)
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 131 of 223

This approach of establishing anti-backsliding requirements is consistent with the 

EPA’s practice in the transition from the 1-hour to the 1997 ozone NAAQS. It is not 

logical to attach to an area any anti-backsliding requirements for the revoked 1997 

NAAQS until that NAAQS is revoked because up until revocation, implementation of the 

1997 NAAQS is still adequately governed by the relevant CAA and regulatory

provisions, and the EPA can still take actions to redesignate or reclassify areas for that 

standard.73,74 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 it is reasonable to establish the date 

of revocation of the 1997 ozone NAAQS as the time for anti-backsliding requirements 

for that NAAQS to take effect, which is consistent with past practice under the Phase 1 

Rule. 

The EPA believes it is appropriate to revoke rather than retain the 1997 ozone 

NAAQS for all purposes.75 This final action ensures that only one ozone NAAQS—the 

more protective 2008 ozone NAAQS—directly applies, rather than having two standards 

apply concurrently. In revoking any standard, the EPA provides adequate antibacksliding requirements.

 

73 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-hour ozone NAAQS up to the date of revocation of that standard. 

74 See, for example, the redesignations to 1-hour attainment for Phoenix (June 14, 2005, 

70 FR 34362) and Atlanta (June 15, 2005, 70 FR 34660) which occurred right up until 

the June 15, 2005 effective date of revocation of the 1-hour ozone NAAQS.

75 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, subject to appropriate anti-backsliding requirements.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 132 of 223

We believe that revoking the 1997 ozone NAAQS is appropriate for all purposes. 

The EPA believes that the permanent retention of two standards, differing only in the 

ozone concentrations they allow, creates unnecessary complexity and is not necessary to 

provide for attainment of the more stringent NAAQS. The EPA’s reason for establishing 

the new standards of 0.075 ppm as requisite to protect public health and welfare was its

conclusion that the old standard of 0.08 ppm was not adequate. Revoking (with 

appropriate anti-backsliding measures) rather than retaining that 1997 ozone NAAQS 

will facilitate a more seamless transition 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 the EPA has determined is requisite to protect public health and welfare. Moreover, 

we believe that by requiring adequate anti-backsliding measures we will ensure continued 

momentum in states’ efforts toward achieving cleaner air. 

4. Comments and Responses

Comment: One commenter recognized the EPA’s authority to revoke the 1997 

ozone NAAQS, but opposed the revocation because attainment of the 1997 NAAQS

would advance progress toward the 2008 standard and ensures that such progress would 

be made sooner rather than later. The commenter indicated that the EPA’s proposal to 

revoke the 1997 ozone NAAQS would waive key requirements for Extreme 

nonattainment areas under the 1997 standard before the deadline comes due. The 

commenter also stated that the EPA must explain the specific problems caused by

retaining the 1997 (and 1-hour) ozone NAAQS and tailor the solutions to address those 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 133 of 223

specific problems, citing several rulings that the commenter believed that the EPA must 

provide a rational basis for their action.

Response: The anti-backsliding approach that the EPA proposed retains all 

applicable control requirements for the 1997 ozone NAAQS, while enabling areas, where 

possible, to focus planning efforts on meeting the more protective 2008 ozone NAAQS. 

We believe the strong anti-backsliding provisions in 40 CFR 51.1105 will ensure that 

controls already adopted to attain the previous NAAQS continue to be implemented until 

an area attains the 2008 ozone NAAQS, and will also ensure that there will be no delay in 

attaining the 1997 ozone NAAQS. Since it is impossible to attain the 2008 ozone 

NAAQS without also attaining the 1997 ozone NAAQS, retaining the 1997 ozone 

NAAQS would be largely superfluous from a health protection standpoint. 

The EPA agrees with the commenter that the adopted revocation approach means 

that the 1997 NAAQS would be revoked before the statutory maximum attainment date 

for areas classified as Severe and Extreme for the 1997 ozone NAAQS. We believe that 

Congress understood this possibility when it amended the CAA in 1990 to require the 

EPA to review each NAAQS every 5 years. Similarly, Congress also recognized that 

areas with more significant ozone problems would need more time to attain the standard, 

and gave these areas more time to attain the standard, with timeframes for attainment 

largely beyond the 5-year timeframe required for review of the NAAQS. The EPA does 

not agree with the commenter’s characterization of revoking the NAAQS, while retaining 

a retinue of anti-backsliding requirements, as creating perpetual extensions for attaining 

old standards. The commenter’s argument ignores the fact that the old standard has been 

supplanted by a more protective standard, and that the EPA’s anti-backsliding 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 134 of 223

requirements, combined with the CAA’s new obligations to achieve the more stringent 

2008 ozone NAAQS as expeditiously as practicable, effectively fulfill the function of the 

prior attainment date. In addition the EPA notes that the attainment demonstration for the 

prior standard is retained as an anti-backsliding measure.

The EPA believes that integrating prior requirements with new goals facilitates 

coherent, effective and timely planning and controls, and minimizes the separate 

potentially duplicative submittal of requirements left over from obsolete standards. In this 

time of diminished resources, the states and the EPA need to move forward efficiently 

without being overburdened by unnecessary paperwork requirements arising from former 

standards that can detract from efficient movement towards more stringent standards.

For these reasons, and consistent with the anti-backsliding regime previously 

endorsed by the D.C. Circuit, South Coast Air Quality Management Dist. v. EPA, 472 

F.3d 882 for the transition from the 1-hour to the 1997 ozone NAAQS, the EPA believes 

that the revocation and associated anti-backsliding measures for the 2008 ozone NAAQS 

provide the appropriate way to move toward attaining the more protective standards in a 

timely and effective manner, while ensuring that progress made under previous ozone 

NAAQS is not lost. For additional details, please refer to the Response to Comments 

document.

Comment: A number of commenters in favor of revocation of the 1997 ozone 

NAAQS suggested alternate dates for revocation. Several commenters wanted an earlier 

date for revocation, such as the promulgation date of the 2008 ozone NAAQS or the 

effective date of designations for the 2008 ozone NAAQS. One of these commenters 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 135 of 223

questioned whether the revocation would occur on the date of publication of the rule in 

the Federal Register or on the effective date of the rule.

Response: We disagree with commenters that recommended that the EPA revoke 

the 1997 ozone NAAQS at an earlier date. We believe that revoking the 1997 ozone 

NAAQS prior to the establishment of clear anti-backsliding requirements would create a 

gap when taking action on plans submitted by states. The EPA believes and the court has 

endorsed in South Coast v. EPA, 472 F.3d 882, that backstops to prevent relaxation of 

measures implemented for a previous NAAQS must be in place before the EPA can 

revoke that NAAQS. The EPA, upon considering the comment on the effective date of 

revocation, clarifies here that the 1997 ozone NAAQS will be revoked on the rule’s 

effective date as set forth in the Federal Register. That is, the 1997 ozone NAAQS will 

be revoked 30 days after publication of the final rule in the Federal Register.

B. What are the applicable requirements for anti-backsliding purposes following the 

revocation of the 1997 ozone NAAQS?

1. Summary of the Proposal

The EPA proposal stated that subpart AA, 40 CFR section 51.1100 et seq., would 

provide comprehensive anti-backsliding requirements for transition to the 2008 ozone 

NAAQS. The EPA proposed that, upon revocation of the 1997 ozone NAAQS, subpart 

X, 40 CFR section 51.900 et seq., would be effectively replaced by the proposed subpart 

AA.

In proposed subpart AA, 51.1100(o) specified the list of “applicable 

requirements” that would apply as anti-backsliding requirements for the transition from 

the 1997 ozone NAAQS to the 2008 ozone NAAQS. The EPA proposed as “applicable 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 136 of 223

requirements” the requirements that were previously listed in section 51.900(f) (except

for Stage II vapor recovery),78 as well as the addition of three anti-backsliding 

requirements that were included as a result of the South Coast v. EPA79 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 v. EPA 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 anti-backsliding for 

that standard. The proposed action would formally list them with the other applicable 

requirements.

The applicable requirements discussed previously apply to areas that are 

designated nonattainment for the 2008 ozone NAAQS and remain nonattainment for a 

previous ozone NAAQS on the date the 1997 ozone NAAQS is revoked. For areas 

designated attainment for the 2008 ozone NAAQS but nonattainment for the 1997 ozone 

NAAQS, the EPA proposed that after the 1997 ozone NAAQS is revoked, these areas 

would not be required to retain in their SIPs nonattainment NSR programs for ozone. 

Instead, such areas would be required to implement PSD requirements for ozone. The 

EPA’s determination that after revocation of the 1997 ozone NAAQS nonattainment 

 

78 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 II vapor recovery requirement for Serious and higher ozone 

nonattainment areas on May 16, 2012 (77 FR 28772). Thus, in the proposal, the section 

182(b)(3) Stage II requirement is omitted from the list of applicable requirements in 

51.1100(o). 

79 South Coast Air Quality Management District v. EPA, 472 F.3d at 899.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 137 of 223

NSR requirements do not apply to areas designated attainment for the 2008 ozone

NAAQS is consistent with the Greenbaum v. EPA decision.

80

Based on requirements in the Phase 1 rule for the 1997 ozone NAAQS, as 

modified in light of South Coast v. EPA, the definition of applicable requirements 

proposed in section 51.1100(o) included 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 demonstrations; 13) Nonattainment contingency measures; 14) 

Nonattainment NSR requirements; and 15) Section 185 enforcement requirements for 

Severe and Extreme nonattainment areas for failure to attain. 

As part of the proposal, the EPA indicated that upon revocation of the 1997 ozone 

NAAQS, the designations for that NAAQS would have no further effect except as 

references for anti-backsliding purposes. References to the designations for the revoked 

standard in 40 CFR part 81 would be retained solely for anti-backsliding purposes for 

areas designated nonattainment for the 2008 ozone NAAQS, and should not be viewed as 

current nonattainment designations under CAA §107 within the meaning of 40 CFR 

 

80 Greenbaum v. EPA, 370 F.3d 527, 536 (6th Cir. 2004). “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.”
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 138 of 223

51.166(i)(2) and 52.21(i)(2) and, therefore, would not trigger the exemption from PSD 

requirements otherwise resulting from those provisions. The proposal also requested

comment as to whether or not 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 and how to word such an amendment. Alternatively, the EPA sought 

comment as to whether it would be sufficient for the EPA to articulate the interpretation 

of these provisions as described earlier in this paragraph. 

2. Final Action

The EPA is finalizing the anti-backsliding requirements as proposed, including 

amendments to 51.166(i)(2) and 52.21(i)(2) which address classifications for revoked 

NAAQS. The amended subpart AA addresses anti-backsliding requirements for both 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 the 1997 ozone NAAQS81 at the time of revocation 

of the 1997 ozone NAAQS will be subject to section 51.1100(o). As proposed, areas 

designated attainment for the 2008 ozone NAAQS and nonattainment for the 1997 ozone 

NAAQS when the 1997 ozone NAAQS is revoked will become subject to PSD

requirements rather than nonattainment NSR requirements once the revocation is 

effective.

 

81 Note that some areas designated as nonattainment for the 1997 NAAQS might also 

retain anti-backsliding requirements for the already revoked 1-hour ozone NAAQS.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 139 of 223

Also as proposed, three items are being added to the list of applicable 

requirements: nonattainment contingency measures, nonattainment NSR requirements

(clarified to refer to major source thresholds and offset ratios), and section 185 

requirements for Severe and Extreme areas. As proposed, Stage II vapor recovery is not 

being included in the list of applicable requirements for the reasons described above.

Based on feedback received during the comment period, the EPA is specifically

including two additional items in the list of applicable requirements: RACM and section 

182(e)(5) contingency measures. These provisions were implicitly included in the

attainment demonstration but are listed separately for clarification. As such, the complete 

list of applicable requirements in section 51.1100(o) is: 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 demonstrations; 13) Nonattainment contingency measures; 14) 

Nonattainment NSR major source thresholds and offset ratios;

82 15) Section 185 

requirements for Severe and Extreme areas for failure to attain; 16) RACM; and 17) 

Contingency measures for SIPs invoking section 182(e)(5) of the CAA.

 

82 It should be noted that replacement of nonattainment NSR SIP provisions with PSD 

upon successful redesignation to attainment does not relieve sources of their obligations 

under previously established permit conditions.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 140 of 223

3. Rationale

As detailed in the proposal,83 the EPA already treats nonattainment contingency 

measures, nonattainment NSR major source thresholds and offset ratios, and section 185 

requirements for Severe and Extreme areas as being included in the list of applicable 

requirements that apply to areas for anti-backsliding purposes under the revoked 1-hour 

NAAQS, consistent with the South Coast v. EPA decision. Their explicit inclusion in this 

list is to formalize their place in the list of applicable requirements. Similarly, Stage II 

vapor recovery is not included in this list due to the May 16, 2012 determination84 that 

the requirement is waived, and that an area currently implementing a Stage II control 

program can, under certain circumstances, remove it from the SIP. These changes to the 

list of applicable requirements reflect policies already being implemented by the EPA. 

Similarly, areas designated attainment for the 2008 ozone NAAQS and 

nonattainment for the 1997 ozone NAAQS when the 1997 ozone NAAQS is revoked will 

become subject to PSD rather than nonattainment NSR once the revocation takes effect. 

An area that is attainment for the 2008 ozone NAAQS is attaining the most current and 

health protective ozone standard. The EPA believes that Congress did not intend to hold 

such an area to the requirements for an old standard when the area has met a newer, more 

stringent standard of the same form. Such areas will implement PSD for the 2008 ozone 

NAAQS once the revocation of the 1997 ozone NAAQS takes effect, notwithstanding 

any remaining references to nonattainment designations for the 1997 ozone NAAQS in 

40 CFR part 81. The references to the designations for the revoked standard in 40 CFR 

 

83 See 78 FR 34178, June 6, 2013

84 See 77 FR 28772
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 141 of 223

part 81 are retained solely for anti-backsliding 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 designations 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.

Upon reviewing comments, the EPA decided that sufficient arguments were 

provided to append two additional items to the list of applicable requirements in 

51.1100(o). Those two items are RACM and 182(e)(5) contingency measures. The EPA 

views this as a clarification, rather than as an addition of control elements. Attainment 

demonstration SIPs are already listed as an applicable requirement. RACM is an integral 

part of an approvable attainment demonstration. Similarly, contingency measures will 

become a required element of 51.1100(o) consistent with the South Coast v. EPA 

decision. Adding contingency measures associated with section 182(e)(5) to the list is a 

clarification, rather than an imposition of an additional requirement.

4. Comments and Responses

Comment: A commenter pointed out that, with regard to applicable requirements, 

federal measures and locally implemented measures are held to two separate standards. 

The commenter used the example of Stage II vapor recovery. The EPA removed Stage II 

vapor recovery from the list of applicable requirements. However, locally implemented 

control measures included in a SIP for a previous NAAQS must be retained in perpetuity. 

Response: The EPA disagrees with the commenter. SIP-approved control

measures, whether federal programs or locally implemented measures, may not be 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 142 of 223

modified unless the modification meets the requirements of CAA section 110(l) and, if 

applicable, section 193. For purposes of anti-backsliding, Stage II control programs are 

no longer mandatory because the EPA has determined under the statutory provisions of 

section 202(a)(6) that another federal program, onboard refueling vapor recovery

(ORVR) technology, is in widespread use, rendering Stage II controls largely redundant. 

However, in an area where a Stage II control program is already adopted into the SIP, it 

cannot be removed from the SIP unless the conditions of CAA sections 110(l) and 193 

are met. Therefore, it is subject to the same treatment as any locally implemented SIPadopted control measure.

Comment: A commenter stated that no planning requirements from the 1997 

ozone NAAQS should apply once that NAAQS is revoked. The commenter based this on 

two arguments. First, CAA section 172(e) applies to control requirements and not state 

planning requirements. Second, the commenter argued that the decision in South Coast v. 

EPA has limited applicability because the court was faced with two ozone standards that 

differed in form and level, and in this situation the two standards are of the same form.

Response: The EPA agrees that the transition from the 1997 ozone NAAQS to the 

2008 ozone NAAQS calls for a re-evaluation of the provisions necessary to protect 

against backsliding and ensure continued progress toward achieving healthy air quality. 

However, we do not agree that South Coast v. EPA has limited application to informing 

appropriate anti-backsliding requirements for a revoked 1997 NAAQS simply because 

the 2008 NAAQS has the same form as the 1997 NAAQS. With only one exception, the 

seventeen “applicable requirements” that will be listed in new 40 CFR 51.1100(o) are all 

control requirements, consistent with South Coast v. EPA. To the extent that any of these 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 143 of 223

control requirements have not been implemented in a 1997 nonattainment area by the 

time the 1997 NAAQS is revoked, consistent with South Coast v. EPA the state must 

ensure these controls are adopted into the SIP and implemented, if applicable. The one 

applicable requirement that involves both planning and control elements is the attainment 

demonstration requirement.85 Since the attainment demonstration is part of the basis for 

establishing that the RACM requirement (a control requirement consistent with South 

Coast) is satisfied, the EPA believes it is appropriate to retain this as an applicable antibacksliding requirement to ensure timely progress toward attainment of the 1997 

NAAQS, especially for areas classified in the highest classifications where the statutory

attainment dates for the 1997 NAAQS extend well into the future (e.g., 2019 for Severe 

and 2024 for Extreme areas). The EPA encourages states to synchronize their planning 

and emissions control efforts for attainment of the 2008 ozone NAAQS with any

unfulfilled anti-backsliding requirements associated with the revoked 1997 ozone 

NAAQS. As a reminder, a Clean Data Determination for the 1997 ozone NAAQS can 

suspend the associated attainment demonstration requirement for as long as the area 

continues to attain the 1997 NAAQS.

Comment: A commenter pointed out that there are several control measures that 

continue to apply to areas after a standard is revoked. The commenter argued that, for 

consistency, the EPA should include these items in the list of applicable requirements. 

For example, RACT is listed as an applicable requirement, but not RACM. The 

 

85 An attainment demonstration includes technical analyses of base year emissions and 

future year emissions, including the impact of RACM and RACT; a list of adopted 

control measures with schedules for implementation; and a RACM analysis.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 144 of 223

commenter argued that RACM should be listed as an applicable requirement. Similarly, 

transportation conformity, “other control measures” as necessary for attainment under 

CAA section 172(c)(6), and contingency measures for CAA section 182(e)(5) measures 

should be retained as applicable requirements, according to the commenter.

Response: The EPA agrees in part with the commenter, that it is appropriate to list 

both RACM and section 182(e)(5) contingency measures as “applicable requirements” in 

the final rule in section 51.1100(o). RACM is a component of the attainment 

demonstration and is a requirement of the CAA. The EPA reviews each SIP submission 

from a state to ensure that sufficient information is provided for the EPA to determine 

whether the state has adopted all RACM necessary for attainment as expeditiously as 

practicable and provided for implementation of those measures as expeditiously as 

practicable. For areas remaining in nonattainment for the 1997 ozone NAAQS and 

designated nonattainment for the 2008 ozone NAAQS, the EPA does not believe that 

revocation of the NAAQS should halt or delay the planned implementation of control 

measures. These measures, while adopted pursuant to the 1997 ozone NAAQS, will also 

assist the areas in attaining the 2008 ozone NAAQS. 

Similarly, for Extreme areas relying on CAA section 182(e)(5), the EPA agrees 

that the contingency measures required for that program should be held to the same 

requirements as contingency measures for sections 172(c) and 182(c) of the CAA. Thus 

the EPA is adding 182(e)(5) contingency measures to the list of applicable requirements 

in 51.1100(o).

However, the EPA does not agree with the commenter that conformity needs to be 

retained as an applicable requirement. Transportation and general conformity are retained 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 145 of 223

as requirements for all areas designated nonattainment for the 2008 ozone NAAQS. For 

areas designated attainment for the 2008 ozone NAAQS, these areas are meeting the most 

stringent, health-protective NAAQS and thus have no remaining conformity requirements 

because they are designated attainment for the 2008 ozone NAAQS and the designations 

for the 1997 ozone NAAQS which trigger conformity requirements are 

revoked. Transportation and general conformity apply only in areas designated as 

nonattainment or redesignated to attainment with an approved CAA section 175A 

maintenance plan. (CAA section 176(c)(5)). Upon the effective date of the revocation of 

the 1997 ozone NAAQS the only relevant designation for ozone for conformity purposes

will be an area’s designation for the 2008 ozone NAAQS.86 Areas that are designated 

attainment for the 2008 ozone NAAQS are not subject to transportation or general 

conformity requirements regardless of their designation for the 1997 ozone NAAQS at 

the time of revocation of that NAAQS. (CAA section 176(c)(5)). Similarly, “other 

control measures” necessary for attainment are already covered by the attainment 

demonstration, and cannot be removed without satisfying CAA section 110(l). 

Comment: A commenter disagreed with what it described as the EPA’s proposal 

to allow areas that were designated nonattainment for the 1997 ozone NAAQS or the 1-

hour NAAQS before those standards were revoked to terminate any nonattainment NSR 

or 185 fee requirements once the 1997 ozone NAAQS is revoked and the area has been 

designated or redesignated attainment for the 2008 ozone NAAQS or a redesignation 

 

86 The EPA revoked the 1997 ozone NAAQS for transportation conformity on May 21, 

2012. (77 FR 30160) The revocation of the 1997 ozone NAAQS for transportation 

conformity purposes was effective on July 20, 2013. In this final rule, the EPA is 

revoking the 1997 ozone NAAQS for all remaining purposes.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 146 of 223

substitute has been approved for the revoked standard. The commenter argues that 

allowing such an area to remove nonattainment NSR or 185 fee requirements from the 

SIP is contrary to the NRDC v. EPA ruling.

Response: The court ruled in NRDC v. EPA that it would be improper for the EPA 

to relieve an area that has not attained a standard from requirements imposed for failure 

to attain that standard. The EPA’s “redesignation substitute” proposal does not do that. It

relieves areas that demonstrate that they are in fact attaining a standard from obligations 

arising from failure to attain that standard as well as all anti-backsliding requirements 

applicable for any prior revoked standard without the need for a formal redesignation. 

Nothing in the 2009 NRDC v. EPA decision forecloses that approach. The EPA also 

rejects any suggestion that an area would remain subject to NSR or 185 fees after it is 

designated as an attainment area and any prior standards for which it was designated 

nonattainment have been revoked. Areas cannot be redesignated to attainment for ozone 

unless they have attained all current standards and met all anti-backsliding requirements 

applicable for prior revoked standards. Moreover, nonattainment NSR is not a 

requirement in attainment areas and 185 by its own terms does not apply to an area that 

has been designated “an attainment area for ozone.”

C. Application of Transition Requirements to Nonattainment and Attainment Areas

This section discusses how the transition requirements 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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 147 of 223

taking into account the area’s status with respect to prior standards.87 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.88 Appendix B of this 

rule contains a list of areas subject to anti-backsliding requirements.

1. Requirements for Areas Designated Attainment for the 2008 Ozone NAAQS and 

Maintenance for the 1997 Ozone NAAQS

a. Summary of the Proposal

For this category, the EPA proposed that an 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.

b. Final Action

 

87 One area, the Uintah Basin, UT, was designated as “unclassifiable,” and for purposes 

here would be treated like an area designated “attainment.” 

88 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 anti-backsliding requirements. For ease of reference, we refer to these 

areas as “Maintenance” areas.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 148 of 223

The EPA is finalizing this as proposed. 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 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.

c. Rationale

All areas in this category were 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 (as well as any other revoked ozone NAAQS) and 

designated attainment for the more stringent 2008 ozone NAAQS. The approved section 

175A maintenance plan for the 1997 ozone NAAQS satisfied the anti-backsliding 

requirements of these areas for the prior 1-hour NAAQS. 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(l) and 

193. The EPA believes that there is no justification for additional maintenance plan

demonstration burdens to be imposed on these areas solely because at one time they were 

designated nonattainment under the revoked 1997 ozone NAAQS. This approach 

recognizes and reflects that these areas were redesignated to attainment for the 1997 

ozone NAAQS prior to its revocation, and have been designated attainment for the 2008 

ozone NAAQS.

d. Comments and Responses
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 149 of 223

Comment: One commenter opposed this action for several reasons. First, the 

commenter stated that the EPA cannot dispense with the statutory responsibility of areas 

by excusing compliance with CAA section 110(a)(1). Second, the commenter believes 

that demonstrating long-term compliance via an approved 175A maintenance plan for the 

1997 ozone NAAQS is not sufficient to demonstrate continued compliance with the 2008 

ozone NAAQS. The commenter maintained that even with an approved 175A plan for the 

1997 ozone NAAQS, emissions can continue to increase. There is nothing in the 

approved 175A plan that will be activated should the area start to violate the 2008 ozone 

NAAQS. 

Response: The EPA disagrees with the commenter. The EPA is not ignoring the 

maintenance provision of section 110(a)(1), but rather evaluating what is sufficient to 

address that provision under the circumstances of transition to a new more stringent 

NAAQS for an area designated attainment for that more stringent NAAQS. With the 

control measures included in their SIPs and in approved section 175A maintenance plans,

those areas have already achieved sufficient emissions reductions to bring them into 

attainment for both the 1997 ozone NAAQS and the more stringent 2008 ozone NAAQS. 

These SIP control measures cannot be weakened without satisfying section 110(l) and in 

some cases also section 193, which effectively serve as anti-backsliding provisions. The 

EPA is not relieving areas designated attainment of the requirement under section 

110(a)(1) to maintain the more stringent 2008 ozone NAAQS, but rather, the EPA is 

allowing the approved PSD plan for the 2008 ozone NAAQS to suffice as a maintenance 

showing for these areas. These are areas that already have many controls in place, 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 150 of 223

including approved section 175A maintenance plans ensuring that the areas can maintain 

the level of the prior standard. 

While these approved 175A maintenance plans were established for maintenance 

of the 1997 ozone NAAQS, and accordingly help prevent backsliding for that revoked 

NAAQS, they also provide a foundation for maintenance of the 2008 ozone NAAQS, 

which, in combination with other active requirements for the 2008 ozone NAAQS, 

contribute to maintenance of the new standard. The emissions reductions for one NAAQS 

build upon the emissions reductions from previous NAAQS. The EPA concludes that no 

additional measures beyond the prior 175A maintenance plans and the PSD plans for the 

2008 standard should be necessary to provide for maintenance in these areas. The EPA 

will work with states as necessary to address any future air quality concerns and 

maintenance needs for these areas.

2. Areas Designated Attainment for the 2008 Ozone NAAQS and Nonattainment for the 

1997 Ozone NAAQS

a. Summary of the Proposal

The EPA proposed two approaches for this category. The EPA proposed as its 

preferred approach for areas designated attainment for the 2008 ozone NAAQS and 

nonattainment for the 1997 ozone NAAQS (as of revocation of the 1997 ozone NAAQS) 

that the state not be required to adopt any outstanding applicable requirements for the 

area for the revoked 1997 standard. This approach was similar to the approach followed 

in the Phase 1 Rule. The EPA also proposed, 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).
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 151 of 223

The second, and less preferred, alternative proposed by the EPA for these areas 

was that the state be required to demonstrate maintenance for the 2008 ozone NAAQS 

via a “maintenance showing.” This maintenance showing would be due 3 years after the 

effective date of designations for the 2008 ozone NAAQS and would be in a form other 

than a formal SIP revision. The maintenance showing would contain a demonstration of 

continued maintenance of the 2008 ozone NAAQS in the area for 10 years from the 

effective date of the area’s designation as attainment for the 2008 ozone NAAQS. The 

EPA committed to providing guidance regarding the specific elements of the 

maintenance showing if this route were chosen.

b. Final Action

The EPA is finalizing the preferred option: for areas designated attainment for the 

2008 ozone NAAQS and nonattainment for the 1997 ozone NAAQS (as of revocation of 

the 1997 ozone NAAQS) states are not required to adopt any outstanding applicable 

requirements for the revoked 1997 standard. 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).

c. Rationale

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, notwithstanding any existing nonattainment 

designation. 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 air quality that attained both the 1997 ozone NAAQS and 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 152 of 223

resulted in an attainment designation for 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(l) and 193. 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

and have been sufficient to bring the area into attainment of both the 1997 and 2008 

standards.

d. Comments and Responses

Comment: A commenter believed that the EPA should adopt the alternative 

approach. The commenter stated that an inequity arises from the fact that areas 

designated maintenance for the 1997 ozone NAAQS prior to revocation of the NAAQS 

have contingency measures that are activated should the area begin to re-violate the 1997 

ozone NAAQS. These areas designated attainment for the 2008 ozone NAAQS and 

nonattainment for the 1997 ozone NAAQS would not be subject to any maintenance 

plans or contingency measures. Implementing the alternative approach would address this 

inequity.

Response: The EPA disagrees with the commenter. The control measures 

implemented by these areas and included in their SIPs have already produced sufficient 

emissions reductions to achieve air quality that not only attained the 1997 ozone

NAAQS, but also resulted in an attainment designation for the more stringent 2008 ozone 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 153 of 223

NAAQS. These control measures cannot be modified or removed without a

demonstration satisfying section 110(l) and in some cases both sections 110(l) and 193. 

These demonstrations must address not only the 1997 ozone NAAQS but also the 2008 

ozone NAAQS as well as any future NAAQS.

Comment: One commenter believed both proposed approaches violate the plain 

language of the CAA by not requiring the area to submit a 175A maintenance plan, and 

thus opposed both options. A second commenter believed that the EPA should continue 

to require formal 10-year maintenance plan submittals for the 1997 ozone NAAQS from 

these areas in an attempt to guarantee that controls are not relaxed, thus impacting 

downwind areas.

Response: We believe that an approved PSD SIP, in conjunction with the other 

already-existing statutory and regulatory provisions that govern implementation of ozone 

standards, and the historical safeguards in place for the area adopted for prior NAAQS, 

are generally sufficient to prevent backsliding, and to satisfy the requirement for 

maintenance under section 110(a)(1). The control measures implemented by these areas 

and included in their SIPs have already produced sufficient emissions reductions to 

achieve air quality that attained the 1997 ozone NAAQS, and resulted in an attainment 

designation for the more stringent 2008 ozone NAAQS . These control measures cannot 

be modified or removed without a 110(l) showing and in some cases both a 110(l) and a 

193 showing. Areas designated attainment for the 2008 standard remain subject to the 

attainment and maintenance requirements of that standard. These include continued 

implementation of the control measures that brought the area into attainment. For these 

areas, and for any area designated attainment for the 2008 NAAQS, the CAA’s general 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 154 of 223

NAAQS air quality management framework and associated regulatory provisions 

continue to apply, and serve as the foundation for handling any potential future issues 

with maintaining the 2008 NAAQS.

3. Areas Designated Nonattainment for the 2008 Ozone NAAQS and Maintenance for the 

1997 Ozone NAAQS

a. Summary of the Proposal

The EPA proposed 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.

b. Final Action

The EPA is finalizing this as proposed.

c. Rationale

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 request and of the section 175A maintenance plan for the 1997 ozone 

NAAQS required the EPA to determine that any anti-backsliding requirements of these 

areas for the 1997 standard, as well as any requirements that might be applicable for the 

1-hour standard, have been met. Thus the 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 NAAQS have been met, but also that all applicable antibacksliding measures for the 1-hour standard have been adopted and approved into the 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 155 of 223

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(l) 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 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 a revoked ozone NAAQS. 

d. Comments and Responses

Comment: A commenter that supported the EPA’s approach indicated that the 

proposed regulatory text for areas designated nonattainment for the 2008 ozone NAAQS 

and maintenance for the 1997 ozone NAAQS, located in 51.1105(a)(2), should be 

modified in line with text in section 51.1105(a)(4) to allow maintenance plans to be 

modified consistent with CAA sections 110(l) and 193. 

Response: The EPA agrees that the text regarding areas designated maintenance 

for the 1997 ozone NAAQS should be modified. The regulatory text has been adjusted to 

reflect that maintenance plans can be modified pursuant to CAA sections 110(l) and 193.

Comment: One commenter indicated that a second 10-year 175A maintenance 

plan was needed by these areas. The commenter maintained that the EPA’s proposed 

approach does not demonstrate continued maintenance. The commenter stated that an 

area designated nonattainment for the 2008 ozone NAAQS should prepare a second 

maintenance plan to assure maintenance and set conformity budgets. Another commenter 

opposed the proposal because the CAA clearly requires two 10-year maintenance plans. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 156 of 223

The fact that the area is designated nonattainment under the 2008 ozone NAAQS is no 

guarantee that there will be no increase in ozone violations. The commenter suggested 

that the EPA review the record for areas violating a NAAQS for which it had been 

redesignated to attainment with an approved maintenance plan. Waiving the requirements 

of a second 10-year maintenance plan as described in CAA section 175A(b) without 

support is arbitrary and undermines the protections of the Act.

Response: The EPA recognizes that the approved 175A maintenance plan for the 

1997 ozone NAAQS can only be modified via a section 110(l) and, where appropriate, a 

section 193 showing. These analyses would have to demonstrate that any revisions to the 

maintenance plan would not interfere with the ability to demonstrate timely attainment 

for the new standard. The removal of the requirement for the second 10-year plan for 

maintenance of a revoked, less stringent standard that the areas previously attained allows 

states to focus planning and control efforts on attaining and maintaining the more 

stringent and currently applicable 2008 ozone NAAQS in these areas, for the already

attained 1997 ozone NAAQS. The areas will remain subject to the MVEBs established in 

the approved 175A maintenance plan until such time that MVEBs for the more stringent 

2008 ozone NAAQS are submitted and are found adequate or are approved, which must 

be used for transportation conformity determinations under the 2008 ozone NAAQS 

pursuant to the conformity regulations.

4. 2008 Nonattainment Areas Also Designated Nonattainment for a Prior Revoked Ozone 

NAAQS 

a. Summary of the Proposal
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 157 of 223

The EPA proposed that areas designated nonattainment for the 2008 ozone 

NAAQS and also designated nonattainment for the 1997 ozone NAAQS as of the 

revocation of the 1997 NAAQS89 will be subject to applicable anti-backsliding 

requirements for the applicable prior NAAQS as set forth in 51.1100(o), 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 anti-backsliding checks in CAA sections 110(l) and 193.

b. Final Action

The EPA is finalizing this as proposed. In 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 the state will be obligated to implement the 

applicable requirements set forth in 51.1100(o) for the 1997 ozone NAAQS. This could 

include, as applicable, anti-backsliding requirements associated with the revoked 1-hour 

NAAQS if the area was also designated nonattainment for the 1-hour ozone NAAQS 

when that NAAQS was revoked. Nonattainment NSR applies in these areas in 

accordance with their highest nonattainment classification under any ozone standard for 

which they are (or were at the time of revocation) designated nonattainment. Also, if 

 

89 We do not include in these 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-hour ozone NAAQS at time of 

revocation of the 1-hour NAAQS had to meet applicable 1-hour ozone NAAQS antibacksliding requirements in order to be redesignated to attainment for the 1997 ozone 

NAAQS.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 158 of 223

these areas are classified Severe or Extreme at the time of revocation for a prior standard, 

the requirements of section 185 in relation to that prior standard continue to apply.

c. Rationale

The EPA believes that the application of anti-backsliding principles is very clear 

cut for this category of areas. These areas remain subject to the applicable requirements 

for the 2008 ozone NAAQS, as well as for any of the revoked ozone NAAQS for which 

the areas remained nonattainment, until the requirements are satisfied or suspended as 

detailed in sections IV.D and IV.E. The EPA received no adverse comments on this 

approach.

D. Satisfaction of Anti-backsliding Requirements for an Area

1. Summary of the Proposal

The EPA proposed two acceptable procedures through which a state may

demonstrate that it is no longer required to adopt any additional applicable requirements 

for an area which have not already been approved into the SIP for a revoked ozone 

NAAQS. Both procedures allow a state to remove or revise the nonattainment NSR 

provisions in the SIP and, upon a showing of consistency with the anti-backsliding 

checks in CAA sections 110(l) and 193 (if applicable), shift requirements which are 

contained in the active portion of the SIP to the contingency measures portion of the 

SIP.

90

 

90 Nonattainment NSR is not required to be retained in the SIP as a contingency measure. 

In areas designated attainment, the PSD permitting program applies rather than 

nonattainment NSR. Replacement or removal of an area’s NSR SIP provisions does not 

relieve sources in the area of their obligations under previously established permit 

conditions.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 159 of 223

The first of the proposed procedures is formal redesignation of the area to 

attainment for the 2008 ozone NAAQS. For areas subject to anti-backsliding 

requirements for revoked standards, approval of a request for 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 is an extension of the 

approach that the EPA adopted in the Phase 1 Rule. The EPA proposed 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 nonattainment NSR requirements be removed from the SIP rather than be 

retained as a maintenance plan contingency measure.91 The state would instead 

implement the PSD program.

The second of the proposed procedures for satisfying anti-backsliding 

requirements was a new separate route referred to as a “redesignation substitute” for a 

revoked standard. This redesignation substitute showing would serve as a successor to 

redesignation to attainment, for which the area would have been eligible were it not for 

revocation. The showing is based on the CAA’s criteria for redesignation to attainment 

[CAA section 107(d)(3)(E)]. States would have to demonstrate that the area has attained 

the relevant standard and met all of the requirements for redesignation. After notice-andcomment rulemaking on this showing, the EPA approval of the showing would have the 

same effect on the area’s nonattainment anti-backsliding obligations as would a 

redesignation to attainment for the revoked standard. The EPA did not propose to require 

 

91 States in the OTR may not use this flexibility because the CAA requires all areas of the 

OTR including attainment areas to implement, at a minimum, the nonattainment NSR 

requirements prescribed for Moderate areas. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 160 of 223

states to go through formal SIP submission procedures to submit a request for approval of 

a redesignation substitute because it is not a redesignation. The EPA proposed that such 

an area would no longer be subject to any remaining applicable anti-backsliding 

requirements and the nonattainment NSR requirements associated with the revoked 

NAAQS for which the area completed a redesignation substitute would be lifted, leaving 

the remaining NSR requirements to be determined by the highest remaining classification 

the area is subject to, whether for the 2008 ozone NAAQS or another revoked NAAQS

for which the EPA had not approved a redesignation showing. 

2. Final Action

The EPA is finalizing both routes as acceptable ways to address anti-backsliding 

requirements. That is, states can choose either to submit a request to redesignate to 

attainment for the most current NAAQS with an approved 175A maintenance plan that 

addresses the current and revoked NAAQS, or to submit a redesignation substitute

request for a revoked NAAQS. Under both of the these 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(l), that such revision would not interfere with 

attainment or maintenance of any applicable NAAQS, or any other requirement of the 

CAA.92

3. Rationale

The first of the procedures, formal redesignation of the area to attainment for the 

2008 ozone NAAQS, is an extension of the approach that the EPA adopted in the Phase 1 

 

92 Likewise, to the extent that 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.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 161 of 223

Rule. Redesignation to attainment for the 2008 ozone NAAQS would allow a state to 

terminate and remove from the active portion of its SIP any applicable anti-backsliding 

requirements, including nonattainment NSR requirements associated with its 

classifications under the 2008 ozone NAAQS, or under the 1997 or 1-hour ozone 

NAAQS, except for areas in the OTR. The area would instead need, at a minimum, to 

implement the PSD program. This approach is consistent with the EPA’s longstanding 

interpretation of nonattainment NSR requirements for areas that are redesignated to 

attainment.93 Redesignation to attainment would also terminate any obligations to 

implement section 185 fee programs in 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.

Approval of a redesignation to attainment for the 2008 ozone NAAQS signifies 

that the state has satisfied its obligations to adopt anti-backsliding requirements for the 

current and revoked standards for that area. This same approach was used in the Phase 1 

Rule in requiring redesignations for the 1997 ozone NAAQS to address anti-backsliding 

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 will have satisfied its obligations to 

adopt anti-backsliding requirements. All of the anti-backsliding measures that have been 

 

93 See 40 CFR 51.905(a)(3), the comparable provision for transition from the 1-hour 

NAAQS to the 1997 ozone NAAQS, which allows states with such areas to request that 

the 1-hour nonattainment NSR provisions be removed from the SIP.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 162 of 223

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.94

Experience has shown the EPA that a second mechanism for areas to address the 

requirements imposed by anti-backsliding requirements is also appropriate. After 

revocation of the 1997 ozone NAAQS, areas that attain and meet requirements for the 

revoked 1997 or 1-hour ozone NAAQS would be disadvantaged relative to areas that 

were redesignated to attainment for those standards prior to their revocation. Absent this 

second mechanism, areas that would otherwise have qualified for redesignation to 

attainment for the 1997 or 1-hour ozone NAAQS, were it not for revocation of those 

NAAQS, would need to continue implementing potentially outdated and onerous 

requirements for a NAAQS they have attained 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 imposing 

requirements greater than those that would apply if the standard had not been revoked. 

The EPA has no mechanism for formally redesignating areas for a revoked 

standard. However, by establishing the redesignation substitute, the EPA is providing a 

pathway for states to demonstrate and for the EPA to acknowledge that they have 

satisfied the 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 

 

94 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, antibacksliding requirements contained in the SIP could be shifted to the contingency

measures portion of a section 175A maintenance plan, or, in limited circumstances(such 

as nonattainment NSR) removed from the SIP.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 163 of 223

revoked standard, and ensures that the substance of the redesignation requirements are 

met. For a revoked standard, this second mechanism will serve as a successor to 

redesignation to attainment, for which the area would have been eligible were it not for 

revocation. 

The EPA believes this is an acceptable approach because it is based on the CAA’s 

criteria for redesignation to attainment [CAA section 107(d)(3)(E)]. A showing 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. The EPA will 

conduct notice-and-comment rulemaking on the state’s showings. We believe a noticeand-comment process fulfills the function of redesignation to attainment for the purpose 

of satisfying anti-backsliding requirements for a revoked standard. 

The EPA believes that requiring more elaborate administrative procedures for 

purposes of approving a state's request for a redesignation substitute for a revoked 

NAAQS (for example, requiring states to use the formal SIP adoption process) would 

needlessly impose burdens because the area will remain subject to all the formal 

requirements for redesignation to attainment for the 2008 ozone NAAQS. Development 

of SIP revisions takes time and imposes administrative costs on states, industry and the 

public. As in the case of a redesignation to attainment for the 2008 ozone NAAQS, at the 

time of submitting a redesignation substitute request or at any time thereafter, a state may 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 164 of 223

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(l). The EPA is not providing this mechanism for 

the purpose of allowing states to relax or avoid air quality management measures that are 

needed for attainment and maintenance of the 2008 ozone NAAQS. The showings 

required, the provisions of section 110(l), and the fact that the area remains subject to 

CAA requirements for the more stringent 2008 ozone NAAQS, assure that is not the case. 

It is, however, important to relieve states of requirements that are no longer necessary, or 

that can be replaced by other forms of protection that might better meet the local needs 

and circumstances of an area. 

The EPA is providing in the redesignation substitute option a mechanism that 

demands more than a determination of attainment of the prior NAAQS, and calls for a 

showing that addresses redesignation criteria for that NAAQS. Moreover, the process 

under this option occurs while the state remains subject to ongoing requirements to meet 

the new more stringent standard in that area. In this context, this final action is clearly 

sufficient for its limited anti-backsliding purpose—it recognizes and supports the state’s 

progress in having attained the prior standard in that area due to permanent and 

enforceable emissions reductions, and reinforces continued attainment by calling for a 

demonstration that the area can maintain the revoked standard. 

4. Comments and Responses
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 165 of 223

Comment: Several commenters requested that the EPA preserve the statutory

mechanism as described in 42 U.S.C 7407(d)(3) that would allow the EPA to redesignate 

areas for a revoked NAAQS.

Response: After the revocation of a standard, the EPA believes that it can no 

longer take action to reclassify or to redesignate areas for that standard. Revocation of the 

standard removes both classifications and designations for the revoked standard. The 

EPA believes the two mechanisms provided in the final rule accomplish the goals of 42 

U.S.C 7407(d)(3) [CAA section 107(d)(3)] in a manner consistent with anti-backsliding 

principles and appropriate for the circumstance where a more stringent NAAQS with the 

same form and averaging time exists and is being actively implemented.

Comment: A commenter argued that redesignation to attainment for the 2008 

ozone NAAQS is not sufficient to turn off anti-backsliding obligations triggered under 

the revoked 1-hour or the 1997 ozone NAAQS.

Response: The EPA disagrees with the commenter. When the EPA approves a 

redesignation request for the current 2008 ozone NAAQS, we assess whether the area is 

in attainment for the current and previous NAAQS. The maintenance plan submitted by

the state demonstrates that the area being considered for redesignation will continue for 

the next 10 years to attain the standard that is requisite to protect public health, and that 

attainment is due to permanent and enforceable emissions reductions. A redesignation to 

attainment signifies that the area has met the requirements of the 2008, as well as any 

revoked, NAAQS. CAA section 185 specifically indicates redesignation “as an 

attainment area for ozone” as a basis for terminating fee requirements. Also, 

redesignation to attainment historically has terminated nonattainment NSR requirements, 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 166 of 223

which are not required to be kept in the SIP as contingency measures. See Greenbaum v. 

EPA (370 F.3d at 536). Moreover, redesignation for the current standard was the 

unchallenged basis for demonstrating satisfaction of anti-backsliding requirements in the 

EPA’s previous Phase 1 anti-backsliding regime (69 FR 23951). We believe the 

application of the same principle when transitioning from the 1997 to the 2008 ozone 

NAAQS is an even better fit: it is impossible to attain the 2008 ozone NAAQS without 

first achieving air quality that would attain the 1997 ozone NAAQS due to the identical 

form of the two standards.

Comment: A number of commenters supported the concept of the redesignation 

substitute, but requested that a more streamlined process be developed. Several 

commenters suggested that a clean data determination would be sufficient to terminate 

anti-backsliding requirements for a revoked NAAQS.

Response: The EPA recognizes that a clean data determination alone is less 

burdensome for states than a section 107(d)(3) redesignation or a redesignation substitute.

A clean data determination only suspends planning requirements associated with the 

NAAQS for which the determination was granted. However, we believe that the

redesignation and redesignation substitute mechanisms represent the minimum set of 

requirements sufficient to demonstrate satisfaction of anti-backsliding requirements under 

the EPA’s application of the principles of section 172(e). These mechanisms provide a 

way for states to demonstrate that they have attained these standards, they have met all 

the requirements for redesignations, and no longer need any anti-backsliding 

requirements beyond those already approved in their SIPs.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 167 of 223

Comment: Two commenters asked the EPA to reconsider the use of CAA section 

172(e). One of these commenters asked that the use of 172(e) be applied to all applicable 

requirements required of areas subject to anti-backsliding allowing them to substitute 

measures at least as stringent as the controls listed. The other commenter believed no 

application of 172(e) is justified, even to section 185 fees where the EPA has historically

applied this principle.

Response: 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 that are “not less stringent” than the controls applicable in 

nonattainment areas prior to any such relaxation. The EPA applied these principles in 

developing previous guidance on satisfying the anti-backsliding approach for CAA 

section 185 requirements. As stated in previous EPA guidance, we interpret the principles 

of 172(e) as authorizing, but not requiring, the Administrator to approve on a case-bycase basis “not less stringent” alternatives to the applicable section 185 fee program 

requirements associated with a revoked ozone NAAQS.95 The NRDC challenged this 

guidance in 2010. 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.” See NRDC v. EPA, 643 

F.3d 332 (D.C. Cir. July 2011). We believe the application of section 172(e) principles to 

applicable section 185 anti-backsliding requirements is an appropriate and reasonable use 

of the Administrator’s discretion to approve “not less stringent” controls. However, we 

 

95 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.”
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 168 of 223

did not propose and do not intend at this time to promulgate regulatory language to apply 

principles of section 172(e) to other anti-backsliding requirements.

E. How will the EPA’s determination of attainment (“Clean Data”) regulation apply for 

purposes of the anti-backsliding requirements?

1. Summary of the Proposal

The EPA proposed to apply the same approach with respect to determinations of 

attainment for the 2008 ozone NAAQS as applied under the 1997 ozone NAAQS under 

40 CFR 51.918. Under 40 CFR 51.918, an EPA determination that an area attained the 

1997 ozone NAAQS suspended the obligation to submit any attainment-related SIP 

planning elements for the 1997 ozone NAAQS not yet approved in the SIP, for so long as 

the area continued to be in attainment of that NAAQS.96 In order to reflect the ongoing 

status of the Clean Data Policy and to consolidate in one regulation a comprehensive 

provision applicable to determinations of attainment for all current and former ozone 

NAAQS, the EPA proposed to replace 40 CFR 51.918 with proposed 40 CFR 51.1118 

after revocation of the 1997 ozone NAAQS.

2. Final Action

The EPA is finalizing its proposed approach to implementing the Clean Data 

Policy with respect to the 2008 ozone NAAQS and all prior ozone NAAQS. Under the 

EPA’s Clean Data Regulation, a determination of attainment suspends the obligation to 

 

96 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." 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 NRDC v. EPA 571 F.3d 1245 (D.C. 

2009).
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 169 of 223

submit certain attainment-related planning requirements for the associated NAAQS for an

area as long as the area continues to attain that standard.97 For those areas that have 

already incorporated measures into their approved SIPs that satisfy the nonattainment 

requirements for that standard, section 110(l) functions as an anti-backsliding check to 

require continued implementation of such measures unless revised in accordance with its 

provisions.

The planning elements that may be suspended under section 51.1118 are 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 expressly linked by the statute itself to an attainment plan; therefore 

suspension of the obligation to submit the attainment plan also necessarily suspends the 

obligation to submit the fee program which is part of the attainment plan (provided that 

the EPA has not already determined that the area failed to attain by its attainment 

deadline and thus triggered the obligation to implement a fee program). The EPA notes 

that a determination of attainment would not, however, suspend obligations to submit 

non-planning requirements such as nonattainment NSR, subpart 2 RACT or emission 

inventories under section 182(a)(1).

3. Rationale

 

97 Depending on the area’s classification for the 1997 ozone NAAQS and the SIP 

elements already approved, the area may still have outstanding non-planning 1997 antibacksliding submission requirements that are not suspended by 51.918 (e.g., emissions 

inventories, nonattainment NSR, Subpart 2 RACT requirements). 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 170 of 223

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. With the finalization of 51.1118, 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, is 

embodied in a regulation applicable for the purpose of all existing and prior ozone 

NAAQS. The EPA believes that continuation of this approach makes the most sense for

implementing the 2008 ozone NAAQS.

4. Comments and Responses

Comment: Two commenters indicated that a determination that an area has “clean 

data” for the more-stringent 2008 ozone NAAQS should be sufficient to lift antibacksliding requirements for the 1997 and the 1-hour ozone NAAQS.

Response: A clean data determination only suspends specific planning 

requirements, not mandatory control requirements, which could include, as applicable, 

anti-backsliding requirements associated with revoked NAAQS. As explained previously, 

the EPA believes that an approved redesignation to attainment or a redesignation 

substitute is necessary to lift anti-backsliding requirements. Section 51.1118 clarifies that 

a clean data determination for a specific standard only affects attainment-related planning 

requirements for that standard.

Comment: A commenter requested that the EPA clarify language in the proposed 

section 51.1118 to indicate more specifically which NAAQS must be attained to suspend 

planning requirements. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 171 of 223

Response: The EPA will revise the language in 51.1118 to make it clear that a

clean data determination for the 2008 NAAQS acts to suspend planning requirements 

associated with the 2008 and less stringent 1997 ozone NAAQS, which have an identical 

form. 

F. What is the relationship between implementation of the 2008 ozone NAAQS and the 

CAA title V permits program?

1. Summary of the Proposal

We proposed, and solicited comment on, two alternative approaches for 

implementing the title V permit program for sources in areas designated nonattainment 

for the 2008 ozone NAAQS and subject to anti-backsliding requirements for a prior 

ozone NAAQS. The EPA co-proposed 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. The 

EPA specifically solicited 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.

2. Final Action

We are finalizing the first option and the associated proposed revisions to parts 70 

and 71. Following revocation of the 1997 ozone NAAQS, major source thresholds for 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 172 of 223

title V will be the same as the major source98 thresholds applicable for purposes of other 

requirements, such as RACT and NSR (i.e., the major source threshold associated with 

the more stringent of the area’s classification for the 2008, 1997 and/or 1-hour ozone 

NAAQS will be the applicable threshold for title V purposes, to the extent that antibacksliding requirements for the 1997 and/or 1-hour ozone NAAQS apply in the area).

99

3. Rationale

The EPA received a wide range of comments on the question of whether the 

major source thresholds for title V permitting should be considered a “control” for 

purposes of the anti-backsliding requirements of section 172(e). The EPA recognizes that 

many of these comments raise valid perspectives. It is true that title V generally does not 

impose new substantive pollution control requirements on sources, and thus ordinarily the 

EPA would not describe title V permitting itself as a “control.” At the same time, the 

 

98 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 I. (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.) See CAA section 501(2)(B) and 502(a); 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.

99 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. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 173 of 223

EPA does believe that one of the underlying purposes of title V is to assure compliance 

with the pollution control requirements applicable to a source. Thus, it may well be true 

that title V provides air quality benefits, and should be considered a “control” under the 

broad, functional analysis used by the court in the South Coast v. EPA decision. The EPA 

believes it is unnecessary to resolve this precise question at this time, because the EPA 

believes that regardless of whether title V should be considered a “control” for purposes 

of section 172(e), it fulfils the purposes and requirements of the Act for title V permitting 

thresholds to be the same as the permitting thresholds for underlying applicable 

requirements, particularly NSR which was considered a control by the South Coast court. 

Title V and NSR have long shared a common approach to the definition of major 

source.100,101 The EPA concurs with the commenters, such as Texas and New York, who 

believe that we should maintain clarity and uniformity in major source threshold 

determinations for both NSR and title V. 

In addition, the EPA notes that, under CAA section 502, sources are required to 

operate in accordance with the terms of a title V permit if, inter alia, the source is a major 

source or the source is required to have a permit under part D of Title I. Thus, even if a 

source is not a major source for purposes of title V, it is still required to get a title V 

permit if it is required to have a permit under part D of title I. This provides additional 

support to the EPA’s conclusion that the major source permitting threshold for NSR and 

RACT should be the same as for title V because otherwise, a source that is not a “major 

 

100 The EPA recognizes that there are statutory and regulatory differences between title V 

and NSR, but for purposes of the discussion we are focusing on the commonalities.

101 See, e.g., Memorandum from Lydia N. Wegman, Deputy Director, Office of Air

Quality Planning and Standards, U.S. EPA, ‘‘Definition of Regulated Air Pollutant for 

Purposes of Title V’’ (April 26, 1993).
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 174 of 223

source” for purposes of title V might not understand it is still covered by the applicability 

provisions of parts 70 and 71, if it is required to have a permit under part D of title I. 

Maintaining consistency between the NSR and title V thresholds in this regard 

will promote compliance with CAA requirements by providing a simpler permitting 

regime, ensuring that sources subject to major source NSR understand they are also 

subject to title V, and enabling permitting authorities to identify sources that are 

potentially subject to major source NSR. The EPA believes a contrary approach would 

introduce not only complexity, but anomalies, into the permitting program that would be 

contrary to the purposes and requirements of the Act. As noted by commenters option 1 is 

supported by the fact that these thresholds emanate from the same provisions of the CAA 

(part D of title I), therefore, the intent of the CAA was presumably to keep the thresholds 

the same. To promote effective program implementation and ensure consistency with the 

CAA, this final rule will amend the relevant provisions of parts 70 and 71 related to 

application of title V thresholds.

4. Comments and Responses

Comment: Several commenters supported the first option, which sets major 

source title V thresholds equal to those applied for RACT and NSR. One of these 

commenters supported the first option with the minor conforming amendments to the 

definition of major source in 40 CFR 70.2 and 71.2 as detailed on page 34225 of the 

proposal. Commenters stated that this approach would provide applicants with clarity and 

uniformity regarding applicable major source thresholds, and that this approach maintains 

the consistency which will ultimately simplify permitting and enforcement. A commenter 

indicated that option 1 is supported by the fact that these thresholds emanate from the 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 175 of 223

same provisions of the CAA (part D of title I), therefore, the intent of the CAA was to 

keep the thresholds the same. Several commenters noted that the first approach is 

consistent with past precedent and compelled by the Act’s anti-backsliding requirements 

as well as court precedent.

Response: As discussed previously, the EPA agrees with these commenters that 

the major source threshold for title V should be the same as the major source threshold 

for NSR and RACT, and the EPA is finalizing the proposed revisions to parts 70 and 71 

to make that clear.

Comment: Several commenters supported the second approach, in which the 

major source thresholds for title V permitting are based solely on an area's classification 

for the 2008 ozone NAAQS. Commenters cited a number of reasons for this, including: 

this approach would provide relief to small operators, and that this approach makes good 

sense in a time of resource constraints. Several commenters questioned the utility of 

setting title V levels based on a revoked NAAQS. Several commenters also commented 

that EPA’s understanding of the impacts of the South Coast v. EPA decision is not 

correct. These commenters agreed that the classifications of revoked NAAQS can impact 

the NSR level, but disagreed with the EPA that the title V levels are controlled by

anything other than the current 2008 ozone NAAQS.

Response: The EPA recognizes that the approach being adopted does not solely

rely on the area’s current classification for purposes of determining major source 

thresholds for title V. However, even assuming section 172(e) does not directly make title 

V a “control” for purposes of anti-backsliding, the EPA believes there is ambiguity in the 

intersection between title V and part D as to whether title V should apply the major 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 176 of 223

source threshold of the area’s current classification, or the area’s classification for 

purposes of NSR and other underlying applicable requirements, when that threshold 

would be lower. As discussed previously, the EPA believes that it is appropriate under 

the CAA, and consistent with the EPA’s longstanding approach to these programs, for a 

source which is considered to be “major” for purposes of NSR to also be considered 

“major” for purposes of title V. For the reasons stated previously, the EPA believes 

maintaining consistency in the major source applicability of the two programs is the best 

approach to promote consistency and compliance with the purposes and requirements of 

the CAA. Additional information can be found in the Response to Comments document.

Comment: The EPA received a wide range of comments on the question of 

whether the major source thresholds for title V permitting should be considered a 

“control” for purposes of the anti-backsliding requirements of section 172(e). Several

commenters believed that title V should be considered as a control within the meaning of 

section 172(e). One commenter stated that title V permits represent “controls” for 

purposes of the Act’s anti-backsliding requirements and, as such, the EPA should abide 

by South Coast v. EPA and use the same major source thresholds for administering the 

title V permit program as the agency proposes to for the NSR and RACT programs. The 

commenter stated that title V permits serve as independently enforceable compliance 

assurance mechanisms that constrain emissions by sources and accordingly should be 

seen as control measures. Since title V permits collect multiple control requirements in 

one document, there is no reason for the agency to depart from South Coast v. EPA and 

treat title V permitting classifications differently than, for example, NSR permitting.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 177 of 223

A number of commenters stated that the title V program is not a control in and of 

itself. One commenter stated that the EPA has consistently stated that title V is a separate 

program when compared to the requirements of title I. Several commenters stated that the 

history of title V rulemaking is clear on this point, indicating that the EPA has stated 

repeatedly that no substantive controls are imposed simply by having a title V permit. 

Title V should not be considered a “control” in light of the fact that title V is not intended 

to impose new substantive air quality control requirements but is instead intended to 

assure compliance with all existing applicable requirements.

Response: The EPA recognizes that both sets of comments raise valid 

perspectives. It is true that title V generally does not impose new substantive pollution 

control requirements on sources, and thus ordinarily the EPA would not describe title V 

permitting itself as a “control.” At the same time, the EPA does believe that one of the 

underlying purposes of title V is to improve compliance with the pollution control 

requirements applicable to a source, and thus it may well be true that title V provides air 

quality benefits, and should be considered a “control” under the broad, functional 

analysis used by the court in the South Coast v. EPA decision. The EPA believes it is 

unnecessary to resolve this precise question at this time, because the EPA believes that 

regardless of whether title V should be considered a “control” for purposes of section 

172(e), it fulfills the purposes and requirements of the CAA for title V permitting 

thresholds to be the same as the permitting thresholds for underlying applicable 

requirements, particularly NSR. Thus, the EPA is taking final action adopting the 

interpretation that major source definitions should be the same for both programs.

V. Statutory and Executive Order Reviews 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 178 of 223

A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: 

Improving Regulation and Regulatory Review

This action is a significant regulatory action that was submitted to the Office of 

Management and Budget (OMB) for review. This action raises novel policy issues. Any

changes made in response to OMB recommendations have been documented in the 

docket. 

B. Paperwork Reduction Act (PRA)

The information collection activities in this final rule have been submitted for 

approval to the Office of Management and Budget under the PRA. The Information 

Collection Request (ICR) document that the EPA prepared has been assigned the EPA 

ICR number 2347.01 and OMB Reference number 201306-2060-003. You can find a 

copy of the ICR in the docket for this rule, and it is briefly summarized here. The 

information collection requirements are not enforceable until OMB approves them.

The EPA is finalizing 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 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 nonattainment areas, 102 some of 

which must prepare an attainment demonstration as well as submit an RFP and RACT 

SIP. The attainment demonstration requirement would appear in 40 CFR 51.1108 which 

implements CAA subsections 172(c)(1), 182(b)(1)(A) and 182(c)(2)(B). The RFP SIP 

 

102 May 21, 2012, 77 FR 30088.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 179 of 223

submission requirement would appear in 40 CFR 51.1110, and the RACT SIP submission 

requirement would appear in 40 CFR 51.1112, which implements CAA subsections 

172(c)(1) 182(b)(2),(c),(d) and (e). 

States should already have information from many 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 air agency respondents, including the District of Columbia. The 

Information Collection Request Supporting Statement for the 2008 8-hour Ozone 

National Ambient Air Quality Standard Implementation Rule EPA ICR # 2347.02 in the 

docket provides the details for the 26 state air agencies that are required to provide the 58 

SIP revisions for the 46 areas designated nonattainment for the 2008 ozone standard. The 

average annual reporting burden is 690 hours per response, with approximately 2 

responses per state for 58 state responses from the state air agencies. There are no capital 

or operating and maintenance costs associated with the proposed rule requirements. 

Burden is defined at 5 CFR 1320.3(b).
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 180 of 223

Respondents/affected entities: States with 46 nonattainment areas

Respondent’s obligation to respond: mandatory (Clean Air Act, sections 172 and 182)

Estimated number of respondents: 26 state respondents

Frequency of response: Once

Total estimated burden: 40,000 hours (per year). Burden is defined at 5 CFR 1320.3(b).

Total estimated cost: $2.4 million (per year), includes $0 annualized capital or operation 

& maintenance costs. 

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.

When OMB approves this ICR, the Agency will announce that approval in the Federal 

Register and publish a technical amendment to 40 CFR part 9 to display the OMB control 

number for the approved information collection activities contained in this final rule.

C. Regulatory Flexibility Act (RFA)

I certify that this action will not have a significant economic impact on a 

substantial number of small entities under the RFA. This action will not impose any

requirements on small entities. Entities potentially affected directly by this rule 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 how a SIP will provide for adequate attainment and 

maintenance of the NAAQS and meet the obligations of the CAA. Although some states
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 181 of 223

may ultimately decide to impose economic impacts on small entities, that is not required 

by this rule and would only occur at the discretion of the state.

D. Unfunded Mandates Reform Act (UMRA)

This action does not contain any unfunded mandate as described in UMRA, 2 

U.S.C. 1531–1538, and does not significantly or uniquely affect small governments. The 

action implements mandates specifically and explicitly set forth in [the Clean Air Act

without the exercise of any policy discretion by the EPA.

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.

F. Executive Order 13175: Consultation and Coordination with Indian Tribal 

Governments

This action does not have tribal implications as specified in Executive Order 

13175. It would not have a substantial direct effect on one or more Indian tribes, since no 

tribe has to develop a TIP under these regulatory revisions. Furthermore, these regulation 

revisions do not affect the relationship or distribution of power and responsibilities 

between the federal government and Indian tribes. The CAA and the Tribal Air Rule 

establish the relationship of the federal government and tribes in developing plans to 

attain the NAAQS, and these revisions to the regulations do nothing to modify that 

relationship. Thus, Executive Order 13175 does not apply to this action. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 182 of 223

Although Executive Order 13175 does not apply to this action, the EPA met with 

tribal officials in developing the proposal. Meeting summaries are contained in the docket 

for this rulemaking.

G. Executive Order 13045: Protection of Children from Environmental Health and Safety 

Risks

The EPA interprets Executive Order 13045 as applying only to those regulatory

actions that concern environmental health or safety risks that the EPA has reason to 

believe may disproportionately affect children, per the definition of “covered regulatory

action” in section 2-202 of the Executive Order. This action is not subject to Executive 

Order 13045 because it does not concern an environmental health risk or safety risk.

H. Executive Order 13211: Actions Concerning Regulations That Significantly Affect 

Energy Supply, Distribution or Use

This action is not subject to Executive Order 13211, because it is not a significant 

regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act (NTTA)

This rulemaking does not involve technical standards.

J. Executive Order 12898: Federal Actions to Address Environmental Justice in Minority 

Populations and Low-Income Populations

The EPA believes the human health or environmental risk addressed by this 

action will not have potential disproportionately high and adverse human health or 

environmental effects on minority, low-income or indigenous populations because it does 

not affect the level of protection provided to human health or the environment. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 183 of 223

The final revisions to the regulations address 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. The EPA encourages states to consider any potential impacts on 

these populations in developing SIPs to attain the NAAQS.

K. Congressional Review Act (CRA)

This action is subject to the CRA, and the EPA will submit a rule report to each House of 

the Congress and to the Comptroller General of the United States. This action is not a 

“major rule” as defined by 5 U.S.C. 804(2).L. Determination under Section 307(d)

Pursuant to CAA section 307(d)(1)(V), the Administrator determines that this 

action is subject to the provisions of section 307(d). Section 307(d) establishes procedural 

requirements specific to rulemaking under the CAA. Section 307(d)(1)(V) provides that 

the provisions of section 307(d) apply to “such other actions as the Administrator may 

determine.” 

M. Judicial Review

Section 307(b)(1) of the CAA indicates which Federal Courts of Appeal have 

venue for petitions of review of final agency actions by the EPA under the CAA. This 

section provides, in part, that petitions for review must be filed in the U.S. Court of 

Appeals for the District of Columbia Circuit (i) when the agency action consists of 

“nationally applicable regulations promulgated, or final actions taken, by the 

Administrator” or (ii) when such action is locally or regionally applicable, if “such action 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 184 of 223

is based on a determination of nationwide scope or effect and if in taking such action the 

Administrator finds and publishes that such action is based on such a determination.”

This rule implementing the 2008 ozone NAAQS is “nationally applicable” within 

the meaning of section 307(b)(1). First, the rulemaking addresses a NAAQS that applies 

to all states and territories in the U.S. Second, the rulemaking addresses issues relevant to 

specific existing SIP provisions in states across the U.S. that are located in each of the 10 

EPA Regions, numerous federal circuits and multiple time zones. Third, the rulemaking 

addresses a common core of knowledge and analysis involved in formulating the decision 

and a common interpretation of the requirements of the CAA being applied to SIPs in 

states across the country. Fourth, the rulemaking, by addressing issues relevant to 

appropriate SIP provisions in one state, may have precedential impacts upon the SIPs of 

other states nationwide. Courts have found similar rulemaking actions to be of 

nationwide scope and effect.103

Under section 307(b)(1) of the Act, petitions for judicial review of this action 

must be filed in the United States Court of Appeals for the District of Columbia Circuit 

by [INSERT DATE 60 DAYS AFTER DATE OF PUBLICATION IN THE 

FEDERAL REGISTER]. Any such judicial review is limited to only those objections 

that are raised with reasonable specificity in timely comments. Filing a petition for 

reconsideration by the Administrator of this final rule does not affect the finality of this 

rule for the purposes of judicial review nor does it extend the time within which a petition 

 

103 See, e.g., State of Texas, et al. v. EPA, 2011 U.S. App. LEXIS 5654 (5th Cir. 2011) 

(finding SIP call to 13 states to be of nationwide scope and effect and thus transferring 

the case to the U.S. Court of Appeals for the D.C. Circuit in accordance with CAA 

section 307(b)(1)).
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 185 of 223

for judicial review may be filed and shall not postpone the effectiveness of such rule or 

action. Under section 307(b) (2) of the Act, the requirements of this final action may not 

be challenged later in civil or criminal proceedings brought by us to enforce these 

requirements.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 186 of 223

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

PM2.5 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
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20141006

Page 187 of 223

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
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 188 of 223

APPENDIX B TO FINAL - 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 2008 8-hour 

Ozone 

Classification

1997 8-hour 

Ozone 

Classification

1997 Ozone Attainment 

Determination

Calaveras County, CA* Marginal Moderate Attainment Deadline 

Determination

Clean Data Determination

Chico Area, CA Marginal Marginal Attainment Deadline 

Determination

Clean Data Determination

Denver-Boulder-Greeley-Ft. 

Collins-Loveland Area, CO

Marginal Marginal

Imperial County Area, CA Marginal Moderate Clean Data Determination 

Jamestown Area, NY Marginal Moderate Clean Data Determination 

**

Kern County (Eastern Kern) Area, 

CA

Marginal Moderate Attainment Deadline 

Determination

Clean Data Determination

Mariposa County, CA * Marginal Moderate Attainment Deadline 

Determination

Clean Data Determination

Nevada County (Western part) 

Area, CA

Marginal Moderate Attainment Deadline 

Determination

Clean Data Determination

Pittsburgh-Beaver Valley Area, PA Marginal Moderate Clean Data Determination 

**

Sheboygan County, WI Marginal Moderate Clean Data Determination 

St. Louis-St. Charles-Farmington, 

MO-IL *

Marginal Moderate Attainment Deadline 

Determination ***

Clean Data Determination
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 189 of 223

* 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.

** 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 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. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 190 of 223

Table 2: Areas nonattainment for the 2008, 1997, and 1-hour ozone NAAQS

2008 

Nonattainment 

Area Name

2008 

8-hour 

Ozone 

Classification

1-hour 

Ozone 

Classification

1-hour Ozone 

Attainment 

Determination

1997 8-hour

Ozone 

Classification

1997 Ozone 

Attainment 

Determination

Baltimore Area, 

MD

Moderate Severe 15 Clean Data 

Determination 

Serious

Dallas-Fort Worth 

Area, TX *

Moderate Serious Clean Data 

Determination 

Serious

Dukes County, 

MA *

Marginal Serious Clean Data 

Determination, 

Attainment 

Deadline 

Determination

Moderate Clean Data 

Determination, 

Attainment 

Deadline 

Determination

Greater 

Connecticut Area, 

CT

Marginal Serious Clean Data 

Determination 

Moderate Clean Data 

Determination,

Attainment 

Deadline

Determination

HoustonGalvestonBrazoria Area, 

TX

Marginal Severe 17 Severe 15

Los Angeles and 

San Bernardino 

Counties (W 

Mojave Desert) 

Area, CA

Severe 15 Severe 17 Severe 15

Los AngelesSouth Coast Air 

Basin Area, CA

Extreme Extreme Extreme

Morongo Areas of 

Indian Country

(Morongo Band 

of Mission 

Indians) **

Serious Severe17Severe 17

New York-N. 

New Jersey-Long 

Island Area, NY, 

NJ, CT

Marginal Severe 17 Clean Data 

Determination 

Moderate Clean Data 

Determination, 

Attainment 

Deadline

Determination
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 191 of 223

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

area boundary.

Pechanga Areas 

of Indian Country

(Pechanga Band 

of Luiseno 

Mission Indians 

of the Pechanga 

Reservation) ***

Moderate Extreme Severe 17

PhiladelphiaWilmingtonAtlantic City

Area, PA, NJ, 

MD, DE *

Marginal Severe 15 Clean Data 

Determination, 

Attainment 

Deadline 

Determination

Moderate Clean Data 

Determination, 

Attainment 

Deadline 

Determination

Riverside County

(Coachella 

Valley) Area (1-

hr Southeast 

Desert), CA

Severe 15 Severe 17 Severe 15

Sacramento Metro 

Area, CA

Severe 15 Severe 15 Clean Data 

Determination

Severe 15

San Francisco 

Bay Area, CA

Marginal Other Clean Data 

Determination, 

Attainment 

Deadline 

Determination

Marginal

San Joaquin 

Valley Area, CA

Extreme Extreme Extreme

Seaford, DE **** Marginal Marginal Clean Data 

Determination, 

Attainment 

Deadline 

Determination

Moderate Clean Data 

Determination, 

Attainment 

Deadline 

Determination

Ventura County 

(part) Area, CA

Serious Severe 15 Clean Data 

Determination, 

Attainment 

Deadline 

Determination

Serious Clean Data 

Determination

Washington Area, 

DC, MD, VA

Marginal Severe 15 Clean Data 

Determination, 

Attainment 

Deadline 

Determination

Moderate Clean Data 

Determination, 

Attainment 

Deadline 

Determination
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 192 of 223

** Part of Los Angeles-South Coast Air Basin Area, CA (South Coast) for 1997 and 1-hr 

ozone nonattainment area boundaries. The EPA published a correction of the 

classification for the 1997 ozone and 1-hr ozone NAAQS on September 23, 2013 (78 FR 

58189). 

*** Part of Los Angeles-South Coast Air Basin Area, CA (South Coast) for 1997 and 1-

hr ozone nonattainment area boundaries. The EPA published a correction of the 

classification for the 1997 ozone NAAQS on May 5, 2010 (75 FR 24409). 

  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. 
** * E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 193 of 223

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)). 

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 52

Air pollution control, Intergovernmental relations, Ozone, Particulate matter.

40 CFR Part 70

Environmental protection, Air pollution control, Intergovernmental relations,

Nitrogen oxides, Operating permits, Ozone, Particulate matter, Reporting and record 

keeping requirements, Volatile organic compounds.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 194 of 223

Page 188 of 217 - Implementation of the 2008 National Ambient Air Quality 

Standards for Ozone: State Implementation Plan Requirements

40 CFR Part 71

Environmental protection, Administrative practice and procedure, Air pollution 

control, Intergovernmental relations, Nitrogen oxides, Operating permits, Ozone, 

Particulate matter, Reporting and record keeping requirements, Volatile organic 

compounds.

__________________________________

Dated:

__________________________________

Gina McCarthy, 

Administrator.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 195 of 223

For the reasons stated in the preamble, Title 40, Chapter I of the Code of Federal 

Regulations is amended as follows: 

PART 50–NATIONAL PRIMARY AND SECONDARY AMBIENT AIR QUALITY 

STANDARDS

1. The authority citation for part 50 continues to read as follows:

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

2. In §50.10, revise paragraph (c) to read as follows: 

§50.10 National 8-hour primary and secondary ambient air quality standards for 

ozone.

* * * * * 

(c) Until the effective date of the final Implementation of the 2008 National Ambient Air 

Quality Standards for Ozone: State Implementation Plan Requirements Rule to be 

codified at 40 CFR 51.1100 et seq., 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 upon the 

effective date of the final SIP Requirements Rule. For purposes of the anti-backsliding 

requirements of 40 CFR 51.1105 and 51.1114, the area designations and classifications 

with respect to the revoked 1997 ozone NAAQS are codified in 40 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. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 196 of 223

Subpart X-Provisions for Implementation of 8-Hour Ozone National Ambient Air 

Quality Standards

4. Add §51.919 to read as follows:

§51.919 Applicability.

As of the effective date of the SIP Requirements Rule codified at 40 CFR 51.1100 et seq. 

for the 2008 ozone NAAQS, the provisions of Subpart AA shall replace the provisions of 

Subpart X, 51.900 to 51.918, which will cease to apply, with the exception of 51.907 for 

the anti-backsliding purposes of 51.1105(d)(2).

Subpart AA—Provisions for Implementation of the 2008 Ozone National Ambient 

Air Quality Standards

5. In §51.1100, add paragraphs (o) through (cc) to read as follows:

 

§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.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 197 of 223

(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).

(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 NSR major source thresholds and offset ratios.

(15) Penalty fee program requirements for Severe and Extreme Areas under CAA section 

185.

(16) Contingency measures associated with areas utilizing CAA section 182(e)(5).

(17) Reasonably available control measures (RACM) requirements under CAA section 

172(c)(1).

(p) CSAPR means the Cross State Air Pollution Rule

(q) CAIR means the Clean Air Interstate Rule codified at 40 CFR 51.123(a) through (ee). 

(r) NOx SIP Call means the rules codified at 40 CFR 51.121 and 51.122.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 198 of 223

(s) Ozone transport region (OTR) means the area established by CAA section 184(a) or 

any other area established by the Administrator pursuant to CAA section 176A for 

purposes of ozone. 

(t) Reasonable further progress (RFP) means both the emissions reductions required 

under CAA section 172(c)(2) which EPA interprets to be an average 3 percent per year 

emissions reductions of either VOC or NOx and CAA sections 182(c)(2)(B) and (c)(2)(C) 

as well as the overarching program of both the 15 percent reductions over the first six 

years of the plan and the following three percent per year average.

(u) Rate-of-progress (ROP) means the 15 percent progress reductions in VOC emissions 

over the first 6 years required under CAA section 182(b)(1).

(v) Revocation of the 1-hour NAAQS means the time at which the 1-hour NAAQS no 

longer apply to an area pursuant to 40 CFR 50.9(b).

(w) Revocation of the 1997 ozone NAAQS means the time at which the 1997 8-hour 

NAAQS no longer apply to an area pursuant to 40 CFR 50.10(c).

(x) Subpart 1 means subpart 1 of part D of title I of the CAA.

(y) Subpart 2 means subpart 2 of part D of title I of the CAA.

(z) I/M refers to the inspection and maintenance programs for in-use vehicles required 

under the 1990 Clean Air Act and defined by subpart S of 40 CFR part 51.

(aa) An area “Designated nonattainment for the 1-hour ozone NAAQS” means, for 

purposes of section 51.1105, an area that is subject to applicable 1-hour ozone NAAQS 

anti-backsliding requirements at the time of revocation of the 1997 ozone NAAQS. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 199 of 223

(bb) Base year inventory for the nonattainment area means a comprehensive, accurate, 

current inventory of actual emissions from sources of VOC and NOx emitted within the 

boundaries of the nonattainment area as required by CAA section 182(a)(1). 

(cc) Ozone season day emissions means an average day’s emissions for a typical ozone 

season work weekday. The state shall select, subject to EPA approval, the particular 

month(s) in the ozone season and the day(s) in the work week to be represented, 

considering the conditions assumed in the development of RFP plans and/or emissions 

budgets for transportation conformity.

6. Add §§51.1104 through 51.1119 to read as follows:

§51.1104 [Reserved]

§51.1105 Transition from the 1997 ozone NAAQS to the 2008 ozone NAAQS and 

anti-backsliding.

(a) Requirements that continue to apply after revocation of the 1997 ozone NAAQS.

(1) 2008 ozone NAAQS nonattainment and 1997 ozone NAAQS nonattainment. The 

following requirements apply to an area designated nonattainment for the 2008 ozone 

NAAQS and also designated nonattainment for the 1997 ozone NAAQS, or 

nonattainment for both the 1997 and 1-hour ozone NAAQS, at the time of revocation of 

the 1997 ozone NAAQS: the area remains subject to the obligation to adopt and 

implement the applicable requirements defined in §51.1100(o), for any NAAQS for 

which it was designated nonattainment at the time of revocation, in accordance with its 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 200 of 223

classification for that NAAQS at the time of that revocation, except as provided in 

paragraph (b) of this section. 

(2) 2008 ozone NAAQS nonattainment and 1997 ozone NAAQS maintenance.

For an area designated nonattainment for the 2008 ozone NAAQS that was redesignated 

to attainment for the 1997 ozone NAAQS prior to [INSERT DATE 30 DAYS FROM 

DATE PUBLICATION IN THE FEDERAL REGISTER] (hereinafter a “maintenance 

area”) the approved SIP, including the maintenance plan, can be considered to satisfy the 

applicable requirements defined in section 51.1100(o) for the revoked NAAQS. The 

measures in the approved SIP and maintenance plan shall continue to be implemented in 

accordance with the terms in the SIP. Any measures associated with applicable 

requirements that were shifted to contingency measures prior to [INSERT DATE 30 

DAYS FROM DATE PUBLICATION IN THE FEDERAL REGISTER] may remain in 

that form. After [INSERT DATE 30 DAYS FROM DATE PUBLICATION IN THE 

FEDERAL REGISTER], and to the extent consistent with any SIP for the 2008 ozone 

NAAQS and with sections 110(l) and 193, the state may request that obligations under 

the applicable requirements of section 51.1100(o) be shifted to the SIP’s list of 

maintenance plan contingency measures.

(3) 2008 ozone NAAQS attainment and 1997 ozone NAAQS nonattainment.

For 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 as of [INSERT DATE 30 DAYS FROM DATE PUBLICATION IN THE 

FEDERAL REGISTER] the area is no longer subject to nonattainment NSR and the state 

may at any time request that the nonattainment NSR provisions applicable to the area be 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 201 of 223

removed from the SIP. The state may request, consistent with CAA section 110(l) and 

193, that SIP measures adopted to satisfy other applicable requirements of §51.1100(o) 

be shifted to the SIP’s list of maintenance contingency measures. The 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). 

(4) 2008 ozone NAAQS attainment and 1997 ozone NAAQS maintenance.

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, can be considered to satisfy the applicable requirements set forth in

section 51.1100(o) through implementation of the provisions of its SIP and maintenance 

plan. After [INSERT DATE 30 DAYS FROM DATE PUBLICATION IN THE 

FEDERAL REGISTER], and to the extent consistent with sections 110(l) 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. 

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 and an approved PSD SIP, the area’s approved section 

175A plan and PSD SIP shall initially be considered to satisfy the state’s obligations 

under CAA section 110(a)(1) with respect to maintenance of the 2008 ozone NAAQS.

(b) Effect of Redesignation or Redesignation Substitute.

(1) A state remains subject to the anti-backsliding obligations for a revoked NAAQS 

under paragraphs (a)(1) and (a)(2) of this section until either (1) EPA approves a 

redesignation to attainment for the area for the 2008 ozone NAAQS; or (2) EPA approves 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 202 of 223

a state’s showing for the area in a redesignation substitute procedure for a revoked 

NAAQS. Under this redesignation substitute procedure for a revoked NAAQS, and for 

this limited anti-backsliding purpose, the state must show that the area has attained that 

revoked NAAQS due to permanent and enforceable emission reductions, and 

demonstrate that the area will maintain that NAAQS for 10 years from the date of EPA’s 

approval of this showing. 

(2) If EPA, after notice-and-comment rulemaking, approves a redesignation the state may

request that provisions for nonattainment NSR be removed from the SIP, and that other 

anti-backsliding obligations be shifted to contingency measures provided that such action 

is consistent with CAA sections 110(l) and 193. 

(3) If EPA, after notice and comment rulemaking, approves 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 NAAQS to contingency measures 

provided that such action is consistent with CAA sections 110(l) and 193.

(c) Portions of an area designated nonattainment or attainment for the 2008 ozone 

NAAQS that remain subject to the obligations identified in paragraph (a) of this section.

Only that portion of the designated nonattainment or attainment area for the 2008 ozone 

NAAQS that was required to adopt the applicable requirements in §51.1100(o) for 

purposes of the 1-hour or 1997 ozone NAAQS is subject to the obligations identified in 

paragraph (a) of this section. 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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 203 of 223

2008 ozone NAAQS may be redesignated to attainment prior to the effective date of 

revocation of that ozone NAAQS.

(d) Obligations under the 1997 ozone NAAQS that no longer apply after revocation of 

the 1997 ozone NAAQS.

(1) Second 10-year Maintenance plans. As of [INSERT DATE 30 DAYS FROM DATE 

PUBLICATION IN THE FEDERAL REGISTER], an area with an approved 1997 ozone 

NAAQS maintenance plan under CAA section 175A is not required to submit a second 

10-year maintenance plan for the 1997 ozone NAAQS 8 years after approval of the initial 

1997 ozone NAAQS maintenance plan. 

(2) Determinations of failure to attain the 1997 and/or 1-hour NAAQS. 

(i) As of [INSERT DATE 30 DAYS FROM DATE PUBLICATION IN THE FEDERAL 

REGISTER], the EPA is no longer obligated to determine pursuant to CAA section 

181(b)(2) or section 179(c) whether an area attained the 1997 ozone NAAQS by that 

area’s attainment date for the 1997 ozone NAAQS. 

(ii) As of [INSERT DATE 30 DAYS FROM DATE PUBLICATION IN THE FEDERAL 

REGISTER], the EPA is no longer obligated to reclassify an area to a higher 

classification for the 1997 ozone NAAQS based upon a determination that the area failed 

to attain the 1997 ozone NAAQS by the area’s attainment date for the 1997 ozone 

NAAQS.

(iii) For the revoked 1-hour and 1997 ozone NAAQS, the EPA is required to determine 

whether an area attained the 1-hour or 1997 ozone NAAQS by the area’s attainment date 

solely for anti-backsliding purposes to address an applicable requirement for 

nonattainment contingency measures and section 185 fee programs. In making such a 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 204 of 223

determination, the EPA may consider and apply the provisions of CAA section 181(a)(5) 

and former section 51.907 in interpreting whether a 1-year extension of the attainment 

date is applicable under section 172(a)(2)(C) of the CAA.

(e) Continued applicability of the FIP and SIP requirements pertaining to interstate 

transport under CAA section 110(a)(2)(D)(i) and (ii) after revocation of the 1997 ozone 

NAAQS. All control requirements associated with a FIP or approved SIP in effect for an 

area as of [INSERT DATE 30 DAYS FROM DATE PUBLICATION IN THE FEDERAL 

REGISTER], such as the NOx SIP Call, the CAIR, or the CSAPR shall continue to apply

after revocation of the 1997 ozone NAAQS. Control requirements approved into the SIP 

pursuant to obligations arising from section 110(a)(2)(D)(i) and (ii), including 40 CFR 

§§51.121, 51.122, 51.123, and 51.124, may be modified by the state only if the 

requirements of §§51.121, 51.122, 51.123, and 51.124, including statewide NOx emission 

budgets continue to be in effect. Any such modification must meet the requirements of 

CAA section 110(l).

(f) New source review. An area designated nonattainment for the 2008 ozone NAAQS 

and designated nonattainment for the 1997 ozone NAAQS on [INSERT DATE 30 DAYS 

FROM DATE PUBLICATION IN THE FEDERAL REGISTER] remains subject to the 

obligation to adopt and implement the major source threshold and offset requirements for 

nonattainment NSR that apply or applied to the area pursuant to CAA sections 172(c)(5), 

173 and 182 based on the highest of: (i) the area’s classification under CAA section 

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

ozone NAAQS; (ii) the area’s classification under 40 CFR §51.903 for the 1997 ozone 

NAAQS as of the date a permit is issued or as of [INSERT DATE 30 DAYS FROM 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 205 of 223

DATE PUBLICATION IN THE FEDERAL REGISTER], 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 §51.1105(b)(ii), 

the state remains subject to the obligation to adopt and implement the major source 

threshold and offset requirements for nonattainment NSR that apply or applied to the area 

for the remaining applicable NAAQS consistent with this paragraph.

§51.1106 Redesignation to nonattainment following initial designations.

For any area that is initially designated attainment for the 2008 ozone NAAQS and that is 

subsequently redesignated to nonattainment for the 2008 ozone NAAQS, any absolute, 

fixed date applicable in connection with the requirements of this part other than an 

attainment date is extended by a period of time equal to the length of time between the 

effective date of the initial designation for the 2008 ozone NAAQS and the effective date 

of redesignation, except as otherwise provided in this subpart. The maximum attainment 

date for a redesignated area would be based on the area’s classification, consistent with 

Table 1 in §51.1103. 

§51.1107 Determining eligibility for 1-year attainment date extensions for the 2008 

ozone NAAQS under CAA section 181(a)(5).

(a) A nonattainment area will meet the requirement of CAA section 181(a)(5)(B) 

pertaining to 1-year extensions of the attainment date if:

(1) For the first 1-year extension, the area's 4th highest daily maximum 8 hour average in 

the attainment year is 0.075 ppm or less. 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 206 of 223

(2) For the second 1-year extension, the area's 4th highest daily maximum 8 hour value, 

averaged over both the original attainment year and the first extension year, is 0.075 ppm 

or less.

(b) For purposes of paragraph (a) of this section, the area’s 4th highest daily maximum 8 

hour average for a year shall be from the monitor with the highest 4th highest daily

maximum 8 hour average for that year of all the monitors that represent that area.

§51.1108 Modeling and attainment demonstration requirements. 

(a) 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(b), 

and such demonstration will be submitted no later than 36 months after the effective date 

of the area's designation for the 2008 ozone NAAQS.

(b) 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(c), and such demonstration shall be submitted no later than 48 months after 

the effective date of the area's designation for the 2008 ozone NAAQS.

(c) Attainment demonstration criteria. An attainment demonstration due pursuant to 

paragraph (a) or (b) of this section must meet the requirements of §51.112; the adequacy

of an attainment demonstration shall be demonstrated by means of a photochemical grid 

model or any other analytical method determined by the Administrator, in the 

Administrator's discretion, to be at least as effective.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 207 of 223

(d) 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 36 months after the effective 

date of 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 with an approved 1-hour or 1997 ozone NAAQS 15 

percent VOC ROP plan. An area classified as Moderate or higher that has the same 

boundaries as an area, or is entirely composed of several areas or portions of areas, for 

which EPA fully approved a 15 percent plan for the 1-hour or 1997 ozone 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;
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 208 of 223

(B) Provides for an additional emissions reduction of 3 percent per year 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 a SIP revision no later than 48 months after the effective 

date of designation providing for an average emissions reduction of 3 percent per year:

(A) For all remaining 3-year periods after the first 6-year period until the year of the 

area's attainment date; and 

(B) That 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 areas for which an approved 15 percent VOC ROP plan for the 

1-hour or 1997 ozone NAAQS exists for only a portion of the area. An area that contains 

one or more portions for which EPA fully approved a 15 percent VOC ROP 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 with a previously

approved 15 percent ROP plan and the portion of the area without such a plan, and shall 

meet the requirements of (a)(4) of this section for the entire nonattainment area.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 209 of 223

(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 ROP 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. 

(B) For the portion of the area with an approved 15 percent VOC ROP 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) ROP Requirements for areas without an approved 1-hour or 1997 ozone NAAQS 15 

percent VOC ROP plan. 

(i) For each area, 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 from 2008 to 2010 is used.

(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(a)(6) 

below, all emission reductions from SIP-approved or federally promulgated measures 

that occur after the baseline emissions inventory year are creditable for purposes of the 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 210 of 223

RFP requirements in this section, provided the reductions meet the requirements for 

creditability, including the need to be enforceable, permanent, quantifiable, and surplus.

(6) 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 creditability of 

emission control measures listed in §51.1110(a)(5), creditable emission reductions for 

percentage reduction RFP must be obtained from sources within the nonattainment area.

(7) Calculation of non-creditable emissions reductions. 

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 previous I/M programs. 

(b) 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, 

and provided that the year selected is between the years 2008 to 2012. All states 

associated with a multi-state nonattainment area must consult and agree on a single 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 211 of 223

alternative baseline year. The emissions values included in the inventory required by this 

section shall be actual ozone season day emissions as defined by 51.1100(cc).

§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 nonattainment area classified Moderate or higher, the state shall submit a 

SIP revision that meets the VOC and NOx 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 24 months 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 5th year after the effective date of designation for the 

2008 ozone NAAQS.

(b) Determination of major stationary sources for applicability of RACT provisions. 

The amount of VOC and NOx emissions 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 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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 212 of 223

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 

NAAQS.

§51.1114 New source review requirements.

The requirements for nonattainment NSR for the ozone NAAQS are located in §51.165 

of this part. For each nonattainment area, the state shall submit a nonattainment NSR plan 

or plan revision for the 2008 ozone NAAQS no later than 36 months after the effective 

date of the area's designation for the 2008 ozone NAAQS.

§51.1115 Emissions inventory requirements.

(a) For each nonattainment area, the state shall submit a base year inventory as defined by

§51.1100(bb) to meet the emissions inventory requirement of CAA section 182(a)(1). 

This inventory shall be submitted no later than 24 months after the effective date of 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 213 of 223

designation. The inventory year shall be selected consistent with the baseline year for the 

RFP plan as required by §51.1110(b).

(b) For each nonattainment area, the state shall submit a periodic emission inventory of 

emissions sources in the area to meet the requirement in CAA section 182(a)(3)(A). With 

the exception of the inventory year and timing of submittal, this inventory shall be 

consistent with the requirements of (a). Each periodic inventory shall be submitted no 

later than the end of each 3-year period after the required submission of the base year 

inventory for the nonattainment area. This requirement shall apply until the area is 

redesignated to attainment.

(c) The emissions values included in the inventories required by (a) and (b) shall be 

actual ozone season day emissions as defined by §51.1100(cc).

(d) The state shall report emissions from point sources according to the point source 

emissions thresholds of the Air Emissions Reporting Requirements (AERR), 40 CFR part 

51, subpart A.

(e) The data elements in the emissions inventory shall be consistent with the detail 

required by 40 CFR part 51, subpart A. Since only emissions within the boundaries of the 

nonattainment area shall be included as defined by §51.1100(cc), this requirement shall 

apply to the emissions inventories required in this section instead of any total county

requirements contained in 40 CFR part 51, subpart A. 

§51.1116 Requirements for an Ozone Transport Region.

(a) In general. CAA sections 176A and 184 apply for purposes of the 2008 ozone 

NAAQS.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 214 of 223

(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 all portions of the state located in an ozone transport region. 

(2) The state is required to submit the RACT revision no later than 24 months 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 5th 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 SIP planning requirements in nonattainment areas that 

have air quality data that meet an 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 relevant 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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 215 of 223

redesignated to attainment for that NAAQS or a redesignation substitute is approved as 

appropriate, 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 on [INSERT DATE 30 DAYS FROM 

DATE PUBLICATION IN THE FEDERAL REGISTER], 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 except for §51.907 for the anti-backsliding purposes of 

§51.1105(c)(2). See Subpart X §51.919.

7. In Appendix S to part 51:

a. Revise section IV.G.5.

b. Add section VII.

The revision and addition read as follows:

Appendix S to Part 51–Emission Offset Interpretative Ruling

* * * * *

G. Offset Ratios.

* * * * *

5. Interpollutant offsetting. In meeting the emissions offset requirements of 

paragraph IV.A, Condition 3 of this Ruling, the emissions offsets obtained shall be for 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 216 of 223

the same regulated NSR pollutant unless interpollutant offsetting is permitted for a 

particular pollutant as specified in this paragraph IV.G.5. 

(i) The offset requirements of paragraph IV.A, Condition 3 of this Ruling for 

emissions of the ozone precursors NOx and VOC may be satisfied by offsetting 

reductions of emissions of either of those precursors, if all other requirements for such 

offsets are also satisfied.

(ii) The offset requirements of paragraph IV.A, Condition 3 of this Ruling for 

direct PM2.5 emissions or emissions of precursors of PM2.5 may be satisfied by offsetting 

reductions of direct PM2.5 emissions or emissions of any PM2.5 precursor identified under 

paragraph II.A.31 (iii) of this Ruling if such offsets comply with an interprecursor trading 

hierarchy and ratio approved by the Administrator.

* * * * *

VII. ANTI-BACKSLIDING MEASURES FOR REVOKED OZONE NAAQS

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 

on [INSERT DATE 30 DAYS FROM DATE PUBLICATION IN THE FEDERAL 

REGISTER] remains subject to the obligation to adopt and implement the major source 

threshold and offset ratio 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 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 217 of 223

issued or as of [INSERT DATE 30 DAYS FROM DATE PUBLICATION IN THE 

FEDERAL REGISTER], whichever is earlier; and (iii) the area’s classification under 40 

CFR 51.1103 for the 2008 ozone NAAQS.

(b)(1) 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 approves a state’s showing for the area in a redesignation substitute procedure 

for a revoked NAAQS per the provisions of §51.1105(b). 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 10 years from the date of EPA’s approval of this showing. 

(2) 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 under the provisions of §51.1105(b), 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 major source threshold and offset 

ratio requirements for nonattainment new source review that apply or applied to the area 

for the remaining applicable NAAQS consistent with paragraph (a).

8. In §51.165:
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 218 of 223

a. Revise paragraph (a)(11).

b. Add paragraph (a)(12).

The revision and addition read as follows:

§51.165 Permit requirements.

(a) * * * 

(11) The plan shall require that in meeting the emissions offset requirements of paragraph 

(a)(3) of this section, the emissions offsets obtained shall be for the same regulated NSR 

pollutant unless interprecursor offsetting is permitted for a particular pollutant as 

specified in this paragraph. 

(i) The plan may allow the offset requirement in paragraph (a)(3) of this section for 

emissions of the ozone precursors NOx and VOC to be satisfied by offsetting reductions 

in emissions of either of those precursors, if all other requirements for such offsets are 

also satisfied.

(ii) The plan may allow the offset requirements in paragraph (a)(3) of this section for 

direct PM2.5 emissions or emissions of precursors of PM2.5 to be satisfied by offsetting 

reductions in direct PM2.5 emissions or emissions of any PM2.5 precursor identified under 

paragraph (a)(1)(xxxvii)(C) of this section if such offsets comply with the interprecursor 

trading hierarchy and ratio established in the approved plan for a particular nonattainment 

area.

(12) The plan shall require that in any area designated nonattainment for the 2008 ozone 

NAAQS and designated nonattainment for the 1997 ozone NAAQS on [INSERT DATE 

30 DAYS FROM DATE PUBLICATION IN THE FEDERAL REGISTER] the 

requirements of this section applicable to major stationary sources and major 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 219 of 223

modifications of ozone shall include the anti-backsliding requirements contained at 

§51.1105(f) of this chapter.

* * * * *

9. In §51.166, revise paragraph (i)(2) to read as follows:

§51.166 Prevention of significant deterioration of air quality.

* * * * *

(i) Exemptions. * * *

(2) The plan may provide that requirements equivalent to those contained in paragraphs 

(j) through (r) of this section do not apply to a major stationary source or major 

modification with respect to a particular pollutant if the owner or operator demonstrates 

that, as to that pollutant, the source or modification is located in an area designated as 

nonattainment under section 107 of the Act. Nonattainment designations for revoked 

NAAQS, as contained in 40 CFR part 81, shall not be viewed as current designations 

under section 107 of the Act for purposes of determining the applicability of 

requirements equivalent to those contained in paragraphs (j) through (r) of this section to 

a major stationary source or major modification after the revocation of that NAAQS is 

effective.

* * * * *

10. In §51.372, revise paragraph (b)(2) to read as follows: 

§51.372 State Implementation Plan submissions. 

* * * * * 

(b) * * * 
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 220 of 223

(2) A SIP revision required as a result of an area being newly designated and classified 

under a NAAQS for ozone, including all necessary legal authority and the items specified 

in paragraphs (a)(1) through (a)(8) of this section, shall be submitted no later than the 

deadline for submitting the area’s attainment SIP for the NAAQS in question.

* * * * *

PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION 

PLANS

11. The authority citation for part 52 continues to read as follows:

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

12. In §52.21, revise paragraph (i)(2) to read as follows:

* * * * *

(i) Exemptions. * * *

(2) The requirements of paragraphs (j) through (r) of this section shall not apply to a 

major stationary source or major modification with respect to a particular pollutant if the 

owner or operator demonstrates that, as to that pollutant, the source or modification is 

located in an area designated as nonattainment under section 107 of the Act. 

Nonattainment designations for revoked NAAQS, as contained in 40 CFR part 81, shall 

not be viewed as current designations under section 107 of the Act for purposes of 

determining the applicability of paragraphs (j) through (r) of this section to a major 

stationary source or major modification after the revocation of that NAAQS is effective.

* * * * *
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 221 of 223

PART 70—STATE OPERATING PERMIT PROGRAMS

13. The authority citation for part 70 continues to read as follows:

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

14. In §70.2, under the definition entitled “Major source,” revise paragraphs (3)(i), 

(3)(iii)(A), and (3)(iv) to read as follows:

§ 70.2 Definitions.

* * * * * 

(3) * * *

(i) For ozone nonattainment areas, sources with the potential to emit 100 tpy or more of 

volatile organic compounds or oxides of nitrogen in areas classified or treated as 

classified as “Marginal” or “Moderate,” 50 tpy or more in areas classified or treated as 

classified as “Serious,” 25 tpy or more in areas classified or treated as classified as 

“Severe,” and 10 tpy or more in areas classified or treated as classified as “Extreme”; 

except that the references in this paragraph to 100, 50, 25 and 10 tpy of nitrogen oxides 

shall not apply with respect to any source for which the Administrator has made a 

finding, under section 182(f) (1) or (2) of the Act, that requirements under section 182(f) 

of the Act do not apply;

* * * * * 

(iii) * * *

(A)That are classified or treated as classified as “Serious,” and

* * * * *

(iv) For particulate matter (PM-10) nonattainment areas classified or treated as classified 

as “Serious,” sources with the potential to emit 70 tpy or more of PM-10.
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 222 of 223

* * * * *

PART 71—FEDERAL OPERATING PERMIT PROGRAMS

15. The authority citation for part 71 continues to read as follows:

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

16. In §71.2, under the definition entitled “Major source,” revise paragraphs (3)(i), 

(3)(iii)(A), and (3)(iv) to read as follows:

§ 71.2 Definitions.

* * * * * 

(3) * * *

(i) For ozone nonattainment areas, sources with the potential to emit 100 tpy or more of 

volatile organic compounds or oxides of nitrogen in areas classified or treated as 

classified as “Marginal” or “Moderate,” 50 tpy or more in areas classified or treated as 

classified as “Serious,” 25 tpy or more in areas classified or treated as classified as 

“Severe,” and 10 tpy or more in areas classified or treated as classified as “Extreme”; 

except that the references in this paragraph to 100, 50, 25 and 10 tpy of nitrogen oxides 

shall not apply with respect to any source for which the Administrator has made a 

finding, under section 182(f) (1) or (2) of the Act, that requirements under section 182(f) 

of the Act do not apply;

* * * * *

(iii) * * *

(A)That are classified or treated as classified as “Serious,” and

* * * * *
*** E.O. 12866 Review – Draft – Do Not Cite, Quote, or Release During Review ***

EO12866_Ozone SIP Req_2060-AR34_Final_PreambleRule_20140912

Page 223 of 223

(iv) For particulate matter (PM-10) nonattainment areas classified or treated as classified 

as “Serious,” sources with the potential to emit 70 tpy or more of PM-10.

* * * * *